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State v. Wang

Supreme Court of Connecticut

September 13, 2016

STATE OF CONNECTICUT
v.
LISHAN WANG

          Argued May 5, 2016

          Mark Rademacher, assistant public defender, for the appellant (defendant).

          Nancy L. Walker, deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Eugene Calistro, Jr., senior assistant state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. [*]

          OPINION

          PALMER, J.

         The issue that we must resolve in this appeal is whether the trial court properly granted the state's motion to forcibly medicate the defendant, Lishan Wang, in order to restore his competency to stand trial. The defendant was charged with murder and various other offenses in connection with the shooting death of Vajinder Toor in the town of Branford on April 26, 2010. Over the next several years, the defendant was found incompetent to stand trial, restored to competency, and then found incompetent again. After the second finding of incompetency, the trial court conducted evidentiary hearings on the question of whether the defendant should be forcibly medicated. The court ultimately concluded that the state had established by clear and convincing evidence that forcible medication of the defendant would not violate his federal due process rights under the test set forth in the decision of the United States Supreme Court in Sell v. United States, 539 U.S. 166, 180-81, 123 S.Ct. 2174, 156 L.Ed.2d 197 (2003), and ordered that the defendant be forcibly medicated. This appeal followed.[1] The primary claim that the defendant raises on appeal is that the trial court incorrectly determined that it was ‘‘substantially likely'' that forcibly medicating him would restore his competency to stand trial, as that phrase is used in Sell. Id., 181; see id. (to order involuntary administration of drugs for trial competence purposes, court ‘‘must find that [the] administration of the drugs is substantially likely to render the defendant competent to stand trial''). We disagree and affirm the decision of the trial court.

         The record reveals the following undisputed facts and procedural history. On April 26, 2010, Toor, a physician, was shot and killed outside his residence in Branford. Later that day, the defendant, who also was a physician, was arrested and charged with Toor's murder, the attempted murder of Toor's wife, carrying a pistol without a permit and possession of a weapon in a motor vehicle. On September 28, 2010, the trial court, Fasano, J., found the defendant incompetent to stand trial but restorable, and ordered that he be admitted to the Whiting Forensic Division of Connecticut Valley Hospital (Whiting) for treatment. Thereafter, Judge Fasano found that the defendant had been restored to competency and granted his motion to represent himself.

         On January 30, 2015, Thomas Ullmann, the supervisor of the Office of the Public Defender for the judicial district of New Haven, filed a motion for the appointment of counsel, in which he requested that the trial court revoke the defendant's status as a self-represented party and appoint a public defender to represent him on the ground that the defendant was incompetent to represent himself. In support of this claim, Ullmann referred to hundreds of motions that the defendant had filed in the trial court, including at least seventy in which the defendant had sought permission to obtain information from Kingsbrook Jewish Medical Center (Kingsbrook) in Brooklyn, New York, where the defendant had worked for two years with Toor until the defendant was terminated in May, 2008. In other motions, the defendant claimed that he had been wrongfully terminated by Kingsbrook because of false accusations made by Toor, claimed that the defendant, not Toor, was the real victim, and questioned the identification of Toor's body by the Office of the Chief Medical Examiner. After an evidentiary hearing, the trial court, O'Keefe, J., found the defendant incompetent to stand trial and ordered that he again be admitted to Whiting for evaluation and treatment.[2] The trial court also ordered that a public defender represent the defendant until it could be determined whether treatment could restore him to competency.

         On September 14, 2015, the trial court conducted a second competency hearing for the purpose of determining whether the defendant had been restored to competency. Mark S. Cotterell, a psychiatrist and forensic monitor employed by Whiting, testified at the hearing that he had been involved in the evaluation of the defendant from late 2010 until early 2011 during the defendant's first admission to Whiting. After the defendant was sent back to Whiting in April, 2015, Cot-terell again had been assigned to evaluate him and to prepare a report. In performing this task, Cotterell met repeatedly with the defendant and with members of his treatment team, and reviewed his treatment records. Cotterell testified that the defendant had been diagnosed with ‘‘unspecified schizophrenia spectrum and other psychotic disorder.'' In Cotterell's opinion, the defendant was not competent to stand trial but could be restored to competency. Cotterell also testified that the least restrictive placement that would still be effective would be for the defendant to remain at Whiting as an inpatient. Cotterell further testified that there were medications that could help restore the defendant to competency, but the defendant did not believe that he had any psychiatric disorder and did not want to take any medications. According to Cotterell, studies showed that the success rate of such medications was ‘‘anywhere from the mid-50 percent range up to about 70 percent.'' Cotterell also testified that, ‘‘based on our clinical experience, we can probably get at least . . . that much, if not sometimes more, simply because the research doesn't always include longer term treatment.'' At the conclusion of the hearing, the trial court found that the defendant was incompetent to stand trial and that the ‘‘normal treatment'' that Cotterell had described was ‘‘not going to work here.''[3] The trial court appointed Gail Sicilia, a psychiatric advanced practice registered nurse employed by Yale University, as the defendant's health-care guardian pursuant to General Statutes § 54-56d (k) (3) (A). Finally, the trial court ordered that Sicilia prepare a report setting forth her findings and recommendations concerning the forced administration of antipsychotic medication to the defendant.

         On October 26, 2015, the trial court held an evidentiary hearing on the question of whether the defendant should be forcibly medicated. Cotterell testified at the hearing that, despite the ongoing efforts of the staff at Whiting, the defendant had not made any substantial progress toward competency since being admitted to Whiting in April, 2015.[4] Cotterell recommended that the defendant be treated with the antipsychotic medications Olanzapine and Ziprasidone. Cotterell testified that these medications had ‘‘a substantial likelihood of treating the symptoms'' that the defendant was experiencing, ‘‘based on our clinical experience dealing with these kinds of patients and these kinds of medication.'' In addition, the published research indicated a ‘‘greater than 50 percent chance . . . that [those medications will result] in a substantial improvement in the [patient's] clinical state.'' Cotterell wrote in a memorandum documenting the proposed medication regimen for the defendant that the ‘‘[n]otable potential side effects'' of Olanzapine are dizziness, dry mouth, joint pain, constipation, orthostatic hypotension, [5] and tachycardia, and that there is ‘‘some risk'' of weight gain, hyperglycemia or sedation. A notable side effect is one that is either frequent or significant, or both. The ‘‘notable potential side effects'' of Ziprasidone are dizziness, stiffness, sedation, nausea, dry mouth, skin rash and low blood pressure, and there is a ‘‘low [risk]'' of weight gain or sedation with long-term use. Cotterell testified that ‘‘a lot of clients who use these medications . . . don't actually experience sedation'' and that sedation was ‘‘not something that [one] would expect to be universally present.'' In addition, he testified that the staff at Whiting would carefully monitor the defendant and any side effects from his medications that could interfere with his ability to present a defense at trial and would report their observations to the court.

         Sicilia testified at the October 26, 2015 hearing that she had met several times with the defendant, and also with Cotterell and others who provided care to the defendant at Whiting. Sicilia's observations of the defendant were consistent with Cotterell's diagnosis. Sicilia testified that, in her opinion, it would be in the defendant's best interest to be treated with antipsychotic medications, both for purposes of restoring him to competency to stand trial and for his general mental health. Specifically, she believed that the defendant's ‘‘delusions affect how he's functioning'' and that the medications would ‘‘[decrease] the delusions to the point where he could ignore some of [them] . . . go about his daily living . . . [and] function at a higher level.'' When she suggested this course of treatment to the defendant, however, he adamantly refused, stating that he did not need medication and that he should not be at Whiting. In Sicilia's professional opinion, there were no other treatments that would be less intrusive and that could restore the defendant to competency.

         After the October 26, 2015 hearing, the state filed a motion, along with a supporting memorandum of law, requesting that the trial court order the administration of medication to the defendant, and the defendant filed a memorandum of law in opposition to forced medication. The trial court heard arguments on the issue on November 18, 2015, and, at the conclusion of the hearing, found that the state had proven all of the elements of the test set forth in Sell v. United States, supra, 539 U.S. 179-81, for establishing the constitutionality of an order of involuntary medication by clear and convincing evidence.[6] Accordingly, the court granted the state's motion for forced medication. Thereafter, the trial court supplemented its findings with a memorandum of decision in which it credited Cotterell's testimony that the recommended medications ‘‘are effective in restoring patients to competency from the mid-50 percent range up to 70 percent.'' The court concluded that this rate of effectiveness constituted a substantial likelihood that the defendant would be restored to competency for purposes of Sell. The court also concluded that the medications are ‘‘substantially unlikely to have side [e]ffects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense'' and that there are no less intrusive treatments that would be effective. Finally, the court credited Sicilia's testimony that the administration of the medications would be medically appropriate and in the defendant's best medical interest.

         This appeal followed. The defendant claims that the trial court incorrectly determined that the state proved by clear and convincing evidence that there is ‘‘a need for [forced medication] sufficiently important to overcome the [defendant's] protected interest in refusing it . . . .'' Sell v. United States, supra, 539 U.S. 183. Specifically, the defendant contends that the state failed to prove that it is substantially likely that forced medication will restore him to competency because a 55 to 70 percent probability of restoration to competency does not constitute a substantial likelihood for purposes of Sell, and, even if it did, the state failed to prove that there was a 55 to 70 percent probability that forced medication would restore the defendant to competency. In addition, the defendant challenges the trial court's findings that (1) it is substantially unlikely that the side effects of forced medication will deprive the defendant of his right to a fair trial, (2) there is no less restrictive alternative to forced medication, and (3) the involuntary administration of medication is in the defendant's best medical interest. We conclude that the trial court applied the proper standard and that its findings were supported by clear and convincing evidence.

         The following legal principles guide our analysis of the defendant's claims. ‘‘It is well established that [a]n individual has a constitutionally protected liberty interest in avoiding involuntary administration of antipsychotic drugs-an interest that only an essential or overriding state interest might overcome. [Id., 178-79] (quoting Riggins v. Nevada, 504 U.S. 127, 134, 135, 112 S.Ct. 1810, 118 L.Ed.2d 479 [1992]). This is because [t]he forcible injection of medication into a nonconsenting person's body represents a substantial interference with that person's liberty. Washington v. Harper, 494 U.S. 210, 229, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990). Indeed, it has been observed that when the purpose or effect of forced drugging is to alter the will and the mind of the subject, it constitutes a deprivation of liberty in the most literal and fundamental sense. [Id., 237-38] (Stevens, J., dissenting).

         ‘‘At the same time, the government has a significant interest in bringing a person accused of a serious crime to trial. See Sell [v. United States, supra, 539 U.S. 180] The power to bring an accused to trial is fundamental to a scheme of ordered liberty and prerequisite to social justice and peace Illinois v. Allen, 397 U.S. 337, 347, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J, concurring). It surely is not an overstatement to observe that the government's ability to enforce the criminal laws in accordance with due process is the foundation on which social order rests and from which individual liberties emanate. Thus, when an individual commits a crime, he forfeits his liberty interests to the extent necessary for the government to bring him to trial. Recognizing this important governmental interest, the [United States] Supreme Court has held that in some circumstances, forced medication to render a defendant competent to stand trial for a crime that [that person] is charged with committing may be constitutionally permissible, even though the circumstances in which it is appropriate may be rare. See Sell [v. United States, supra, 180]. As the [United States Supreme] Court stated . . . [in Sell]:

         ‘‘[T]he [c]onstitution permits the [g]overnment involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. [Id., 179].

         ‘‘Articulating a standard for determining the circumstances in which the government may obtain a court order to medicate involuntarily a defendant to render him competent to stand trial, the [United States] Supreme Court has focused on the competing interests of the defendant and the government. . . . United States v. Bush, 585 F.3d 806, 813 (4th Cir. 2009). This standard requires the government to satisfy a four part test. First, it must show that important governmental interests are at stake. . . . An important governmental interest exists when the defendant is accused of a serious crime and [s]pecial circumstances do not undermine the government's interest in trying him for that crime. . . . Second, it must show that involuntary medication will significantly further the state's interest. . . . In other words, it must show that the involuntary administration of the medication is both (a) substantially likely to render the defendant competent to stand trial and (b) substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense, thereby rendering the trial unfair. . . . Third, it must show that involuntary medication is necessary to further its interests by showing that any alternative, less intrusive treatments are unlikely to achieve substantially the same result. . . . Fourth, it must show that the administration of the drugs is medically appropriate, or that it is in the defendant's best medical interest in light of his medical condition.[7] . . . United States v. Evans, 404 F.3d 227, 235 (4th Cir. 2005), quoting Sell v. United States, supra, 539 U.S. 180-81.'' (Footnote added; internal quotation marks omitted.) State v. Seekins, 299 Conn. 141, 154-56, 8 A.3d 491 (2010).

         The court in Sell did not prescribe the standard of appellate review of the trial court's conclusions with respect to the four factors for determining the constitutionality of forced medication. Most federal circuit courts of appeals have concluded, however, that the first prong, regarding the government's interest in restoring the defendant to competency, is a question of law subject to de novo review and the remaining prongs are factual questions subject to review for clear error. See United States v. Dillon, 738 F.3d 284, 291 (D.C. Cir. 2013) (citing cases). Although we generally agree with this approach, we disagree that the second prong presents a pure question of fact. Rather, we conclude that, for purposes of determining whether ‘‘the involuntary administration of the medication is both (a) substantially likely to render the defendant competent to stand trial and (b) substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense''; (internal quotation marks omitted) State v. Seekins, supra, 299 Conn. 156; the meanings of the terms ‘‘substantially likely'' and ‘‘substantially unlikely'' are questions of law subject to de novo review. This is because, as we discuss subsequently in this opinion, these terms have no fixed, mathematical meanings that can be readily understood and applied by an expert or fact witness; rather, their meanings vary depending on the legal interests involved, which are questions for the court. Whether the state has satisfied those legal standards, however, is a question of fact. We review the trial court's factual findings for clear error, which occurs ‘‘when there is no evidence in the record to support [the court's finding of fact], or when, although there is evidence to support the factual finding, the reviewing court, upon consideration of the entire record, is left with a definite and firm conviction that a mistake has been committed.'' (Internal quotation marks omitted.) Lapointe v. Commissioner of Correction, 316 Conn. 225, 264 n.35, 112 A.3d 1 (2015).

         The court in Sell also did not prescribe the government's standard of proof. Most federal courts that have considered the issue, however, have concluded that the Sell factors must be proven by clear and convincing evidence. See, e.g., United States v.Diaz, 630 F.3d 1314, 1331 (11th Cir.) (‘‘[o]ther circuit courts that have considered this issue uniformly concluded that in Sell cases the government bears the burden of proof on factual questions by clear and convincing evidence''), cert. denied, ___U.S.___, 132 S.Ct. 128, 181 L.Ed.2d 49 (2011). In light of the nature and importance of the right at issue, we agree with and adopt that standard. Cf. State v.Garcia, 233 Conn. 44, 86, 658 A.2d 947 (1995) (before United States Supreme Court's decision in Sell, state was required to ...


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