State v. Figueroa

• Decision Date: 04 May 1990
• Docket Number: No. 8124,8124
• Citation: 576 A.2d 553,22 Conn.App. 73
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Orlando FIGUEROA.

Page 553

576 A.2d 553

22 Conn.App. 73

STATE of Connecticut v. Orlando FIGUEROA.

No. 8124.

Appellate Court of Connecticut.

Argued Feb. 14, 1990.

Decided May 4, 1990.

Ronald T. Murphy, Hartford, for appellant (named defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom were John M. Massemeno, Asst. State's Atty., and, on the brief, John M. Bailey, State's Atty., for appellee (state).

Ralph G. Elliot, Hartford, for appellees (The Hartford Courant, et al.).

Before DUPONT, C.J., and BORDEN, SPALLONE, DALY, EDWARD Y. O'CONNELL, NORCOTT, FOTI and LAVERY, JJ.

EDWARD Y. O'CONNELL, Judge.

The defendant appeals from the trial court's order to unseal a police report. The matter came to this court in the following context.

On April 4, 1989, the defendant was arrested and charged with the murder of a thirteen year old male. The next day, he was arraigned in Part B of the Superior Court. The court, Kocay, J., relying on a three page police report, found probable cause for his arrest and transferred the case to Part A of the Superior Court. Practice Book § 650; see Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). At the conclusion of the arraignment, the court ordered that the police report be sealed and kept in the state's attorney's office rather than in the clerk's file.

On April 12, 1989, The Hartford Courant and Lynn Tuohy, an employee thereof, moved to intervene and to vacate the sealing order. ¹ On the same date, the state moved to extend the sealing of the report for an additional two weeks. The court, Norko, J., ordered the report taken from the state's attorney's office and placed in the clerk's file. Then, after hearing arguments and receiving briefs, it granted the motion to intervene and vacated the sealing order. The court stayed its order unsealing the report, however, pending this appeal.

The state appealed from the allowance of intervention and the unsealing order, but withdrew its appeal, however, under the impression that the appeal suffered from certain procedural defects. The defendant appealed only from the unsealing order, and that is all that is before this court at this time. ² Before we can reach the merits of this question though, we must first determine whether the defendant may appeal to this court at this stage of the proceedings.

There is no constitutional or common law right to appeal. Chanosky v. City Building Supply Co., 152 Conn. 449, 451, 208 A.2d 337 (1965). The right of appeal is purely statutory; State v. Audet 170 Conn. 337, 341, 365 A.2d 1082 (1976); and appellate tribunals may hear only those appeals over which they have been granted jurisdiction by statute. The principal statutory prerequisite to invoking our jurisdiction is that the ruling from which an appeal is sought must constitute a "final judgment." See General Statutes §§ 51-197a and 52-263. ³ In a criminal case, the imposition of sentence constitutes the appealable final judgment. State v. Seravalli, 189 Conn. 201, 205, 455 A.2d 852, cert. denied, 461 U.S. 920, 103 S.Ct. 2076, 77 L.Ed.2d 291 (1983). We cannot hear appeals from preliminary rulings of the trial court, except in the case of several narrowly defined situations, none of which exists here. ⁴ Piecemeal appeals, particularly in criminal proceedings, are not only outside our jurisdiction, but also contravene the long-standing case law of this state and the United States. See DiBella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657-58, 7 L.Ed.2d 614 (1962); State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938).

Our courts have not been inclined to extend the privilege of an interlocutory appeal in criminal cases because the delays and disruptions attendant on such appeals are contrary to the effective and fair administration of the criminal law. State v. Curcio, 191 Conn. 27, 30-31, 463 A.2d 566 (1983). "The overarching principle involved in prosecution of crime is that justice be swift and sure. If the defendant is guilty then he should be brought to book and punished without delay and if he is innocent then the cloud of accusations should be removed as speedily as circumstances permit." State v. Parker, 194 Conn. 650, 656, 485 A.2d 139 (1984). Consequently, it has been held that the court does not have jurisdiction to hear appeals from certain rulings because they are not final judgments. Among these exceptions are the transfer of a case from the juvenile to the regular criminal docket; In re Juvenile Appeal (85-AB), 195 Conn. 303, 312, 488 A.2d 778 (1985); denial of an application for youthful offender status; State v. Longo, 192 Conn. 85, 90-91, 469 A.2d 1220 (1984); denial of an application for accelerated rehabilitation; State v. Spendolini, 189 Conn. 92, 97, 454 A.2d 720 (1983); denial of a motion to disqualify an attorney; Burger & Burger, Inc. v. Murren, 202 Conn. 660, 669-70, 522 A.2d 812 (1987); and the entry of a nolle prosequi, or denial of a speedy trial claim. State v. Lloyd, 185 Conn. 199, 207, 440 A.2d 867 (1981).

Interlocutory rulings of a trial court may be treated as final judgments for purposes of appeal "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. Curcio, supra, 191 Conn. at 31, 463 A.2d 566. The defendant argues that he has satisfied both prongs of this test. We disagree.

Where "the interlocutory ruling is merely a step along the road to final judgment then it does not satisfy the 'separate and distinct proceeding' requirement of the first prong of Curcio." State v. Parker, supra, 194 Conn. at 653, 485 A.2d 139. To qualify under Curcio, "[i]t must appear that the interlocutory ruling will not impact directly on any aspect of the prosecution." Id. We are not persuaded that the trial court's ruling to unseal this police report can be construed as a separate and distinct proceeding because it was part and parcel of the defendant's prosecution for murder. We decline to hold as a matter of law that a proceeding involving a police report, which was sufficient for the arraigning court to hold the defendant for trial, would not have any impact on the prosecution. Consequently, the defendant has not satisfied the first Curcio prong that the order terminate a separate and distinct proceeding.

The defendant also contends that he has satisfied the second prong of Curcio because the trial court's order so concludes the rights of the parties that further proceedings cannot affect them. To support this assertion he argues that the contents of the police report, when unsealed, will probably cause substantial pretrial publicity, thus permanently damaging his right to a fair trial. We are not persuaded that prevention of pretrial publicity bears such reasonable relation to concluding the rights of the parties that further proceedings could not affect them. Indeed, the prosecution will continue regardless of the release or continued sealing of the police report. The defendant has available to him the usual means of ensuring against prejudicial pretrial publicity (e.g., motion for change of venue or careful voir dire examination of prospective jurors). Furthermore, the defendant erroneously assumes that he has an automatic right to shield himself from pretrial publicity. "[Such] publicity, even if pervasive and concentrated, cannot be regarded as leading automatically in every kind of criminal case to an unfair trial." Nebraska Press Assn. v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (1976).

"In order to satisfy the second prong of the Curcio test the defendant must do more than show that the trial court's decision threatens him with irreparable harm. The defendant must show that [the] decision [of the trial court] threatens to abrogate a right that he or she then holds"; (emphasis in original) State v. Longo, supra, 192 Conn. at 91, 469 A.2d 1220; such as the defendant's right not to be tried twice for the same offense. Id. The defendant has not demonstrated that he has sustained any identifiable harm to his fair trial rights from the trial court's decision, and it is conceivable that he might never suffer any harm. The latter would be the result, for instance, of a failure to go to trial as a consequence of a nolle, a dismissal or a disposition pursuant to a plea agreement. ⁵

The defendant is not without remedy. In the event that he is convicted and is of the opinion that the verdict has been tainted by pretrial publicity, he may challenge the trial court's unsealing of the police report in a timely posttrial appeal.

As an additional reason for claiming satisfaction of the second Curcio test, the defendant argues that unsealing the police report will injure the reputation of the minor victim. It is rudimentary jurisprudence that the party claiming error must be aggrieved by the decision of the trial court. Milford v. Local 1566, 200 Conn. 91, 96, 510 A.2d 177 (1986). The defendant laudably desires to protect the reputation of the person he is alleged to have killed. We are not aware, however, of any case law that gives him the requisite standing to appeal any decision based on injury to his victim's reputation.

We conclude that this court lacks subject matter jurisdiction to hear this appeal because it is not from a final judgment.

The appeal is dismissed.

In this opinion DUPONT, C.J., and BORDEN, SPALLONE, DALY, NORCOTT and FOTI, JJ., concurred.

LAVERY, Judge, dissenting.

I cannot join the majority opinion because I disagree with the majority's refusal to find that the defendant appealed from a final judgment, thus avoiding the necessity of reaching the merits of this important appeal. Therefore, I respectfully dissent.

I

I disagree with the majority's final judgment analysis in two respects. First, I disagree that this case can be considered to present a normal, criminal appeal,...