State v. Bemer

• Court: Connecticut Supreme Court
• Writing for the Court: PALMER, J.
• Citation: State v. Bemer, 339 Conn. 528, 262 A.3d 1 (Conn. 2021)
• Decision Date: 14 July 2021
• Docket Number: SC 20195
• Parties: STATE of Connecticut v. Bruce John BEMER

339 Conn. 528

262 A.3d 1

STATE of Connecticut

v.Bruce John BEMER

SC 20195

Supreme Court of Connecticut.

Argued October 21, 2019

Officially released July 14, 2021^*

Wesley W. Horton, with whom were Brendon P. Levesque, Hartford, and, on the brief, Ryan Barry, and Anthony Spinella, Manchester, for the appellant (defendant).

Michele C. Lukban, senior assistant state's attorney, with whom, on the brief, were Stephen J. Sedensky III, state's attorney, and Sharmese L. Hodge, assistant state's attorney, for the appellee (state).

James J. Healy, Hartford, Gerald S. Sack, West Hartford, Joel T. Faxon, New Haven, and Kevin C. Ferry, New Britain, filed a brief for the alleged victims as amici curiae.

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Vertefeuille, Js.^**

PALMER, J.

After the defendant, Bruce John Bemer, was charged with patronizing a prostitute who was the victim of human trafficking in violation of General Statutes (Supp. 2014) § 53a-83 (c) (2) (A)¹ and conspiracy to commit trafficking in persons in violation of General Statutes (Rev. to 2011) §§ 53a-192a and 53a-48, ² the state filed a motion seeking a court order requiring the defendant to submit both to an examination for sexually transmitted diseases pursuant to General Statutes § 54-102a (a) and to testing for human immunodeficiency virus (HIV) pursuant to § 54-102a (b).³

Thereafter, certain victims of the defendant's allegedly criminal misconduct filed similar motions. The trial court granted the various motions and ordered the defendant to submit to such an examination and testing. The defendant then filed this appeal,⁴ claiming that the trial court had abused its discretion in ordering testing under § 54-102a (b) because, the defendant maintains, that statutory subsection incorporates the standard set forth in General Statutes § 19a-582 (d) (8) ; see footnote 12 of this opinion; which requires the court to find that there is "a clear and imminent danger to the public health or the health of a person and that the person has demonstrated a compelling need for the HIV-related test result that cannot be accommodated by other means" before it may order HIV testing, and the state had presented no evidence in satisfaction of that standard.⁵ The defendant further contends that, to the extent that subsections (a) and (b) of § 54-102a purport to authorize the trial court to issue orders thereunder without first making a finding of such compelling justification, they violate his rights under the fourth amendment to the United States constitution⁶ and article first, § 7, of the Connecticut constitution.⁷ After this appeal was filed, we directed the parties to brief, inter alia, the issue of whether the order for an examination and testing was an appealable final judgment.⁸

We conclude, preliminarily, that the trial court's order is an appealable final judgment. We further conclude that, under article first, § 7, of the Connecticut constitution, the trial court must make a finding that either an examination pursuant to § 54-102a (a) or testing pursuant to § 54-102a (b), or both, would provide useful, practical information to a victim that cannot reasonably be obtained in another manner before it may order such examination or testing, or both. Accordingly, we reverse the trial court's order and remand the case for a new hearing so that the trial court can apply the proper standard.

The record reveals the following undisputed facts and procedural history. On March 28, 2017, the defendant was arrested pursuant to a warrant and charged with patronizing a prostitute who was the victim of human trafficking and conspiracy to commit trafficking in persons. The arrest warrant application indicated that, on August 5, 2016, Danbury police officers interviewed the defendant in connection with their investigation of a prostitution ring involving the sexual trafficking of mentally disabled young men. The defendant told the police that, over the course of the previous twenty to twenty-five years, an individual by the name of Robert King had been arranging for young males to engage in sexual activities with him in exchange for money. The defendant stated that, to the best of his recollection, King had made arrangements for him to engage in sexual activities with eight to ten young men, most of whom the defendant had sex with multiple times. The arrest warrant application also indicated that one of the victims told the police that the defendant had performed fellatio on him.⁹ The defendant told the police that the last occasion on which he had had sexual relations with a young man brought to him by King was approximately four months before the date of the interview.

On October 18, 2017, the state filed a motion seeking an examination of the defendant for sexually transmitted diseases under subsection (a) of § 54-102a and HIV testing of the defendant under subsection (b) of § 54-102a. The defendant opposed the motion on the ground that granting it without a prior showing of probable cause to believe that such an examination and testing would promote the health interests of the victims would serve no legitimate medical purpose and would therefore violate the defendant's rights under the fourth amendment and article first, § 7. Thereafter, victims represented by Attorney Joel T. Faxon, victims represented by Attorney Kevin C. Ferry, and victims represented by Attorney Gerald S. Sack filed three separate motions seeking the same relief. The trial court conducted a hearing on the motions, at which the assistant state's attorney and defense counsel appeared, and Faxon also appeared on behalf of certain victims. In addition, Attorneys Jonathan A. Cantor and Monique Foley appeared on behalf of the other victims who had not filed motions under § 54-102a. Although the parties adduced no evidence at the hearing, Faxon referred to the contents of the arrest warrant during argument. In addition to a constitutional claim, defense counsel argued at the hearing that § 54-102a (b) and § 19a-582 (d) (8) must be read together to require the state and the victims to establish that the defendant posed a clear and imminent danger to the public health before the court could order HIV testing. Thereafter, the trial court summarily granted the motions.

This appeal followed. The defendant renews his claims that, under the statutory scheme, HIV testing authorized by § 54-102a (b) is conditioned on the showing mandated by § 19a-582 (d) (8), and, in any event, article first, § 7, of the state constitution requires proof of a compelling need for examination under § 54-102a (a) and testing under § 54-102a (b). We address each of these claims in turn.

I

Before doing so, however, we address two threshold issues that implicate this court's jurisdiction to entertain the present appeal: first, whether the trial court's order constituted an appealable final judgment and, second, what effect, if any, does the defendant's conviction have on this appeal.¹⁰ Both the state and the defendant contend that the trial court's order was immediately appealable and that the defendant's conviction has no bearing on this appeal. We agree with the parties.

"[B]ecause our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim .... It is well established that [t]he principal statutory prerequisite to invoking our jurisdiction is that the ruling from which an appeal is sought must constitute a final judgment." (Internal quotation marks omitted.) State v. Anderson , 318 Conn. 680, 698 n.6, 122 A.3d 254 (2015). "The appealable final judgment in a criminal case is ordinarily the imposition of sentence. ... In both criminal and civil cases, however, we have determined certain interlocutory orders and rulings of the Superior Court to be final judgments for purposes of appeal. An otherwise interlocutory order is appealable in two circumstances: (1) [when] the order or action terminates a separate and distinct proceeding, or (2) [when] the order or action so concludes the rights of the parties that further proceedings cannot affect them." (Citations omitted; internal quotation marks omitted.) State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983).

"The separate and distinct requirement of Curcio demands that the proceeding [that] spawned the appeal be independent of the main action. ... This means that the separate and distinct proceeding, though related to the central cause, must be severable therefrom. The question to be asked is whether the main action could proceed independent of the ancillary proceeding." (Citations omitted; internal quotation marks omitted.) State v. Parker , 194 Conn. 650, 654, 485 A.2d 139 (1984).

It is clear, as both parties recognize, that the order at issue in the present case terminated a separate and distinct proceeding under Curcio ’s first prong because that order involves a discrete matter entirely distinct from and independent of the adjudication of the defendant's guilt. As a consequence, the proceedings concerning the propriety of that order were wholly severable from the proceedings pertaining to the resolution of the defendant's criminal case, which could and did advance separate and apart from this appeal. Cf. State v. Grotton , 180 Conn. 290, 294–95, 429 A.2d 871 (1980) (questions involving fourth amendment violations must await review until after criminal trial and conviction when there is "a functional link between the consequences of an illegal search and seizure and a later conviction in order to make any putative constitutional error harmful and hence to require reversal"); id. at 295, 429 A.2d 871 ("[o]rders granting or denying suppression [of illegally seized evidence] in the wake of ... [suppression] proceedings are truly interlocutory, for the criminal trial is then fairly in train" (internal quotation marks omitted)). Indeed, ...