State v. Curcio

• Decision Date: 09 August 1983
• Citation: 463 A.2d 566,191 Conn. 27
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Gus CURCIO.

Page 566

463 A.2d 566

191 Conn. 27

STATE of Connecticut v. Gus CURCIO.

Supreme Court of Connecticut.

Argued June 2, 1983.

Decided Aug. 9, 1983.

Jacob D. Zeldes, Fairfield, with whom were Thomas E. Minogue Jr., Bridgeport, and, on the brief, Alfred J. Jennings, Jr., and Miriam Berkman, Milford, for appellant (defendant).

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

Before SPEZIALE, C.J., and PARSKEY, SHEA, GRILLO and SPADA, JJ.

SPEZIALE, Chief Justice.

The defendant has appealed from the trial court's denial of his motion to quash an order for a second grand jury. Because we find that the denial is not a final judgment, the appeal is dismissed. ¹

On February 4, 1982, the Superior Court for the judicial district of Fairfield, upon application by the state's attorney's office for that district, called and impaneled a grand jury pursuant to § 54-45 ² of the General Statutes. The state's attorney then presented a proposed true bill to the grand jury alleging that on September 19, 1981, in Bridgeport, the defendant, Gus Curcio, intentionally aided another in committing murder, in violation of General Statutes § 53a-8 and § 53a-54a(a). After hearing testimony and considering evidence for seven days, the grand jury reported to the court on February 16, 1982, that it found no true bill. The court then thanked the grand jurors for their attention and dismissed them. The assistant state's attorney immediately informed the court of his intention to seek a second grand jury for the purpose of hearing the charges against the defendant.

On June 7, 1982, the state's attorney applied to the Superior Court for an order "summoning, impaneling and swearing" a second grand jury. The court summoned the grand jury for June 28, 1982. On June 18, 1982, the defendant filed a motion to quash the order for the second grand jury claiming that the original grand jury's return of no true bill barred further prosecution. He claimed, inter alia, that being subjected to a second grand jury investigation would violate: (1) his right to due process and to equal protection under the fourteenth amendment to the United States constitution and under article first, § 8 of the Connecticut constitution; and (2) his right not to be held to answer for a capital offense unless indicted by a grand jury. ³ The trial court denied the defendant's motion to quash, and the defendant has appealed.

At oral argument on this appeal, we raised the question whether the denial of the defendant's motion to quash the order for a second grand jury was a final judgment and we ordered both parties to brief the issue. Because we now decide that the trial court's order is not an appealable final judgment, we do not reach the merits of the defendant's claim and dismiss the appeal sua sponte.

At oral argument and in their briefs both parties argued that the trial court's order is appealable. Agreement by the parties, however, cannot confer appellate jurisdiction on this court. The right of appeal is purely statutory. It is accorded only if the conditions fixed by statute and the rules of court for taking and prosecuting the appeal are met. State v. Audet, 170 Conn. 337, 342, 365 A.2d 1082 (1976); Kennedy v. Walker, 135 Conn. 262, 266, 63 A.2d 589, aff'd, 337 U.S. 901, 69 S.Ct. 1046, 93 L.Ed. 1715 (1948). The statutory right to appeal is limited to appeals by aggrieved parties from final judgments. General Statutes §§ 52-263, 51-197a; see Practice Book § 3000. Because our jurisdiction over appeals, both criminal and civil, 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. See State v. Seravalli, 189 Conn. 201, 455 A.2d 852 (1983); State v. Spendolini, 189 Conn. 92, 454 A.2d 720 (1983); State v. Powell, 186 Conn. 547, 550, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, --- U.S. ----, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982); E.J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 624, 356 A.2d 893 (1975); Prevedini v. Mobil Oil Corporation, 164 Conn. 287, 291, 320 A.2d 797 (1973).

Adherence to the final judgment rule is not dictated by legislative fiat alone. It has long been this court's policy to discourage "piecemeal" appeals, particularly in criminal proceedings. State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938); see State v. Seravalli, supra; State v. Powell, supra. As the United States Supreme Court has recognized: " '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, 657-658, 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), quoted in State v. Seravalli, supra, 189 Conn. 204-205, 455 A.2d 852; State v. Powell, supra, 186 Conn. 551, 442 A.2d 939.

"The appealable final judgment in a criminal case is ordinarily the imposition of sentence." State v. Seravalli, supra, 189 Conn. 205, 455 A.2d 852; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). 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) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them. State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). The trial court's denial of the defendant's motion to quash the ordering of the second grand jury, measured against these tests, is not a final judgment within the meaning of §§ 52-263 and 51-197a.

To satisfy the first test for finality, one would have to show that the order impaneling the grand jury involves a proceeding separate and distinct from the guilt determining process that follows the state's filing of charges. The history of the grand jury in Connecticut and its statutory authorization both indicate otherwise.

General Statutes § 54-45, ⁴ since repealed, was in effect at the time of these proceedings. It authorized the Superior Court to summon and impanel eighteen electors of the judicial district to sit as a grand jury. The General Statutes made no provision for the impaneling of grand juries to hear proposed bills of indictment by any means other than Superior Court order. This comported with the common law precept that the grand jury, although not operating as a judicial tribunal, has no existence independent of the court that establishes it. 4 Wharton, Criminal Law & Procedure (12th Ed.) § 1685; 38 Am.Jur.2d, Grand Jury § 2. "A grand jury is clothed with great independence in many areas, but it remains an appendage of the court ...." Brown v. United States, 359 U.S. 41, 49, 79 S.Ct. 539, 546, 3 L.Ed.2d 609 (1959), reh. denied, 359 U.S. 976, 79 S.Ct. 873, 3 L.Ed.2d 843, overruled on other grounds, Harris v. United States, 382 U.S. 162, 86 S.Ct. 352, 15 L.Ed.2d 240 (1965).

Furthermore, under the constitutional scheme that existed and was applied here, the grand jury played an integral role in the overall adjudicative process. It could be summoned and impaneled only after the state's attorney had laid before the Superior Court a proposed bill of indictment charging an identified person with a specific offense. State v. Stepney, 181 Conn. 268, 272-73, 435 A.2d 701 (1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 856, 66 L.Ed.2d 799 (1981). The grand jury then would hear testimony concerning the charges. If they found probable cause to believe that the accused had committed the offenses charged, the grand jury then would return a true bill, indicting and formally accusing the defendant. See Cobbs v. Robinson, 528 F.2d 1331, 1338 (2d Cir.1976) (construing Connecticut grand jury proceedings); State v. Stepney, supra. "The basic purpose of our constitutional requirement of indictment by a grand jury is to interpose, between the state and one accused of a crime for which the punishment may be death or life imprisonment, a body of eighteen disinterested persons ... to determine whether the state has shown probable cause for subjecting the accused to the expense, embarrassment and risk of such a trial." State v. Menillo, 159 Conn. 264, 275, 268 A.2d 667 (1970). "Their proceedings 'are both "ex parte" and interlocutory; moreover, the grand jury only seeks for a "probable cause." ' " State v. Stallings, 154 Conn. 272, 280, 224 A.2d 718 (1966). The grand jury proceedings interposed between the state's attorney's accusation and the defendant's trial were a constitutionally mandated step in the process of bringing the accused to final adjudication. By no means were they separate and distinct from it.

The second test for finality, where the order on appeal so concludes the rights of the parties that further proceedings cannot affect them, focuses not on the proceeding involved, but on the potential harm to the appellant's rights. A presentence order will be deemed final for purposes of appeal "only if it involves a claimed right 'the legal and practical value of which would be destroyed if it were not vindicated before trial.' " State v. Powell, 186 Conn. 547, 553, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, --- U.S. ----, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982), quoting United States v. MacDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978). Appealable presentence orders include: the denial of a defendant's motion to dismiss nolled charges on speedy trial grounds; State v. Lloyd, 185 Conn. ---, ---, --- - --- (43 CLJ 5, pp. 10, 12-13) 440 A.2d 867 (1981); an order denying youthful offender status; State v. Bell, 179 Conn. 98, 425...