Rowe v. Superior Court, No. 17718.

• Citation: 960 A.2d 256,289 Conn. 649
• Decision Date: 09 December 2008
• Docket Number: No. 17718.
• Court: Supreme Court of Connecticut
• Parties: Lamar ROWE v. SUPERIOR COURT, Judicial District of New Haven.

960 A.2d 256

289 Conn. 649

Lamar ROWE v. SUPERIOR COURT, Judicial District of New Haven.

No. 17718.

Supreme Court of Connecticut.

Argued May 19, 2008.

Decided December 9, 2008.

Neal Cone, senior assistant public defender, for the plaintiff in error.

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, was Michael Dearington, state's attorney, and James G. Clark, senior assistant state's attorney, for the defendant in error.

ROGERS, C.J., and KATZ, PALMER, ZARELLA and SCHALLER, Js.

SCHALLER, J.

The plaintiff in error, Lamar Rowe (plaintiff), brings this writ of error seeking reversal in part of the trial court's summary judgment of criminal contempt rendered pursuant to General Statutes § 51-33.¹ He contends that the trial court improperly found that he had committed a second, separate act of contempt for what was a single, continuing act of contempt in his repeated refusals to provide testimony as a witness in a criminal trial. The plaintiff contends that the second finding of contempt violates the common law, as well as his constitutional rights to due process and to protection against double jeopardy. We agree with the plaintiff's common-law claim, and, accordingly, we grant the writ of error.

The record reveals the following undisputed facts. On April 18, 2005, the plaintiff was picked up by the New Haven police department. At that time, he provided a statement to the police regarding the occupants and location of a black Acura on the evening of April 16, 2005, and on the morning of April 17, 2005. The state later brought charges against Hilbert Roberts, whom the plaintiff had identified as one of the occupants of the Acura, for a murder committed on April 17, 2005.

On July 26, 2006, pursuant to a subpoena issued by the state, the plaintiff appeared as a witness at Roberts' trial. Outside the presence of the jury, the state questioned the plaintiff. After eliciting one word responses to some background questions unrelated to the case,² the following exchange between the prosecutor and the plaintiff took place:

"Q. Do you know the defendant in this case . . . ?

"A. Plead the fifth.

"Q. On what grounds?

"A. I don't wanna to talk to you."

The state explained to the plaintiff that he could not assert a fifth amendment privilege against testifying unless his testimony might expose him to the possibility of criminal liability. The state then represented to the court that none of the questions it had posed, or intended to pose, would give rise to that possibility. The court therefore advised the plaintiff that, if he did not have a valid fifth amendment privilege and refused to testify, the court could find him in contempt, for which he could receive jail time. The plaintiff responded: "I refuse to testify." The court nonetheless gave the state permission to conduct further questioning. The state obtained one word responses to two questions as to whether the plaintiff previously had spoken with the state and whether the state had shown him the statement that he had given to the police. When the state asked the plaintiff to identify the statement, the plaintiff refused to respond, reiterated that he refused to testify, and repeatedly asserted that he did not want to respond to any of the state's questions. After the state persisted, the plaintiff sought the court's intervention. The court acquiesced to the state's request for some leeway, and the state posed another question, to which the plaintiff responded: "What did I just tell you? I ain't answering no questions, right?" The court declined the state's request to hold the plaintiff in contempt at that time. Instead, it decided to appoint a public defender to advise the plaintiff and to take the matter up the following morning.

On July 27, 2006, Thomas Farver appeared as the plaintiff's counsel. Farver informed the court that, although he believed that the plaintiff did have a potentially valid fifth amendment privilege, that privilege did not relate directly to the charges in Roberts' trial and, in any event, the plaintiff did not want to assert the privilege.³ The court then stated to the plaintiff: "If you don't claim it, you run the risk of me putting you in jail, and I will tell you, you could be sentenced on each refusal to answer a question for up to six months. ..." The state then posed the same question that the plaintiff had refused to answer the previous day: "[D]o you know the defendant in this case ... ?" The plaintiff gave no response. The state asked the court to order the plaintiff to respond. After the court asked the plaintiff whether it was correct in understanding that he was not asserting a fifth amendment privilege as to this question, the plaintiff acknowledged that he knew Roberts.

The state next asked: "Did you see him ... driving a black Acura Integra on April 16, 2005?" The plaintiff thrice stated, the latter two times in response to inquiries by the court, that he refused to answer that question. The court then asked: "Is there anything else you want to say before I impose sentence upon you for refusing to answer a direct order of the court to answer that question?" The plaintiff responded, "Yeah. I don't want to be asked no more questions." The court found the plaintiff in contempt and imposed a sentence of six months.

The state then continued questioning the plaintiff: "[D]id you see ... the man sitting over there, without the glasses at the table, driving a black Acura Integra on Sunday morning, April 17, 2005?" The plaintiff twice refused to answer the question. The court ordered him to answer, explaining that the question "involves a separate date from the first one," but the plaintiff still refused to answer the question. The court made a second finding of contempt and imposed another six month sentence, consecutive to the sentence previously imposed. The state then asked Farver for the record: "[A]lthough I obviously know the answer to this question, is it your client's intention to answer no further questions ... ?" The plaintiff responded affirmatively. The trial court thereafter terminated the proceedings and rendered judgment of guilty on two counts of contempt in accordance with its findings.

In this writ of error that followed, the plaintiff contends that the second finding of contempt violated the common law, as well as his constitutional rights to due process and to protection against double jeopardy. We conclude that the plaintiff is entitled to prevail on his common-law claim. Therefore, we need not reach the constitutional issues raised. See State v. Ritrovato, 280 Conn. 36, 50, 905 A.2d 1079 (2006) (recognizing that "[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case" [internal quotation marks omitted]).

Before turning to the issues presented, we note the parameters of our review. "The present case, which involves a review of a summary criminal contempt proceeding, comes before us on a writ of error which is the sole method of review of such proceedings. ... The scope of our review reaches only those matters appearing as of record. ... In a review of summary criminal contempt, the inquiry is limited to a determination of the jurisdiction of the court below. ... Subsumed in this inquiry are three questions, namely, (1) whether the designated conduct is legally susceptible of constituting a contempt ... (2) whether the punishment imposed was authorized by law ... and (3) whether the judicial authority was qualified to conduct the hearing." (Citations omitted; internal quotation marks omitted.) Martin v. Flanagan, 259 Conn. 487, 494, 789 A.2d 979 (2002).

I

We first must address a threshold question of mootness, which implicates this court's jurisdiction to entertain the writ. Monsam v. Dearington, 82 Conn.App. 451, 455, 844 A.2d 927 (2004). While the writ of error was pending before this court, the plaintiff finished serving both sentences for contempt. Although the parties agree that no practical relief can be afforded from the sentence already served, they disagree as to whether the collateral consequences doctrine applies to provide a basis for jurisdiction. We conclude that a conviction of criminal contempt warrants application of this doctrine.

"When, during the pendency of an appeal, events have occurred that preclude an appellate court from granting any practical relief through its disposition of the merits, a case has become moot." (Internal quotation marks omitted.) State v. Preston, 286 Conn. 367, 374, 944 A.2d 276 (2008). "Where there is no direct practical relief available from the reversal of the judgment, as in this case, the collateral consequences doctrine acts as a surrogate, calling for a determination whether a decision in the case can afford the litigant some practical relief in the future." (Internal quotation marks omitted.) Id., at 382-83, 944 A.2d 276. Under this doctrine, "the court may retain jurisdiction when a litigant shows that there is a reasonable possibility that prejudicial collateral consequences will occur. ... [T]he litigant must establish these consequences by more than mere conjecture, but need not demonstrate that these consequences are more probable than not." (Citation omitted; internal quotation marks omitted.) Id., at 382, 944 A.2d 276.

This court has not determined whether a record of criminal contempt alone gives rise to a reasonable possibility of prejudicial collateral consequences.⁴ The [289 Conn. 256]

Appellate Court has held, however, that the possibility of such consequences do attach. See Monsam v. Dearington, supra, 82 Conn.App. at 455, 844 A.2d 927. That court appeared to equate the consequences attendant to criminal contempt with those attendant to any other criminal conviction: "The writ of error is not moot in this case because collateral consequences from the judgment of contempt itself may arise in the future".

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