State of Connecticut v. Howard Mergen (2012)

MEMORANDUM OF DECISION RE FIREARMS SAFETY HEARING GENERAL STATUTES § 29–38c(d)

On September 24, 2011 Detective Staurovsky and Officer Musante of the Milford Police Department searched the residence of the defendant, Howard Mergen and seized thirty-nine firearms, assorted ammunition, one air rifle and a bolt action assembly pursuant to a warrant issued and executed under General Statutes § 29–38c(a).¹  On September 29, 2011, the court clerk sent notice to the defendant notifying him that a court hearing regarding the seizure of the firearms and ammunition would be held on October 6, 2011, pursuant to General Statutes § 29–38c(d).²  On October 6, 2011, and again, on October 13, 2011, the defendant, who was represented by counsel, waived the requirement of the fourteen-day hearing provided by General Statutes § 29–38c(d).³  The state and the defendant then agreed to a continuance for ninety days to allow the defendant to seek medical treatment.   On January 13, 2012 and April 27, 2012, the parties agreed to a further continuance of the matter.

On May 11, 2012, the court held a hearing to determine whether the seized items should be returned to the defendant pursuant to General Statutes § 29–38c(d).  Upon review of the testimony and exhibits presented, the court finds the state has not met its burden of proving all material facts by clear and convincing evidence that the defendant poses a risk of imminent personal injury to himself or to other individuals.   The court hereby orders that the firearms and ammunition should be returned to the defendant.

I

Search and Seizure Warrant

The search and seizure warrant and the affidavit attached thereto, reveal that Officer Musante of the Milford Police Department was dispatched to the Milford Hospital on a report that the defendant Mergen had made suicidal statements.   Mergen was at the Emergency Room Department of the hospital for treatment of injuries sustained in a motor vehicle accident earlier the previous day.   Musante met with Marie Blackmore who is employed by the hospital as a registered nurse and was acting in the capacity of “Charge Nurse” in the Emergency Room that day.   Blackmore, a witness at this hearing informed Musante that Mergen had made suicidal statements to Dr. Michael Bloch, who treated Mergen in the Emergency Room. Blackmore stated that Doctor Bloch's patient notes indicated that Mergen had informed his daughter, Holly Hoang, that when he was released from the hospital, he was going to shoot himself in the head.   Mergen had access to many firearms at his residence.   Blackmore related this information to the attending physician on duty and that she and the attending physician determined that Mergen should be held for a psychiatric evaluation.   Blackmore then provided Officer Musante with contact information for Mergen's daughter Holly Hoang.

Officer Musante then contacted Hoang by telephone and Hoang informed him that Mergen was suffering from an alcohol abuse problem and undiagnosed depression/mental health issues.   Hoang then repeated her earlier statement at the hospital that her father had threatened to commit suicide when he was released from the hospital and emphasized this by pointing his finger at his head several times and mimicking the firing of a gun.   Hoang told the officer that her father's behavior was becoming more erratic.   Based on the statements of Mergen to his daughter and Dr. Bloch, Officer Musante and Detective Staurovsky applied for a search and seizure warrant for Mergen's firearms as Mergen was deemed to be a person posing a risk to himself or others.   The warrant was issued by the court (Malone, J.).   On September 24, 2011.   The result was the seizure of thirty-nine firearms, assorted ammunition, one air rifle and a bolt action assembly from the defendant Mergen's residence.

II

The Evidentiary Hearing

Dr. Block testified that when he examined the defendant, the defendant was “awake, alert, agitated and intoxicated.” ⁴  Bloch was able to speak with Mergen about the events of the motor vehicle accident that resulted in Mergen being at the hospital for treatment of injuries.   However, Mergen never related any suicidal tendencies to Bloch.   Rather the information Dr. Bloch received came from information provided to him by Holly Hoang, Mergen's daughter.   A review of Dr. Bloch's medical file for treatment rendered to the defendant at the Emergency Room contained no notations relating to any statements regarding suicide or suicidal tendencies.   Bloch testified that there was no psychiatrist on duty at that time and none would be available until the next morning.   The defendant was to be held overnight.   Mergen was held at Milford Hospital for three days and was transferred to Bridgeport Hospital where he was held for another five days.   In, all Mergen was hospitalized against his will for a total of eight days for psychiatric evaluation.

The state then called Nurse Blackmore as a witness.   Blackmore testified that she did not treat Mergen, while he was at the hospital.   She remembered seeing the defendant at the hospital but could not recall his condition on that day or what he looked like.   She also testified that the defendant never threatened suicide to her or in her presence.   Her knowledge of Mergen's alleged threats of suicide were based solely on her review of Dr. Bloch's records, which related that the reporting of the threats were based upon the statements of Mergen's daughter.

Holly Hoang, Mergen's daughter, testified next.   She stated that she had not lived with the defendant for the past thirty years.   She arrived at the hospital after being notified by her father's neighbor, that Mergen was being treated.   Upon her arrival she noted that her father did not appear to be injured, but he did appear intoxicated.   She testified that Mergen was talking about hurting himself and was pointing his fingers at his head in a shooting motion.   She testified that Mergen specifically said he would shoot himself after discharge from the hospital.   Hoang was aware that Mergen possessed many firearms at his house and was concerned for his safety.   She then informed the hospital staff of Mergen's statements and his ownership of guns.   She testified that Mergen had been depressed since his wife died.   She lastly testified that with her encouragement, Mergen had seen a psychiatrist on one or two occasions, since the date of the incident.   She continues to have concerns about the defendant's drinking and his ownership of the subject firearms.

The state then called Officer Musante who testified that he responded to a call from the Milford Hospital Emergency Room. When he arrived at the hospital, he spoke only to Nurse Blackmore, who informed him that Mergen's daughter had informed Blackmore that her father was threatening to commit suicide.   Musante did not speak to the defendant or the defendant's daughter, Holly Hoang.   Based on this information, Musante and Detective Staurovsky applied for and received the Firearms Search and Seizure Warrant.   As a result of a search of Mergen's residence, they seized the subject firearms and ammunition, as well as, Mergen's pistol permit.

The state then rested its case without entering into evidence any records or documentation regarding Mergen's eight-day hospitalization at Milford and Bridgeport Hospitals, where psychiatric evaluations were presumably conducted.

The defendant testified that he was involved in a motor vehicle accident at his residence at approximately 4:00 p.m. on September 23, 2011.⁵  He was then transported to the Milford Hospital Emergency Room. His daughter eventually arrived and he spoke with her, but he did not recall making any suicidal statements to her.   He testified that he was not suicidal and had never made any statements in the past threatening suicide.   Mergen stated that the guns at his residence belonged to him and his adult son and that he was keeping his son's guns at his house because his son had small children at this own house.   Mergen stated that he would go target and skeet shooting at a facility in Wallingford, Connecticut.   He stated that he had been hospitalized for eight days at Milford and Bridgeport Hospitals for psychiatric evaluation as a result of this incident.

The defense then presented a report (Ex. A.) From Dr. Theddeus Iheanacho dated February 4, 2012.   Dr. Iheanacho evaluated the defendant, at the defendant's request, for depression.   The report states that based on a full clinical interview and “mental state examination,” the defendant had “no acute symptoms of depression or mood disorder.”

III

General Statutes § 29–38c(d)

General Statutes § 29–38c(d) provides:  “Not later than fourteen days after the execution of a warrant under this section, the court for the geographical area where the person named in the warrant resides shall hold a hearing to determine whether the seized firearms should be returned to the person named in the warrant or should continue to be held by the state.   At such hearing the state shall have the burden of proving all material facts by clear and convincing evidence.   If, after such hearing, the court finds by clear and convincing evidence that the person poses a risk of imminent personal injury to himself or herself or to other individuals, it may order that the firearm or firearms seized pursuant to the warrant issued under subsection (a) of this section continue to be held by the state for a period not to exceed one year, otherwise the court shall order the seized firearm or firearms to be returned to the person named in the warrant.   If the court finds that the person poses a risk of imminent personal injury to himself or herself or to other individuals, it shall give notice to the Department of Mental Health and Addiction Services which may take such action pursuant to chapter 319i as it deems appropriate.” ⁶

“The burden of proof under the clear and convincing evidence standard is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”  (Internal quotation marks omitted.)  Correia v. Rowland, 263 Conn. 453, 475 n. 22, 820 A.2d 1009 (2003).   This standard is “higher than a probability but lower than beyond reasonable doubt ․” (Internal quotation marks omitted.)  Miller v. Commissioner of Correction, 242 Conn. 745, 791, 700 A.2d 1108 (1997).

The state has not met it's burden of proof by clear and convincing evidence.   There insufficient evidence to prove that the defendant, as he appears today, poses a threat of imminent harm or danger to anyone, including himself.   Specifically, the state's claims are fatally flawed by the fact that no evidence was introduced at the hearing showing that the defendant has ever threatened anyone and no documentation of any alleged mental illness or disorders was offered despite the fact that the defendant was hospitalized against his will, for eight days in late September and early October 2011, for psychiatric evaluations.   The one set of medical records offered by the state only contained the medical treatment rendered to the defendant for physical injuries at the Milford Hospital Emergency Room. The only references in those records to suicidal threats or tendencies were attributed to the defendant's daughter, who was the sole informant.   No such statements were made by the defendant to Dr. Bloch, Nurse Blackmore, or Officer Musante.   It is also conceded by the state that it has no knowledge the defendant has exhibited violent or threatening behavior in the past and it is admitted that the defendant has no criminal record.

The court is always reluctant to order that seized firearms be returned to owners as a result of an incident involving intoxication.   However, this incident did not involve the use of, or the threatened use of the seized firearms.   Therefore, despite the court's reluctance, the state has failed to show by clear and convincing evidence that the defendant poses a risk of imminent personal injury to himself or others.  “The state has failed to offer sufficient evidence that the defendant harbors a propensity to cause harm by firearm misuse—let alone a propensity toward ‘imminent’ personal injury.”   (Internal quotation marks omitted.)  In Re James Nardelli–Firearm Safety Hearing, supra, 50 Conn.Sup. 251.

The court is well aware of the public policy of the state of Connecticut in protecting the safety of its citizens through gun control statutes.⁷  The court, however, must follow the law and General Statutes § 29–38c.   This case has failed for lack of clear and convincing proof.   The state has failed to introduce “clear and convincing evidence that the [defendant] poses a risk of imminent personal injury to himself ․ or to other individuals ․” General Statutes § 29–38c(d).⁸

Order

Accordingly, for the reasons stated herein, the court orders that all seized items be returned to the defendant.

THE COURT

BY Judge Richard E. Arnold

FOOTNOTES

FN1. General Statutes § 29–38c(a) provides in pertinent part:  “Upon complaint on oath by ․ any two police officers, to any judge of the Superior Court, that such ․ police officers have probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person, such judge may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer's custody any and all firearms..  FN1. General Statutes § 29–38c(a) provides in pertinent part:  “Upon complaint on oath by ․ any two police officers, to any judge of the Superior Court, that such ․ police officers have probable cause to believe that (1) a person poses a risk of imminent personal injury to himself or herself or to other individuals, (2) such person possesses one or more firearms, and (3) such firearm or firearms are within or upon any place, thing or person, such judge may issue a warrant commanding a proper officer to enter into or upon such place or thing, search the same or the person and take into such officer's custody any and all firearms.

FN2. Section 29–38c(d) provides in relevant part:  “Not later than fourteen days after the execution of a warrant under this section, the court for the geographical area where the person named in the warrant resides shall hold a hearing to determine whether the seized firearms should be returned to the person named in the warrant or should continue to be held by the state ․” The statute later notes that the court “may order” that seized firearms remain in the custody of the state for a period not to exceed one year.  (Emphasis added.)  General Statutes § 29–38c(d)..  FN2. Section 29–38c(d) provides in relevant part:  “Not later than fourteen days after the execution of a warrant under this section, the court for the geographical area where the person named in the warrant resides shall hold a hearing to determine whether the seized firearms should be returned to the person named in the warrant or should continue to be held by the state ․” The statute later notes that the court “may order” that seized firearms remain in the custody of the state for a period not to exceed one year.  (Emphasis added.)  General Statutes § 29–38c(d).

FN3. See. State v. Reddy, 135 Conn.App. 65 (2012)..  FN3. See. State v. Reddy, 135 Conn.App. 65 (2012).

FN4. The defendant's medical exam revealed his blood alcohol level was .232.   The breathalyzer alcohol level was .188.   No evidence was offered by either the state or the defendant regarding any arrest of the defendant as a result of the one car motor vehicle accident..  FN4. The defendant's medical exam revealed his blood alcohol level was .232.   The breathalyzer alcohol level was .188.   No evidence was offered by either the state or the defendant regarding any arrest of the defendant as a result of the one car motor vehicle accident.

FN5. The defendant stated he backed out of his driveway proceeding across the road colliding with the steps on his neighbor's home..  FN5. The defendant stated he backed out of his driveway proceeding across the road colliding with the steps on his neighbor's home.

FN6. This forfeiture provision is similar to the provision for in rem proceedings under General Statutes § 54–36h as both assign the same burden of proof to the state in a civil action.   That statute provides in pertinent part:  “(b) Not later than ninety days after the seizure of moneys or property subject to forfeiture pursuant to subsection (a) of this section, in connection with a lawful criminal arrest or a lawful search, the Chief State's Attorney or a deputy chief state's attorney, state's attorney or assistant or deputy assistant state's attorney may petition the court in the nature of a proceeding in rem to order forfeiture of said moneys or property.   Such proceeding shall be deemed a civil suit in equity, in which the state shall have the burden of proving all material facts by clear and convincing evidence.”  In Re James Nardelli–Firearm Safety Hearing, 50 Conn.Sup. 246, 250 n.2, 918 A.2d 1081 (2007)..  FN6. This forfeiture provision is similar to the provision for in rem proceedings under General Statutes § 54–36h as both assign the same burden of proof to the state in a civil action.   That statute provides in pertinent part:  “(b) Not later than ninety days after the seizure of moneys or property subject to forfeiture pursuant to subsection (a) of this section, in connection with a lawful criminal arrest or a lawful search, the Chief State's Attorney or a deputy chief state's attorney, state's attorney or assistant or deputy assistant state's attorney may petition the court in the nature of a proceeding in rem to order forfeiture of said moneys or property.   Such proceeding shall be deemed a civil suit in equity, in which the state shall have the burden of proving all material facts by clear and convincing evidence.”  In Re James Nardelli–Firearm Safety Hearing, 50 Conn.Sup. 246, 250 n.2, 918 A.2d 1081 (2007).

FN7. Connecticut's gun control legislation “clearly indicate[s] a legislative intent to protect the safety of the general public from individuals whose conduct has shown them to be lacking the essential character or temperament necessary to be entrusted with a weapon.”   (Internal quotation marks omitted.)  Dwyer v. Farrell, 193 Conn. 7, 12, 475 A.2d 257 (1984).   Connecticut has an “extraordinary” interest in public safety to support reasonable gun control legislation and such interest outweighs the burden on individual liberties.   See Rabbitt v. Leonard, 36 Conn.Sup. 108, 413 A.2d 489 (1979);  In Re James Nardelli–Firearm Safety Hearing, supra, 50 Conn.Sup. 252 n.4..  FN7. Connecticut's gun control legislation “clearly indicate[s] a legislative intent to protect the safety of the general public from individuals whose conduct has shown them to be lacking the essential character or temperament necessary to be entrusted with a weapon.”   (Internal quotation marks omitted.)  Dwyer v. Farrell, 193 Conn. 7, 12, 475 A.2d 257 (1984).   Connecticut has an “extraordinary” interest in public safety to support reasonable gun control legislation and such interest outweighs the burden on individual liberties.   See Rabbitt v. Leonard, 36 Conn.Sup. 108, 413 A.2d 489 (1979);  In Re James Nardelli–Firearm Safety Hearing, supra, 50 Conn.Sup. 252 n.4.

FN8. “The statute's legislative history indicates that “imminent” means “anywhere from hours to a few days in time ․ [such that] the individual is making threats of violence broadly which do not rise to the level of a legal [or actionable] threat ․” (Citations omitted;  internal quotation marks omitted.)  In Re James Nardelli Firearm Safety Hearing, supra, 50 Conn.Sup. 252 n.3..  FN8. “The statute's legislative history indicates that “imminent” means “anywhere from hours to a few days in time ․ [such that] the individual is making threats of violence broadly which do not rise to the level of a legal [or actionable] threat ․” (Citations omitted;  internal quotation marks omitted.)  In Re James Nardelli Firearm Safety Hearing, supra, 50 Conn.Sup. 252 n.3.

Arnold, Richard E., J.