State v. Asherman

• Decision Date: 18 March 1980
• Citation: 180 Conn. 141,429 A.2d 810
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Steven M. ASHERMAN.

Page 810

429 A.2d 810

180 Conn. 141

STATE of Connecticut v. Steven M. ASHERMAN.

Supreme Court of Connecticut.

Argued Feb. 5, 1980.

Decided March 18, 1980.

Anne C. Dranginis, Asst. State's Atty., in support of the motion.

Maxwell Heiman, Bristol, in opposition.

Before COTTER C. J., and LOISELLE, BOGDANSKI, PETERS and HEALEY, JJ.

COTTER, Chief Justice.

The state moves to dismiss the defendant's appeal from the denial of his motion for a new trial. The following facts are pertinent to a consideration of this motion.

The defendant was indicted for the crime of murder in violation of Connecticut General Statutes § 53a-54a on October 31, 1978. After a trial to a jury, a verdict of guilty of manslaughter in the first degree was returned on August 13, 1979. The trial court granted the defendant's motion of September 6, 1979, for permission to file a motion for a new trial and a motion in arrest of judgment. ¹

The motions for a new trial and in arrest of judgment related to allegations that evidence had come to light which indicated the jury had acted so improperly as to violate the defendant's right to a fair trial. The trial court denied those motions after a hearing on November 23, 1979. Before the defendant was sentenced on his conviction he filed an appeal from the denial of those motions. ² The state's motion to dismiss this appeal is based on the premise that the Supreme Court lacks jurisdiction to entertain the appeal because the decision appealed from is not a final judgment.

The right of the defendant to appeal is governed by General Statutes § 54-95 and by Practice Book, 1978, § 3000 which provide, inter alia, that an appeal lies from a final judgment. We have recently repeated this court's oft-iterated criteria in determining whether a decision is final for purposes of appeal: "If the order or action terminates a separate and distinct proceeding, or if the rights of the parties are concluded so that further proceedings cannot affect them ...." State v. Bell, 179 Conn. 98, 425 A.2d 574. See also E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 627, 356 A.2d 893; State v. Roberson, 165 Conn. 73, 82, 327 A.2d 556; State v. Fahey, 146 Conn. 55, 57, 147 A.2d 476. In an effort to conform his case to these criteria, the defendant claims that the denial of his motion is a final judgment because: (1) his motion for a new trial is the equivalent of a petition for a new trial pursuant to General Statutes § 52-270 and thus the trial court's denial of the motion was the termination of a separate and distinct proceeding; and (2) his rights have been so concluded that further proceedings cannot affect them.

It is clear that a judgment entered upon a petition for a new trial is appealable. See Aillon v. State, 168 Conn. 541, 542, 363 A.2d 49; Black v. Universal C.I.T. Credit Corporation, 150 Conn. 188, 189, 187 A.2d 243; State v. Kemp, 124 Conn. 639, 644, 1 A.2d 761. A motion for a new trial is interlocutory and an appeal lies only from the judgment to which the motion is addressed. Hoberman v. Lake of Isles, Inc., 138 Conn. 573, 575-77, 87 A.2d 137; State v. Kemp, supra. Although the defendant obtained certification for review from the trial court pursuant to General Statutes § 54-95(b), this tack does not obscure the fact that many of the essentials necessary to support a petition for a new trial are absent. The defendant filed his motion within the technical confines of the docketed criminal case. No separate civil action was brought. ³ Compare Aillon v. State supra; Reilly v. State, 32 Conn.Sup. 349, 355 A.2d 324. See generally Hoberman v. Lake of Isles, Inc., supra, 138 Conn. 575-77, 87 A.2d 137; State v. Kemp, supra, 124 Conn. 644-45, 1 A.2d 761.

The specific distinctions between a petition and a motion for a new trial indicate why judgments entered upon the former are appealable. The petition is instituted by a writ and complaint served on the adverse party; although such an action is collateral to the action in which a new trial is sought, it is by its nature a distinct proceeding. The judgment on the petition terminates the suit which renders it final. On the contrary, a motion for a new trial is filed in a case then in progress or pending and is merely a gradation in that case leading to a final judgment. Hoberman v. Lake of Isles, Inc., supra, 138 Conn. 575-76, 87 A.2d 137.

Most importantly, errors which are claimed to have been committed in rendering the judgment on a petition for a new trial are not reviewable on an appeal from the judgment rendered in the action in which a new trial is sought. See Palverari v. Finta, 129 Conn. 38, 41, 26 A.2d 229; Husted v. Mead, 58 Conn. 55, 68, 19 A. 233. On the other hand, errors which are claimed in relation to a motion for a new trial may be assigned on the appeal from the judgment rendered in the case in which the motion is made. Hoberman v. Lake of Isles, Inc., supra, 138 Conn. 577, 87 A.2d 137. In the instant case, the assignment of error would have to do with alleged jury misconduct and the defendant does not claim that he could not raise this particular claim of error on appeal. The alleged jury misconduct at this point is just one more event during the trial upon which the defendant may argue that a claim of error should be based after judgment is rendered. Thus, the defendant's claim that the denial of his motion for a new trial falls within the category of a separate and distinct proceeding; compare Dewart v. Northeastern Gas Transmission Co., 139 Conn. 512, 514, 95 A.2d 381, and the cases cited therein; so as to constitute a final judgment is not persuasive.

The defendant's claim that further proceedings cannot affect the rights he alleges are at issue, namely, the right to a fair trial which includes in the present circumstances the defendant's rights to assistance of counsel, to confront and cross-examine witnesses, and to trial by an impartial jury, is also not compelling. There are "many rulings in the course of an action by which rights are determined which are interlocutory in their nature and reviewable only upon an appeal taken from a judgment later rendered." State v. Kemp, supra, 124 Conn. 643, 1 A.2d 761; France v. Munson, 123 Conn. 102, 107, 192 A. 706. Thus, the word "rights" in the oft-iterated test for finality of judgments "if the rights of the parties are concluded so that further proceedings cannot affect them" is not used in an...