State v. Southard

• Citation: 467 A.2d 920,191 Conn. 506
• Court: Connecticut Supreme Court
• Decision Date: 29 November 1983
• Parties: STATE of Connecticut v. Robert J. SOUTHARD.

Page 920

467 A.2d 920

191 Conn. 506

STATE of Connecticut v. Robert J. SOUTHARD.

Supreme Court of Connecticut.

Argued Oct. 6, 1983.

Decided Nov. 29, 1983.

Catherine J. Capuano, Sp. Asst. State's Atty., with whom were Edward T. Ricciardi, Asst. State's Atty. and, on brief, Francis M. McDonald, State's Atty., and John A. Connelly, Asst. State's Atty., for appellant (state).

Amy Ravitz, legal intern, with whom were Kenneth Rosenthal, Asst. Public Defender, and, on brief, Jerrold H. Barnett, Public Defender, and Alan D. McWhirter, Asst. Public Defender, for appellee (defendant).

Before SPEZIALE, C.J., and PETERS, HEALEY, SHEA and GRILLO, JJ.

PETERS, Associate Justice.

This case concerns the appealability of a pretrial order denying the state's request for a jury trial in a criminal action in which the defendant has elected to be tried by the court. On February 1, 1982, the defendant, Robert J. Southard, was charged by information with robbery in the second degree, in violation of General Statutes § 53a-135. On March 1, 1982, he entered a plea of not guilty and requested a jury trial. Subsequently, on the morning of October 18, 1982, the defendant withdrew his request for a jury trial and elected, pursuant to General Statutes § 54-82(a), ¹ to be tried by the court. The state having made no objection at that time, the trial court granted the defendant's request to transfer his case to the court trial list, and set a tentative trial date of November 10, 1982. Later that day a different assistant state's attorney appeared, indicated the state's opposition to the proposed court trial and requested the court to reconsider the matter in light of General Statutes § 54-82b, ² which, the state asserted, grants the state a right to a trial by jury notwithstanding the defendant's election. The state also filed a written demand for trial by jury. After hearing argument, the court noted the apparent conflict between § 54-82(a), which provides that a criminal defendant may elect to be tried by the court, and § 54-82b, which provides that "any party" to a criminal action may demand a jury trial. The court then held that the statutes should not be construed to grant the state a veto over the defendant's election, and denied the state's demand for a jury trial.

The state thereupon sought and obtained permission to appeal pursuant to General Statutes § 54-96, ³ notwithstanding the defendant's objection and the trial court's own view that the order was not an appealable final judgment. ⁴ The prosecution has been held in abeyance during the pendency of this appeal. Because we hold that the order denying the state's demand for a jury trial was not a final judgment, we dismiss the appeal.

This court's jurisdiction is limited by statute to appeals from final judgments; General Statutes §§ 51-197a, 52-263; and accordingly we have no discretion to enlarge our jurisdiction in abrogation of the final judgment rule. Our recent decisions have repeatedly emphasized that the statutory final judgment rule serves the important public policy of discouraging the delays and inefficiencies attending piecemeal appeals. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983); State v. Seravalli, 189 Conn. 201, 204, 455 A.2d 852 (1983); State v. Spendolini, 189 Conn. 92, 94, 454 A.2d 720 (1983); State v. Powell, 186 Conn. 547, 550-51, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, --- U.S. ----, 103 S.Ct. 85, 74 L.Ed.2d 80 (1982). That policy applies with particular force in criminal cases because, as both this court and the Supreme Court of the United States have recognized, "undue litigiousness and leaden-footed administration of justice [are] particularly damaging to the conduct of criminal cases." DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962); State v. Curcio, supra; State v. Spendolini, supra; State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938). ⁵

The appealable final judgment in a criminal case is ordinarily the imposition of sentence. State v. Curcio, supra, 191 Conn. 31, 463 A.2d 566; State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). We have recognized, however, in both criminal and civil cases, that certain otherwise interlocutory orders may be final judgments for appeal purposes. Recently we articulated a test for determining which interlocutory orders may be appealed. "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. Curcio, supra, 191 Conn. 31, 463 A.2d 566, citing State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979).

The state makes no claim that the trial court order denying its demand for a jury trial terminated a separate and distinct proceeding. Rather, the state seeks to fit this case within the second prong of the Curcio test, arguing that if the defendant's court trial is permitted to proceed, it will lose forever its right to a jury trial. The state reasons that if the defendant is convicted by the court, the state's claim of right to a jury trial will be moot, while if the court acquits him, any appeal by the state would be fruitless because the double jeopardy clause ⁶ would prohibit a second trial before a jury. ⁷ The defendant contends that the state may not rely on the threat of double jeopardy to avoid the final judgment rule, so long as the state is unwilling to risk terminating the prosecution in order to appeal the pretrial order. ⁸

At the outset we must acknowledge that the state has correctly analyzed the double jeopardy problem. The decisions of the Supreme Court of the United States have often reiterated the principle that a "judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error." Sanabria v. United States, 437 U.S. 54, 69, 98 S.Ct. 2170, 2181, 57 L.Ed.2d 43 (1978) (erroneous exclusion of evidence). See also United States v. Martin Linen Supply Co., 430 U.S. 564, 572, 97 S.Ct. 1349, 1355, 51 L.Ed.2d 642 (1977) (claimed error in rendering judgment of acquittal based on insufficiency of evidence); Fong Foo v. United States, 369 U.S. 141, 143, 82 S.Ct. 671, 672, 7 L.Ed.2d 629 (1962) (erroneous order directing verdict of acquittal based on finding of prosecutorial misconduct and lack of witness credibility). It is furthermore well established that the principles of the double jeopardy clause "appl[y] equally to trials by court and trials by jury." State v. Flower, 176 Conn. 224, 226, 405 A.2d 655 (1978) (state may not appeal judgment of acquittal by reason of insanity rendered by three judge panel). Accordingly, if a court trial in this case were to result in an acquittal, such an acquittal would preclude any further prosecution of this defendant on these charges, whether or not the court's decision to proceed without a jury had been in error.

Although the circumstances of this appeal appear, therefore, to fit literally within the language of the second prong of the Curcio test, as the state contends, we need not decide that issue because to permit this appeal now would be inconsistent with the fundamental requirements of the constitutional prohibition against double jeopardy. The intent of that constitutional prohibition is to shield criminal defendants from repeated prosecution; for that reason, the prohibition cannot in and of itself be utilized by the state as a sword to obtain review of interlocutory orders that would be unavailable to the defendant. The state has been unable to articulate any significant distinction between the error claimed on this appeal and any of the myriad evidentiary and procedural rulings which might possibly disadvantage the state during the course of a criminal proceeding, such as orders excluding evidence, requiring disclosure of information or granting changes of venue. Our decision in State v. Ross, 189 Conn. 42, 49-51, 454 A.2d 266 (1983), on which the state so heavily relies, is not to the contrary.

In State v. Ross, supra, the state's appeal was predicated upon a judgment of dismissal with prejudice, entered on the state's own motion. Because the state's appeal from an allegedly erroneous suppression of crucial evidence was thus conditioned on its willingness to stake the outcome of the prosecution on reversing the trial court's suppression of evidence; State v. Ross, supra, 50, 454 A.2d 266; we held that "[a] decision by the state to obtain dismissal of a prosecution with prejudice is a sufficiently serious precondition to the right of appeal to provide adequate assurance that this procedure will not be resorted to lightly." Id., 50-51, 454 A.2d 266.

In this case, however, the state has not satisfied the precondition set down by Ross. There is therefore no precedent for the state's position that the denial of its claim for a jury trial may be reviewed by a pretrial appeal without putting into jeopardy the possibility of securing a conviction at a court trial. Although we recognize the seriousness of the state's interest in resolution of the jury trial issue, the final judgment rule has never turned upon the gravity of the claims that are denied interlocutory review. ⁹

Our decision that the statutory question is not properly before us today does not forever foreclose our consideration of the construction of General Statutes §§ 54-82(a) and 54-82b. If a different trial court were to resolve the issue in favor of the state, a defendant could appeal his conviction by a jury over his election to be tried by the court. Alternatively, it is possible that the state may be able to raise the issue on cross appeal from a conviction after a court trial, where, as in this case, the state's demand for a jury trial was denied.

The appeal is dismissed.

In this opinion the other Judges...