State v. McCahill
| Citation | 811 A.2d 667,261 Conn. 492 |
| Decision Date | 20 August 2002 |
| Docket Number | No. 16574.,No. HHB CR99-0005116-T.,HHB CR99-0005116-T.,16574. |
| Court | Supreme Court of Connecticut |
| Parties | STATE of Connecticut v. JAMES A. McCAHILL. Jennifer F. v. James A. McCahill et al. |
Daniel J. Krisch, with whom were James F. Papillo, victim advocate, and Daniel T. Butler, for the plaintiff in error.
Jon L. Schoenhorn, for the defendant in error-respondent (James A. McCahill).
Bruce R. Lockwood, assistant state's attorney, with whom, on the brief, were John M. Bailey, chief state's attorney, Scott J. Murphy, state's attorney, and Brian Preleski, assistant state's attorney, for the defendant in error-petitioner (state).
Richard Blumenthal, attorney general, Gregory T. D'Auria, associate attorney general, and Jane R. Rosenberg, assistant attorney general, filed a brief for the office of the attorney general as amicus curiae.
Richard Emanuel filed a brief for the Connecticut Criminal Defense Lawyers Association et al. as amici curiae.
Helen L. McGonigle, Douglas E. Beloof, pro hac vice, and Gina McClard, pro hac vice, filed a brief for the National Center for Victims of Crime et al. as amici curiae.
G. Douglas Nash, chief of legal services, and Gerard A. Smyth, chief public defender, filed a brief for the office of the chief public defender as amicus curiae.
This is a petition for bail review filed by the state pursuant to General Statutes § 54-63g.1 The dispositive issue presented is whether an amendment to General Statutes (Rev. to 1999) § 54-63f, namely, No. 00-200, § 5, of the 2000 Public Acts (P.A. 00-200, § 5),2 which prohibits a trial court from releasing on bail any person who has been convicted of an offense "involving the use, attempted use or threatened use of physical force against another person," violates the separation of powers provision contained in article second of the Connecticut constitution, as amended by article eighteen of the amendments.3 The state challenges the order of the trial court releasing the defendant, James A. McCahill, on bail pending his appeal from the trial court's judgment of conviction of burglary in the first degree in violation of General Statutes § 53a-101 (a) (2),4 and sexual assault in the first degree in violation of General Statutes § 53a-70 (a)(1).5 The trial court's order of release on bail was based on its determination that P.A. 00-200, § 5, violated the separation of powers provision. We agree with the trial court. In addition, for the reasons that follow, we need not address the claim of the plaintiff in error, Jennifer F., the victim of the burglary and sexual assault, and the victim advocate, in the writ of error to this court, that she has standing as a victim to pursue an appellate remedy for a claimed violation of a right contained in article first, § 8(b), of the Connecticut constitution, as amended by articles seventeen and twenty-nine of the amendments,6 which is more commonly known as the victim's rights amendment, because we conclude that the writ of error is moot.
The following facts and procedural history are relevant to our resolution of the petition for review and writ of error. On May 23, 2001, the defendant was found guilty, following a jury trial, of burglary in the first degree and sexual assault in the first degree for an incident that had occurred in January, 1999. Following the trial court's acceptance of the jury verdict, the state requested that the defendant be held without bail pending sentencing, in accordance with P.A. 00-200, § 5. After hearing argument from the parties on this issue, the trial court, Hon. Bernard D. Gaffney, judge trial referee, declined to take the defendant into custody and, instead, set bond at $250,000. The defendant thereafter posted bond and was released.
The trial court then referred the matter to the adult probation department for the preparation of a presentence investigation and report. On August 9, 2001, the trial court sentenced the defendant to twelve years imprisonment, execution suspended after six years, with six years special parole. After imposition of the sentence, the defendant requested that he be released on bail during the pendency of his appeal. The state objected on the ground that the defendant had been convicted of a crime involving the use of physical force against another person and, therefore, P.A. 00-200, § 5, prohibited the defendant's release on bail. After hearing argument from the parties and the state victim advocate7 on this issue, the trial court released the defendant on $250,000 bond, on the basis of its conclusion that P.A. 00-200, § 5, violated the separation of powers provision. The trial court also ordered the defendant to avoid any contact with the victim.
The day after imposition of the defendant's sentence and his release on bond, the state, pursuant to § 546-3g, filed this petition for review in the Appellate Court challenging the trial court's order releasing the defendant on bail following the imposition of his sentence.8 On August 23, 2001, the victim filed a writ of error in this court. The victim advocate initially acted as counsel for the victim in prosecution of the writ.9 In the writ, the victim also challenged the trial court's decision to release the defendant and asserted that her constitutional right under the victim's rights amendment to be "reasonably protected from the accused" was violated by the defendant's release. We transferred the state's petition for bail review to this court pursuant to General Statutes § 51-199(c)10 and Practice Book § 65-3,11 and we ordered that it be consolidated with the writ of error.
We first address the victim's writ of error to this court. For the reasons that follow, we dismiss the victim's writ of error as moot, and do not resolve whether the victim's rights amendment affords either the victim or the victim advocate the right to bring a writ of error for a purported violation of a right contained in the amendment. We conclude that, because of the procedural circumstances of these cases, a resolution of that question is not necessary to the ultimate issue addressed by all parties in both cases before this court, namely, whether P.A. 002-00, § 5, violates the separation of powers provision of our state constitution.
As previously noted, the two cases consolidated for argument before this court were the petition for review of the defendant's release on bail brought by the state and the writ of error brought by the victim. It is well established law that appellate rights are established by statute. (Citations omitted.) State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983). The ability to bring an appeal, in the civil or criminal context, depends upon the legislative authorization as contained in the General Statutes. The writ of error, however, is a concept (Citations omitted.) Banks v. Thomas, 241 Conn. 569, 584, 698 A.2d 268 (1997). In other words, although the legislature has codified the right to bring a writ of error in General Statutes § 52-272,12 that right exists independent of its statutory authorization.
The right to bring a petition for review of a bail decision, however, was created solely through the statutory enactment of § 54-63g. There is no independent, common-law basis for the petition. It is beyond cavil that, pursuant to § 54-63g, the victim is precluded from participating as a party in the state's petition for review. Section 54-63g makes review of a release order available to two parties: the state and the defendant. Although the victim has certain constitutional rights; see Conn. Const., amend. XXIX; which may have to be respected during the pendency of any appellate proceeding, the language of § 54-63g makes unequivocal the preclusion of a victim as a party in a petition for review. A victim seeking appellate vindication of these rights, therefore, must proceed, if at all, by writ of error, as the victim does here.
In the writ of error, the victim claims that her constitutional right to reasonable protection from the accused was violated by the trial court's release of the defendant. A preliminary question to that substantive issue, however, is whether the victim may seek appellate relief for a claimed violation of a right contained in the victim's rights amendment. This is, in part, a question of whether the victim has standing to pursue this writ of error. Ultimately, however, she must argue, as she does, that the trial court improperly concluded that P.A. 00-200, § 5, was unconstitutional. This ultimate issue is the very same issue that is before this court in the petition for review brought by the state. In both the writ of error and in the petition for review, therefore, our ultimate determination is whether the trial court correctly concluded that P.A. 00-200, § 5, violated the separation of powers provision of the Connecticut constitution. Because both the writ of error and the petition for review raise the very same ultimate question, we conclude that the issue of standing under the writ of error is not necessary to our determination of the constitutionality of P.A. 00-200, § 5.
Put another way, the victim seeks by way of the writ of error, the ability to bring before this court the issue of whether the trial court...
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