State v. Damato-Kushel

• Decision Date: 05 December 2017
• Docket Number: SC 19872
• Parties: STATE of Connecticut v. Kyle DAMATO-KUSHEL
• Court: Connecticut Supreme Court

327 Conn. 173

173 A.3d 357

STATE of Connecticut

v.Kyle DAMATO-KUSHEL

SC 19872

Supreme Court of Connecticut.

Argued May 2, 2017

Officially released December 5, 2017

James G. Clark, for the plaintiff in error.

Richard Emanuel, for the defendant in error (Superior Court, judicial district of Fairfield).

Richard T. Meehan, Jr., for the defendant in error (Kyle Damato-Kushel).

Todd D. Fernow, Timothy H. Everett, James O. Ruane and Denis J. O'Malley, certified legal intern, filed a brief for the Connecticut Criminal Defense Lawyers Association as amicus curiae.

Rogers, C.J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.^*

PALMER, J.

This case is before us on a writ of error. The plaintiff in error¹ claims that the trial court improperly precluded him, either personally or through his attorney, from attending plea negotiations and other discussions involving the court, the state's attorney and defense counsel during in-chambers, pretrial disposition conferences in the criminal prosecution of Kyle Damato-Kushel, which is now pending in the judicial district of Fairfield. In that criminal case, Damato-Kushel is charged with various offenses arising out of her alleged sexual misconduct involving the plaintiff in error commencing when Damato-Kushel was a teacher's aide in the school system of the town of Stratford and when the plaintiff in error was a fourteen year old student attending a school in that town. The plaintiff in error claims that the trial court's ruling barring his attendance at the pretrial disposition conferences violated his right as a victim "to attend the trial and all other court proceedings the accused has the right to attend" under article first, § 8, of the Connecticut constitution, as amended by articles seventeen and twenty-nine of the amendments (Conn. Const., amend. XXIX [b] [5] ).² The defendants in error, Damato-Kushel and the Superior Court, judicial district of Fairfield, maintain that the trial court correctly determined that such conferences, when they are conducted in chambers and off the record,³ do not constitute "court proceedings the accused has the right to attend" within the meaning of amendment XXIX (b) (5) and, therefore, that the court properly precluded the plaintiff in error from attending them. We agree with the defendants in error and, accordingly, dismiss the writ of error.

The following facts and procedural history are undisputed. On the basis of allegations lodged by the plaintiff in error, Damato-Kushel was arrested and charged with sexual assault in the second degree, risk of injury to a child, sexual assault in the fourth degree, and tampering with a witness. Shortly thereafter, Attorney James Clark of the Victim Rights Center of Connecticut, Inc., filed an appearance in the criminal case on behalf of the plaintiff in error.

At Damato-Kushel's arraignment, her counsel noted that Clark had filed an appearance in the case and advised the court that he objected to Clark's presence at any pretrial disposition conferences held in chambers. The court sustained the objection, explaining that amendment XXIX (b) (5) allows a victim to attend only those court proceedings that the defendant has a right to attend, and concluding that, because a defendant has no right to attend in-chambers, "judicial [pretrial]" conferences—generally, only his or her attorney attends such conferences—a victim also has no right to attend those conferences.

Thereafter, the plaintiff in error filed a motion for reconsideration, claiming that, contrary to the determination of the trial court, a victim does have a right to attend pretrial disposition conferences because, under Practice Book § 39-13,⁴ the defendant is required to appear at such conferences. In the alternative, he maintained that, because counsel for a defendant attends a disposition conference solely as a representative of the defendant, the presence of such counsel at the conference is legally indistinguishable from the presence of the defendant, and, therefore, the fact that only counsel attends the conference is not a basis for denying the plaintiff in error the right to do so. Finally, the plaintiff in error argued that his exclusion from pretrial disposition conferences violated his right under amendment XXIX (b) (1) "to be treated with fairness and respect throughout the criminal justice process" because it would pre-vent him from responding to inaccurate statements made during those conferences. In response, Damato-Kushel argued that, contrary to the contentions of the plaintiff in error, a defendant has no right to attend in-chambers discussions between the presiding judge and the parties' attorneys and that permitting victims' attorneys to be present during such discussions would have an adverse chilling effect on pretrial plea negotiations.

The trial court subsequently granted the plaintiff in error's motion for reconsideration but denied the relief requested therein. In so ruling, the court acknowledged that a victim's right to attend court proceedings is "in parity with that of the defendant" but observed that Practice Book § 44-7 lists only five instances in which a defendant has the right to be present, none of which involves in-chambers, pretrial conferences.⁵ In light of the nature of the proceedings enumerated in § 44-7, the court concluded that the term "court proceedings" under amendment XXIX (b) (5) was most reasonably interpreted to mean "proceedings on the record in open court." Although recognizing both that Practice Book § 39-13 requires that a defendant "appear at the time set for the disposition conference" and that the judge participating in that conference often takes an active role in the plea negotiations, the trial court disagreed that that provision also granted the defendant the right to be present at an off-the-record, in-chambers conference. The court also agreed with Damato-Kushel that the presence of the victim or his representative would undermine the ability of the parties to discuss the case openly and frankly, and observed that, because the victim's rights amendment obligates the state to keep the victim informed about the progress of the case and any potential disposition that may be the product of plea negotiations, excluding the victim from in-chambers conferences would not impair the victim's ability to express his views on any potential plea agreement resulting from those discussions.

Thereafter, the plaintiff in error brought this writ of error against the defendants in error, claiming that the trial court's ruling barring him from all future, in-chambers, pretrial disposition conferences violated his rights under amendment XXIX (b) (5). Damato-Kushel subsequently filed a motion to dismiss the writ as untimely and improperly filed, which this court denied. We then transferred the writ of error to the Appellate Court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1, and that court ordered the parties to address, in addition to their other claims, "whether the trial court's interlocutory order precluding the victim from attending pretrial, in-chambers conferences concerning plea negotiations is a final judgment." We subsequently transferred the writ back to this court, also pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

In this court, the plaintiff in error renews his contention in the trial court that in-chambers, pretrial disposition conferences are court proceedings that the accused—and thus the victim—have a right to attend under amendment XXIX (b) (5). Before turning to the merits of that claim, however, we first must address the claims of the defendants in error that this court lacks subject matter jurisdiction over the writ of error because (1) the plaintiff in error was not aggrieved by the trial court's ruling and, therefore, does not have standing to bring a writ of error, and (2) the trial court's interlocutory ruling was not an appealable final judgment under the test established in State v. Curcio , 191 Conn. 27, 31, 463 A.2d 566 (1983), for determining whether a ruling constitutes such a judgment. See, e.g., State v. Skipwith , 326 Conn. 512, 518–25, 165 A.3d 1211 (2017) (this court addresses matters concerning its appellate jurisdiction, such as aggrievement, prior to considering merits of writ of error); see also id., at 525, 165 A.3d 1211 n.17 (leaving for another day question of whether victim can file interlocutory writ of error in cases in which there is alleged violation of victim's rights amendment). We address each of these contentions in turn.

I

Our rules of practice provide in relevant part that "[w]rits of error for errors in matters of law only may be brought from a final judgment of the superior court to the supreme court following ... a decision binding on an aggrieved nonparty ...." Practice Book § 72-1 (a) (1). The defendants in error assert that the plaintiff in error is not aggrieved by the trial court's ruling pre-venting his attendance at pretrial disposition conferences because the trial court never determined, "even preliminarily," that the plaintiff in error was, in fact, a " 'victim' " for purposes of the victim's rights amendment,⁶ and, therefore, the plaintiff in error never had any constitutional rights that might be " 'injuriously affected' " by the actions of the trial court. In re Jonathan S. , 260 Conn. 494, 503, 798 A.2d 963 (2002) ; see, e.g., id. ("the party claiming aggrievement must successfully demonstrate ... that its asserted interest has been specially and injuriously affected in a way that is cognizable by law" [internal quotation marks omitted] ). We disagree with this contention.

As the plaintiff in error observes, the issuance of an arrest warrant requires a finding of probable cause that a crime was committed by a particular defendant. See Practice Book § 36-1 (arrest warrant may be issued "if the judicial authority determines that the affidavit accompanying the application shows...