State Of Conn. v. Fielding, No. 18184.

• Decision Date: 04 May 2010
• Docket Number: No. 18184.
• Citation: 296 Conn. 26,994 A.2d 96
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticutv.Brian FIELDING.

296 Conn. 26

994 A.2d 96

STATE of Connecticutv.Brian FIELDING.

No. 18184.

Supreme Court of Connecticut.

Argued Feb. 8, 2010.

Decided May 4, 2010.

Timothy J. Sugrue, assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and David R. Shannon, senior assistant state's attorney, for the appellant (state).

Hugh F. Keefe, with whom, on the brief, was Nancy Fitzpatrick Myers, New Haven, for the appellee (defendant).

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

KATZ, J.

The state appeals, upon our grant of certification, from the judgment of the Appellate Court dismissing its appeal from the trial court's order compelling it to provide the defendant, Brian Fielding, with copies of material that had been seized from his home in connection with his arrest for possession of child pornography. The sole issue in this certified appeal is whether the Appellate Court properly determined that the trial court's order was not a final judgment and, therefore, that it lacked jurisdiction over the appeal. We conclude that the Appellate Court properly dismissed the appeal, and, accordingly, we affirm the judgment of that court.

The record reveals the following undisputed facts and procedural history. In September, 2006, the state charged the defendant by information with possession of child pornography in the third degree in violation of General Statutes § 53a-196f.¹ Thereafter, in February, 2007, the defendant filed a motion requesting that the state be ordered to provide him with copies of all of the alleged pornographic materials seized from his home that formed the basis of his prosecution. The defendant claimed that such disclosure was necessary to allow his forensic experts to evaluate the evidence and to prepare a defense. At the hearing on the motion in April, 2007, the trial court questioned the defendant about whether such disclosure was prohibited by statute. The defendant acknowledged that there is a federal law that bars the disclosure of copies of child pornography to a federal criminal defendant; see 18 U.S.C. § 3509(m); ² but argued that this law did not apply in a state criminal prosecution. Additionally, although he recognized that legislation patterned after the federal law had been proposed and was pending in the General Assembly; see House Bill No. 7269, 2007 Sess. (H.B.7269); the defendant argued that this bill, even if it were to be enacted into law, would not take effect until October, 2007. In response, the state argued that the court should view the federal law as persuasive authority and expressed the belief that the distribution of copies of child pornography to the defendant unnecessarily risked repeating the victimization of the the children depicted in the alleged pornographic material.

The court took the matter under advisement and, thereafter, by order dated June 18, 2007, granted, with certain restrictions, the defendant's motion for disclosure, ordering the state to provide the defendant with copies of the alleged child pornography within forty-five days of its order (June 18 order). Those restrictions included that defense counsel be responsible for keeping and safeguarding the duplicated material, that the material be “secured and inaccessible to anyone besides defense counsel,” and that defense counsel “may allow experts to review said materials only in accordance with this order.” ³

On or about June 22, 2007, the state moved for reconsideration of the June 18 order on the basis of the fact that H.B. 7269 had passed in the House of Representatives and the Senate on June 5 and 6, 2007, respectively, and currently was awaiting the governor's signature. The court held a hearing on the motion for reconsideration on July 23, 2007, by which time, as the state noted to the court, H.B. 7269 had been signed into law by the governor as part of No. 07-246 of the 2007 Public Acts ⁴ (P.A. 07-246), and was scheduled to take effect on October 1, 2007. See General Statutes § 2-32 (“[a]ll public acts, except when otherwise therein specified, shall take effect on the first day of October following the session of the General Assembly at which they are passed”). Public Act 07-246, which ultimately was codified at General Statutes § 54-86m, provided in relevant part that “any property or material that constitutes child pornography shall remain in the care, custody and control of the state” and that “a court shall deny any request by the defendant to copy, photograph, duplicate or otherwise reproduce any property or material that constitutes child pornography so long as the attorney for the state makes the property or material reasonably available to the defendant....” See footnote 4 of this opinion.

On the basis of the passage of P.A. 07-246, the state argued that “it would be illegal” for it to duplicate the alleged child pornography and provide it to defense counsel. The state reiterated its argument that the distribution of duplicated pornographic material to the defendant “indirectly victimiz[ed] the victims again” and was inconsistent with the state's policy not to “turn over contraband to defendants ... or their experts....” The state further argued that, despite the best of intentions and motives of all concerned, the duplication and disclosure of the material posed a risk of unauthorized dissemination. The state urged that this risk could be avoided, while at the same time adequately securing the defendant's right to prepare a defense, by allowing the defendant and his expert full access to the material as it remained in the care, custody and control of the state. The defendant responded that compliance with the order was not unlawful because: (1) the June 18 order had been issued prior to the October 1, 2007 effective date of P.A. 07-246; and (2) the forty-five day deadline set by the court for compliance with its order August 2, 2007, also would predate the effective date of the public act.

At the conclusion of the hearing, the court orally denied the state's motion for reconsideration, ruling that its June 18 order adequately protected against the risk of unauthorized redistribution of the duplicated material. Regarding P.A. 07-246, the court essentially agreed with the defendant's view that it was not applicable because this provision had been pending, but not enacted, at the time that the disclosure order was issued, and because the court's order called for disclosure to occur before the public act's effective date of October 1, 2007.

On July 30, 2007, the state sought permission to appeal from the trial court's June 18 order, as well as from the court's denial of its motion to reconsider that order in light of the passage of the public act. At a hearing on the matter, the defendant asserted that he had no objection to the state's motion, and the court thereafter granted the state permission to appeal.

On June 4, 2008, the Appellate Court summoned the parties to appear before a motions calendar session of the court to explain why the state's appeal should not be dismissed for lack of a final judgment. Over the state's objection, the Appellate Court dismissed the state's appeal. Thereafter, this court granted the state's petition for certification, limited to the following issue: “Did the Appellate Court properly dismiss the appeal of the [state] for lack of a final judgment?” State v. Fielding, 288 Conn. 916, 954 A.2d 186 (2008).

On appeal, the state claims that the Appellate Court improperly dismissed its appeal because the June 18 order is an appealable interlocutory order under State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In the alternative, the state asserts that its appeal should be addressed pursuant to General Statutes § 52-265a ⁵ because this case involves a matter of substantial public interest. The defendant agrees that applying the trial court's order would destroy the state's claimed right under § 54-56m to maintain exclusive control over the materials. The defendant also approves the exercise of this court's jurisdiction pursuant to § 52-265a. ⁶ We conclude that the discovery order in the present case is not a final judgment and, therefore, is not appealable under General Statutes § 52-263. Because we also are not persuaded that we should treat the state's petition as a public interest appeal,⁷ we affirm the judgment of dismissal.

“We begin by noting that the parties' agreement on the existence of a final judgment does not confer jurisdiction on this court. The lack of a final judgment implicates the subject matter jurisdiction of an appellate court to hear an appeal.... The appellate courts have a duty to dismiss, even on [their] own initiative, any appeal that [they lack] jurisdiction to hear.... Neither the parties nor the trial court ... can confer jurisdiction upon [an appellate] court.... The right of appeal is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met.” (Internal quotation marks omitted.) Brown & Brown, Inc. v. Blumenthal, 288 Conn. 646, 654, 954 A.2d 816 (2008). “It is equally axiomatic that, except insofar as the legislature has specifically provided for an interlocutory appeal or other form of interlocutory appellate review ... appellate jurisdiction is limited to final judgments of the trial court. General Statutes § 52-263....” ⁸ (Citations omitted; internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, 263 Conn. 39, 45, 818 A.2d 14 (2003).

“In a criminal proceeding, there is no final judgment until the imposition of a sentence. State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201(1987); State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980).... The general rule is ... that interlocutory orders in criminal cases are not immediately appealable. United States v. MacDonald, 435 U.S. 850, 857, 98 S.Ct. 1547, 56 L.Ed.2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278...