State v. Powell

• Decision Date: 30 March 1982
• Citation: 442 A.2d 939,186 Conn. 547
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Lowell POWELL. STATE of Connecticut v. Charles D. MOELLER.

Page 939

442 A.2d 939

186 Conn. 547

STATE of Connecticut v. Lowell POWELL.

STATE of Connecticut v. Charles D. MOELLER.

Supreme Court of Connecticut.

Argued Dec. 3, 1981.

Decided March 30, 1982.

Syllabus by the Court

The appeal by the defendants, charged with the crime of conspiracy to commit arson, from the trial court's denial of their motions to have the prosecuting state's attorney disqualified on the ground that he had a personal interest in the outcome of the trial, was dismissed, sua sponte, by this court. The challenged action by the trial court, because it involved a claimed right which could be vindicated on an appeal after the trial, was not a final judgment and thus was not immediately appealable.

The decision in State v. Jones, 180 Conn. 443, 429 A.2d 936, to the extent it is inconsistent with the conclusion reached herein, is overruled.

John A. Burgess, San Francisco, Cal., of the California bar, with whom, on the brief, was Alexander Harinstein, Bridgeport, for appellant (defendant Powell).

Thomas L. Nadeau, Bridgeport, with whom, on the brief, was Theodore I. Koskoff, Bridgeport, for appellant (defendant Moeller).

Richard F. Jacobson, Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellee (state in each case).

Before SPEZIALE, C.J., and PETERS, PARSKEY, SHEA and COVELLO, JJ.

SPEZIALE, Chief Justice.

The defendants in these two cases are charged with conspiracy to commit arson in connection with the March 1, 1975 fire at plant No. 4 of the Grand Sheet Metal Company, known as the Sponge Rubber Factory, in Shelton. The facts concerning the fire itself are discussed in State v. Just, --- Conn. ---, --- - ---, 441 A.2d 98 (43 Conn. L.J., No. 7, pp. 19, 19-20) (1981), and United States v. Bubar, 567 F.2d 192, 195-96 (2d Cir. 1976).

The arson was the subject of both federal and state investigations and prosecutions. The defendant Moeller, the president of the company, was indicted on federal charges and, on January 22, 1976, was acquitted following a jury trial. ¹ The defendant Powell, the principal financial officer of the company, was not charged by federal authorities. The state charges against Moeller and Powell were initiated in May, 1977. ² The defendants have not yet been tried on the pending state charges.

In July, 1980, both defendants moved to disqualify Donald A. Browne, state's attorney of the judicial district of Fairfield, and all members of his staff and office. These motions were denied by the trial court and the defendants have appealed. At oral argument, however, counsel for both defendants: (1) changed their claim on appeal and now seek only the disqualification of state's attorney Browne; and (2) further limited this claim to only one ground for such disqualification. ³

Both defendants allege that state's attorney Browne has evidenced a personal interest in the outcome of the prosecution against them. The basis of this alleged personal interest is Browne's status as a defendant in a federal civil rights action brought by Powell. ⁴ Both defendants conceded at oral argument that the existence of the civil rights action alone would not be sufficient to require Browne's disqualification. The basis of their claim is a statement made in court by Browne in arguing for an early trial of the case which, they contend demonstrated Browne's personal interest. ⁵ The trial court, in denying the defendants' motions, rejected this reasoning. ⁶

Before we can reach the merits of the defendants' claim, however, it is necessary for us to consider the threshold question of whether the appeal by each of the defendants is from a final judgment. ⁷ This court may hear the defendants' appeals only if the order denying their motions to disqualify is a final judgment. See Practice Book § 3000; General Statutes § 52-263.

The finality requirement underlying our appellate review represents a clear and firm policy against piecemeal appeals. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938); Maltbie, Conn.App.Proc. § 10. "Appeal gives the upper court a power of review, not one of intervention." Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). "Adherence to this rule of finality has been particularly stringent in criminal prosecutions because 'the delays and disruptions attendant upon intermediate appeal,' which the rule is designed to avoid, 'are especially inimical to the effective and fair administration of the criminal law.' DiBella (v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 658, 7 L.Ed.2d 614 (1962) )." Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977).

The only Connecticut authority relevant to the finality of the denial of the motion to disqualify holds in effect that such a denial is appealable. In State v. Jones, 180 Conn. 443, 429 A.2d 936 (1980), this court decided on the merits an interlocutory appeal from the denial of a motion to disqualify the prosecuting authority. Although the opinion in State v. Jones, supra, was silent on the appealability question, the decision on the merits and the earlier denial of the state's motion to dismiss for lack of final judgment both demonstrate that this court considered the denial of the motion to disqualify to be a final judgment.

At the time of our decision in State v. Jones, supra, the question of the appealability of the denial of a motion to disqualify, in either the civil or criminal context, was unresolved and in dispute by federal authorities. See, e.g., Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 n.10, 101 S.Ct. 669, 673 n.10, 66 L.Ed.2d 571 (1981) (detailing split in federal circuits). Leading cases decided since State v. Jones, supra, however, have now effectively resolved the question by concluding that the denial of a motion to disqualify is not a final judgment. Firestone Tire & Rubber Co. v. Risjord, supra, 373-79, 101 S.Ct. at 673-76; Armstrong v. McAlpin, 625 F.2d 433, 437-41 (2d Cir. 1980), overruling Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation, 496 F.2d 800 (2d Cir. 1974). ⁸ In view of this recent change, we have reconsidered our position.

Generally, if the trial court order or action sought to be appealed "terminates a separate and distinct proceeding, or if the rights of the parties are concluded so that further proceedings cannot affect them, then the judgment is final for purposes of appeal. E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893 (1975); State v. Roberson, 165 Conn. 73, 83, 327 A.2d 556 (1973)." State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). Cf. Cohen v. Beneficial Industrial Loan Corporation, supra. "In a criminal case, the imposition of sentence is the final judgment of the court. State v. Moore, 158 Conn. 461, 463, 262 A.2d 166 (1969); State v. Smith, 149 Conn. 487, 489, 181 A.2d 446 (1962)." State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). Presentence orders or actions by the trial court which may be considered final for purposes of appeal occur "where the otherwise interlocutory ruling challenged on appeal cannot, if erroneous, later be remedied by suppression of the evidence or reversal of the conviction after trial." State v. Grotton, supra, 293, 429 A.2d 871.

Thus, an order prior to sentencing in a criminal case is immediately appealable only if it involves a claimed right "the legal and practical value of which would be destroyed if it were not vindicated before trial." United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978). We have held, for example, the denial of a claim that the state's prosecution places the defendant in double jeopardy to be immediately appealable. State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979). See Abney v. United States, supra. Such a claim involves not just a right not to be twice punished but also, in the appropriate circumstances, the right not even to be tried. Abney v. United States, supra, 431 U.S. at 660-61, 97 S.Ct. at 2040-41. Other interlocutory orders we have held to be immediately appealable include the claimed right to extend the confidentiality of juvenile proceedings to a criminal proceeding; State v. Anonymous, 173 Conn. 414, 378 A.2d 528 (1977); the claimed right to be adjudicated as a youthful offender; State v. Bell, 179 Conn. 98, 425 A.2d 574 (1979); and the claimed right to have nolled charges dismissed on speedy trial grounds. State v. Lloyd, --- Conn. ---, --- - ---, 440 A.2d 867 (43 Conn. L.J., No. 5, pp. 10, 12-13) (1981). ⁹

Where an interlocutory order involves the denial of a claimed right which may still be vindicated after trial, such a denial is not immediately appealable. Thus, discovery orders are not immediately appealable; State v. Grotton, supra, 180 Conn. at 293, 429 A.2d 871; nor is the claim of a speedy trial violation. United States v. MacDonald, supra; State v. Lloyd, supra, --- Conn. at --- - ---, 440 A.2d 867, 12-13. In the present case, the defendants are not claiming a right not to be tried, nor any other right which would be irreparably lost if the trial were to be held. ¹⁰ The defendants are claiming, at most, that they should not be prosecuted by state's attorney Browne. Even if it is assumed that the trial court's denial of the motions to disqualify was erroneous, any harm caused thereby would clearly be reparable if convictions are obtained.

"Should the present appeals be sustained they would serve as precedents which might go forth to nullify the purpose of the Legislature in authorizing an appeal only from a 'final judgment.' ... To permit appeals from rulings upon such motions might seriously delay the final disposition of pending cases. On the one hand, counsel who sincerely felt that by an order upon such a motion the rights of his client were seriously harmed might feel compelled to take an...