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State v. Patel

Court of Appeals of Connecticut

June 27, 2017


          Argued February 3, 2017

         Appeal from Superior Court, judicial district of Litchfield, Danaher, J.

          Rachel M. Baird, for the petitioner (American News and Information Services, Inc.).

          Robert J. Scheinblum, senior assistant state's attorney, for the respondent (state).

          Sheldon, Keller and Prescott, Js.


          PRESCOTT, J.

         In this criminal matter, the petitioner, American News and Information Services, Inc., seeks relief, pursuant to Practice Book § 77-1 and General Statutes § 51-164x (c), [1] from an order of the trial court that, although allowing the petitioner to view certain documents that were marked as exhibits in the underlying murder trial prosecuted by the respondent, the state of Connecticut, against the defendant, Hiram M. Patel, [2]prevented the petitioner from obtaining copies of those exhibits. The petitioner claims that the exhibits at issue are judicial documents to which a presumption of public access attaches, and that the court, in violation of Practice Book § 42-49A, [3] improperly limited the petitioner's access to them without first articulating on the record the overriding interest that the court's order was intended to protect or specifying its findings underlying its order.

         The respondent contends that we should dismiss the petition for review because, in its view, there was no court order that limited disclosure of or denied the petitioner access to any exhibits or other materials, and the existence of such an order is a factual predicate necessary to invoke our jurisdiction under § 51-164x. See also Practice Book § 77-1. According to the respondent, the court's order merely placed reasonable restrictions on copying exhibits that, at most, limited the dissemination of those exhibits, which the respondent maintains was a permissible restriction authorized pursuant to Practice Book § 1-11C.[4] The respondent further asserts that such an order was final; see Practice Book § 1-11C (j); and, thus, cannot be challenged in a petition for review.

         On the basis of our review of the record, we agree with the petitioner that the court improperly limited the disclosure of judicial documents without adhering to the procedural safeguards required under our rules of practice. Accordingly, we vacate that portion of the court's order preventing the petitioner from obtaining copies of trial exhibits and direct the court to follow the procedures set forth in Practice Book § 42-49A prior to rendering any new order limiting disclosure of exhibits.

         The following procedural history is relevant to our consideration of the petitioner's claims. On December 28, 2016, the petitioner submitted a request with the Chief Court Administrator to video record the underlying criminal proceedings. That request was forwarded to the trial court, Danaher, J., which heard arguments on January 4, 2017. Both the defendant and the respondent objected to having the trial proceedings recorded. In response to the petitioner's request, the respondent also filed two motions that asked the court to place restrictions on any audiotaping, videotaping, or photo- graphing of portions of the criminal trial.

         In the first motion, the respondent, citing Practice Book § 1-11C (e), (g) and (i), asked the court to disallow the recording or photographing of the testimony of the victim's mother, the medical examiner, two additional fact witnesses, and of any testimony discussing the decedent's body or photographs thereof. The respondent argued that there were significant safety and privacy concerns warranting its request.

         The second motion cited Practice Book § 1-11B (g), [5]and asked the court to disallow any photographing or video recording of an undercover police detective, whom the respondent intended to call as a witness at trial. The respondent argued that because the detective continued to engage in undercover activities, his safety would be seriously compromised by any disclosure of his appearance. The state did not object, however, to any audio recording of the detective's testimony.

         After hearing from the parties and the petitioner, the court granted the petitioner's request to video record the trial, subject to written orders issued by the court that required the petitioner to follow certain rules throughout the trial proceedings.[6] The court also granted the respondent's two motions and the additional restrictions requested therein.

         On January 25, 2017, the petitioner requested copies of exhibits entered into the record as full exhibits, but the court clerk's office denied the request. In response, the petitioner filed a motion asking the court for clarification of its January 4, 2017 ruling, ‘‘related orders, '' ‘‘and such other directive/order/ruling applicable to [the petitioner]'s access to trial exhibits.'' The petitioner asserted in its motion that the court had directed the clerk's office to deny the petitioner ‘‘copies of full exhibits entered in public view while the jury was present and not subject to any sealing order.'' (Footnote omitted.) The petitioner further noted that such a prohibition on disclosure was not part of the relief granted to the respondent, nor was an order pertaining to exhibits included in the court's January 4, 2017 written orders. The petitioner indicated that it intended to seek review of the court's directive, and asked the court to clarify whether the prohibition on obtaining copies applied (1) to the public or just the petitioner, and (2) to all exhibits submitted during trial or only a subset of trial exhibits.

         The court addressed the petitioner's motion during proceedings later in the day on January 25, 2017. The attorney for the petitioner was not present. The court first indicated that, contrary to the petitioner's assertions in the motion to clarify, it had never instructed the clerk's office to deny the petitioner copies of exhibits. The court explained that, because it never issued any order regarding exhibits, the motion to clarify was founded on a faulty premise, and it could not clarify an order it never issued. The court then stated that ‘‘[a]ny exhibit that is a full exhibit is available to any member of the public to view. Any member of the public can come here and look at any exhibit. There are some exhibits that are subject to an order that they not be videoed and otherwise disseminated, and that includes, for example, I believe, possibly autopsy photographs, some crime scene photographs, photographs of victims, if there were such.'' (Emphasis added.)

         The court proceeded to indicate that there was no prohibition on the petitioner seeing any exhibit, ‘‘[a]nd, in fact, they can have copies of the exhibits, and they can disseminate the full exhibits with the exception of those subject to the order. The problem in effectuating that is that there are some exhibits, like some CDs that might have twenty or thirty photographs in them, some of which are not subject to the sealing order but some of which are, and the parties have, to my understand-ing-I've conveyed this several days ago to the parties that there is this request. I have no problem with it. I acquiesce in it. The parties have been busy and have not had time to go through all of these exhibits and sort out those that are subject to the sealing order, those that are not . . . .''[7] (Emphasis added.) As set forth more fully in part II A of this opinion, we construe the court's decision as an order establishing that, although the public and the petitioner could examine all of the trial exhibits at the clerk's office, a subset of those exhibits, including crime scene and autopsy photographs, could not be copied.

         The following day, January 26, 2017, the petitioner filed a second motion for clarification asking the court to explain its January 25, 2017 oral response to the first motion for clarification. After quoting the court's several references to a ‘‘sealing'' order that instructed that certain exhibits not be ‘‘videoed and otherwise disseminated, '' the petitioner noted that no party had sought to seal any trial exhibits pursuant to Practice Book § 11-20A (c) and (d) (2), [8] and that the court's January 4, 2017 orders only effectuated restrictions on the videotaping of trial proceedings, including limiting the recording of certain witnesses. Because the court's January 25, 2017 ruling nevertheless acknowledged two distinct categories of exhibits-one that included exhibits that could be viewed, copied and disseminated by anyone, and a second that included exhibits that could be viewed at the courthouse but not copied-the petitioner asked the court to produce a list identifying which exhibits were in which category. With respect to the exhibits in the second category, the petitioner indicated that it intended to seek review of the court's ruling in accordance with Practice Book § 77-1. Later that same day, the petitioner asserts, it was provided with a copy of the list of trial exhibits, although nothing on that list indicated which exhibits, if any, were subject to the ‘‘sealing'' order referenced by the court. To date, the court has not taken any further action on the petitioner's second motion for clarification.

         On January 27, 2017, the petitioner filed this petition for review in which it challenges the court's January 25, 2017 ruling limiting its right to obtain copies of certain exhibits. The petitioner argues that the trial exhibits are all judicial documents and, thus, are presumptively subject to the public's right of access. It claims that the court improperly restricted that access without following procedures in place to protect the interests of the public and the petitioner.[9] See Practice Book § 42-49A.

         The respondent filed a response to the petition on January 30, 2017. The respondent asks us to dismiss the petition, arguing that the petitioner has mischaracterized the court's January 25, 2017 response to the motion to clarify either as a sealing order or as an order denying it access to exhibits. The respondent contends that the court never issued an order pursuant to Practice Book § 42-49A that sealed or limited the disclosure of exhibits. Rather, the respondent maintains that the only orders rendered by the court were those issued pursuant to Practice Book § 1-11C, and that the court only limited further dissemination of certain exhibits. According to the respondent, such orders are final and not properly the subject of a petition for review. Alternatively, the respondent asks that, to the extent the record is ambiguous regarding the nature of the court's January 25, 2017 ruling, we should remand the matter to the trial court ‘‘for a hearing on [the petitioner]'s claim that it has been denied access to exhibits, so that a factual predicate for such a claim, and any trial court ruling regarding it, may be established.'' This court heard oral argument on the petition on February 3, 2017.[10]


         Before turning to the merits of the petition for review, we must first address whether we have jurisdiction over the petition, an issue that was raised and argued by the parties at oral argument. The respondent takes the position that the petition should be dismissed because the court never issued an order denying the petitioner access to exhibits, but only placed restrictions on their dissemination in accordance with Practice Book § 1-11C. We disagree that the court's order was so limited and conclude that the petition properly invokes our jurisdiction under § 51-164x (c).

         It is axiomatic that the subject matter jurisdiction of the Appellate Court is governed by statute, and that unless the legislature specifically provides otherwise, our jurisdiction is limited to final judgments of the trial court. Ruggiero v. Fuessenich, 237 Conn. 339, 344-45, 676 A.2d 1367 (1996); see also General Statutes § 52-263. An example of such a statutory grant of jurisdiction over an otherwise interlocutory ruling is found in § 51-164x (c), which permits ‘‘[a]ny person affected'' to obtain expedited review of any court order that ‘‘seals or limits the disclosure of any files, affidavits, documents or other material on file with the court or filed in connection with a court proceeding . . . .'' General Statutes § 51-164x (c); see also Practice Book § 77-1.

         Appellate courts, in applying certain exceptions to our final judgment rule, have stated that a party wishing to invoke our jurisdiction need not conclusively demonstrate the factual predicate necessary to establish jurisdiction, but must set forth only a colorable claim that such a factual basis exist. Even if an appellant ultimately fails to establish those facts on appeal, this court does not lose jurisdiction; the appeal simply fails on its merits.[11] For example, the denial of a motion to intervene is immediately appealable only if the moving party can make a colorable claim of entitlement to intervene as a matter of right. See Common Condominium Assns., Inc. v. Common Associates, 5 Conn.App. 288, 291, 497 A.2d 780 (1985). If the motion to intervene merely sets forth a colorable claim to intervention as of right, ‘‘on appeal the court has jurisdiction to adjudicate both his claim to intervention as a matter of right and to permissive intervention.'' Id.; see also State v. Crawford, 257 Conn. 769, 775, 778 A.2d 947 (2001) (denial of motion to dismiss criminal charges immediately appealable if motion raises ‘‘colorable claim'' of double jeopardy), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002); Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000) (denial of motion to dismiss raising colorable claim of sovereign immunity immediately appealable), overruled in part on other grounds by Miller v. Egan, 265 Conn. 301, 325, 828 A.2d 549 (2003).

         Thus, in order to invoke our jurisdiction under § 51-164x, the factual allegations of the petition need not conclusively establish the existence of a Practice Book § 42-49A order, they must only allege sufficient facts necessary to establish a colorable claim that the court has rendered an order that ‘‘seals or limits the disclosure'' of some material filed with the court. General Statutes § 51-164x (c). The petitioner does not suggest that the court issued a sealing order, but rather relies on the ‘‘limits the disclosure'' language of the statute. General Statutes § 51-164x (c). To establish a colorable claim, a party must demonstrate only that there is a possibility, rather than a certainty, that the court's order falls within the confines of the statutory provision. See State v. Tate, 256 Conn. 262, 276-77, 773 A.2d 308 (2001). If the petition satisfies this threshold inquiry, we have jurisdiction to consider both whether the court's order in fact limited the disclosure of materials as contemplated by § 51-164x and, if so, whether the court abused its discretion in so ordering.

         Here, resolution of the jurisdictional dispute turns largely upon whether we construe the court's ruling of January 25, 2017, as a sua sponte order under Practice Book § 42-49A that limited the disclosure of certain trial exhibits-an order from which a petition for review certainly would lie-or whether the court was merely exercising its authority under Practice Book § 1-11C, which, under the provisions of the rule, would constitute a final, and arguably unreviewable, order on the merits. See Practice Book § 1-11C (j) (‘‘[t]he judicial authority shall articulate the reasons for its decision on whether or not to limit or preclude electronic coverage of a criminal proceeding or trial, and such decision shall be final'' [emphasis added]); State v. Rupar, 293 Conn. 489, 496, 978 A.2d 502 (2009) (interpreting identical language in General Statutes § 51-196[d] that decision of sentence review division ‘‘shall be final'' as meaning no form of appellate review is available with respect to merits of decision).[12] We do not agree with the respondent that the court's ruling is best characterized as a component of or an addition to its existing order under Practice Book § 1-11C, and conclude that the petitioner has met its burden of establishing a colorable claim that the court's order limited the disclosure of materials presumptively available to the public and, thus, was subject to the procedural requirements of Practice Book § 42-49A.

         Practice Book § 1-11C is located in the general provisions section of our rules of practice, among other rules pertaining to the possession of electronic devices in court facilities and media coverage of court proceedings in general. Provisions applicable to all media coverage in the Superior Court are found in Practice Book § 1-10B. Practice Book § 1-11C contains specific provisions governing media coverage of a criminal proceeding. A ‘‘criminal proceeding'' is defined in the rule as ‘‘any hearing or testimony, or any portion thereof, in open court and on the record, '' except arraignments, which are governed by separate rules set forth in Practice Book § 1-11A.[13] Subsection (a) of § 1-11C provides in relevant part that ‘‘the broadcasting, televising, recording or photographing by media of criminal proceedings and trials in the [S]uperior [C]ourt shall be allowed except as hereinafter precluded or limited . . . .'' (Emphasis added.) Thus, by their express terms, the remaining provisions in § 1-11C establish the parameters of the court's authority to permit or limit media coverage of proceedings that occur in the courtroom.

         Nothing in the provisions of Practice Book § 1-11C addresses a court's authority, outside the confines of the broadcasting, televising, recording, or photographing of courtroom proceedings, to limit access to, or the disclosure of, materials filed or lodged with the court (or the procedures for doing so), including limiting access to materials in the custody of the clerk's office, which, by default, are generally available to the public. Practice Book § 42-49A (a). A contrary conclusion would allow a court to seal or limit the disclosure of judicial documents that otherwise would be prohibited by Practice Book § 42-49A merely by the happenstance that there was media coverage of the trial and the documents were marked as exhibits.[14]

         The absence of any provision in Practice Book § 1-11C regarding access to trial exhibits is important to note because, as we have previously indicated, our rules provide that orders that merely limit media coverage of trial proceedings ‘‘shall be final'' and, thus, arguably unreviewable. Practice Book § 1-11C (j). Accordingly, it is important to avoid mislabeling an order intended to limit disclosure of materials to the public as merely a limitation on media coverage because to do so would thwart review that the legislature expressly has sanctioned in § 51-164x.

         The only reference in Practice Book § 1-11C to exhibits is found in subsection (h), which was not raised by the respondent in its written opposition to the petition, but was raised at oral argument by the court. Subsection (h) provides: ‘‘Objection raised during the course of a criminal proceeding or trial to the photographing, videotaping or audio recording of specific aspects of the proceeding or trial, or specific individuals or exhibits will be heard and decided by the judicial authority, based on the same standards as set out in subsection (f) of this section used to determine whether to limit or preclude coverage based on objections raised before the start of a criminal proceeding or trial.'' (Emphasis added.) Practice Book § 1-11C (h). Subsection (f) in turn provides: ‘‘The judicial authority, in deciding whether to limit or preclude electronic coverage of a criminal proceeding or trial, shall consider all rights at issue and shall limit or preclude such coverage only if there exists a compelling reason to do so, there are no reasonable alternatives to such limitation or preclusion, and such limitation or preclusion is no broader than necessary to protect the compelling interest at issue.'' (Emphasis added.) Practice Book § 1-11C (f).

         Placed in context of the overall subject matter of the rule, the reference to exhibits in subsection (h) are clearly and unambiguously directed at instances in which an objection arises during a criminal proceeding regarding the media's photographing or videotaping, or the audio recording of exhibits utilized by the parties during the criminal proceeding. This rule has no bearing on and provides no authority for the court to limit access to exhibits except during criminal proceedings, as that term is narrowly defined in the provision. Rules governing limitations on disclosure are explicitly contained in Practice Book § 42-49A, which imposes certain procedural safeguards and an opportunity for review in accordance with § 51-164x and the procedures contained in Practice Book § 77-1.

         It is undisputed that the petitioner was granted the privilege to video record the criminal trial. It is also undisputed that the respondent, prior to trial, filed motions pursuant to Practice Book § 1-11C, and that the court granted those motions and issued additional restrictions on media coverage in its ruling of January 4, 2017. Nothing in the respondent's motions regarding media coverage or the court's subsequent orders, however, addressed trial exhibits, and, in particular, whether the petitioner was prevented from obtaining copies of the exhibits. The only materials referenced in the motion as likely to be exhibits were autopsy photographs of the victim, and the motion asked only that the court disallow any broadcasting of testimony discussing the autopsy, the victim's body or photographs thereof. The parties have not asserted nor does the record disclose that the court entered any additional, related order directed at any exhibits on file with the court, including autopsy or crime scene photographs.

         The petition for review does not seek to challenge any of the court's orders related to media coverage in the courtroom. Rather, the petition expressly challenges only the court's January 25, 2017 response to the first motion to clarify, in which the court expressed that certain exhibits were the subject of a ‘‘sealing'' order and, although they could be viewed at the clerk's office, copies could not be made. Given (1) that § 51-164x permits expedited review of any order that ‘‘seals or limits the disclosure of any . . . material on file with the court, '' (2) that § 51-164x does not define what it means to limit disclosure, and no court has construed that term, (3) that the allegations in the petition, supported by copies of transcripts, indicate that, on January 25, 2017, the court limited the petitioner's ability to obtain copies of exhibits on file with the court, and (4) that the court made several references to a prior ‘‘sealing'' order, we are convinced that the petitioner has raised a colorable claim sufficient to establish our jurisdiction over the petition. That the petition properly invokes our jurisdiction is further demonstrated in our substantive discussion of the petition, which follows.


         The petitioner maintains that the court's January 25, 2017 ruling, which effectively disallowed the petitioner from obtaining copies of all trial exhibits, was improper because the court's order limited the disclosure of materials on file with the court without adherence to any of the procedures set forth in Practice Book § 42-49A. For the reasons that follow, we agree.

         We note as a starting point of our review that the exact nature of the court's January 25, 2017 ruling is somewhat difficult to categorize. It was not rendered in response to a motion expressly invoking Practice Book § 42-49A, but rather as part of the court's oral ruling on a motion to clarify an order allegedly directing the clerk's office not to allow copies to be made of trial exhibits. The court, however, disavowed having rendered any such order. The court nevertheless sanctioned, and effectively adopted, the actions of the clerk's office by perpetuating a prohibition on copying certain exhibits, and maintaining that the prohibition was consistent with a prior ‘‘sealing'' order for which there is no record. In any event, in construing a court's decision, we are concerned with the substance and effect of that decision, rather than with any label attached to the order by the parties or the court. State v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010) (‘‘As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The determinative factor is the intention of the court as gathered from all parts of the [order or] judgment. . . . The interpretation of [an order or] judgment may involve the circumstances surrounding [its] making . . . . Effect must be given to that which is clearly implied as well as to that which is expressed.'' [Internal quotation marks omitted.]).

         The gravamen of the court's January 25, 2017 ruling was that the petitioner was entitled to view, but not make copies of, certain unspecified trial exhibits in the custody of the court. We therefore must determine (1) whether the prohibition on making copies ‘‘limited the disclosure'' of those exhibits and, if so, (2) whether the court followed all required procedural safeguards.


         Section 51-164x (c) permits expedited review of a court order that either ‘‘seals or limits the disclosure'' of materials filed with the court.[15] The statute's use of the conjunctive signifies that an order limiting disclosure of materials is something distinct from a sealing order. As we have already indicated, however, there is nothing in our statutes, rules of practice or case law that defines what it means to ‘‘limit the disclosure'' of materials. We nevertheless conclude, for the reasons that follow, that an order that prevents the media or the public from obtaining copies of documentary or photographic trial exhibits, unless ...

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