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State v. Damato-Kushel

Supreme Court of Connecticut

December 5, 2017


          Argued May 2, 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 error[1] 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-Kus-hel 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 prevent 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., 525 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.


         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 preventing 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 that there is probable cause to believe that an offense has been committed and that the accused committed it''). It is undisputed, moreover, that, in the present case, the arrest warrant application clearly alleged that Damato-Kus-hel's criminal misconduct was perpetrated against the plaintiff in error specifically. In such circumstances, we agree with the plaintiff in error that the arrest warrant constitutes a sufficient determination of his status as a victim to trigger the rights afforded by amendment XXIX (b) of the Connecticut constitution. See, e.g., State v. Stauffer, 203 Ariz. 551, 553, 58 P.3d 33 (App. 2002) (victims' rights arise ‘‘on the arrest or formal charging of the person or persons who are alleged to be responsible for a criminal offense against a victim'' [internal quotation marks omitted]). Furthermore, contrary to the assertions of the defendants in error, we see no inconsistency between this conclusion and our unwillingness to condone the use of the term ‘‘victim'' during certain trial proceedings before a jury prior to conviction; see, e.g., State v. Cortes, 276 Conn. 241, 249 n.4, 885 A.2d 153 (2005) (referring to complainant in jury charge as ‘‘ ‘victim' '' was ‘‘inappropriate [when] the very commission of a crime [was] at issue''); because, in those circumstances, the jury must decide whether the complainant was, in fact, the victim of a crime perpetrated by the defendant. Nor have the defendants in error provided any authority requiring a more robust adjudicatory process for identifying victims under the victim's rights amendment than that required for the issuance of an arrest warrant.

         The defendants in error next maintain that the ruling of the trial court was not a final judgment from which a writ of error may be brought. We also disagree with this claim. This court previously has held that ‘‘[a]n 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. Under Curcio's second prong, the prong asserted by the plaintiff in error in the present case, ‘‘[a] presentence order will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial.'' (Internal quotation marks omitted.) Id., 33-34. Because the trial court in the present case excluded the plaintiff in error from all future, in-chambers, pretrial disposition conferences, it is clear that the alleged right to attend such conferences would be irretrievably lost if the plaintiff in error could not challenge the trial court's decision on an interlocutory basis.

         The defendants in error argue, nonetheless, that, under State v. Longo, 192 Conn. 85, 469 A.2d 1220 (1984), the denial of an alleged constitutional right to attend pretrial disposition conferences cannot constitute a final judgment or form the basis for an interlocutory appeal because the right itself is not clearly established. This argument misconstrues Longo. In that case, we explained that a defendant ‘‘must do more than show that the trial court's decision threatens him with irreparable harm. The defendant must show that that decision threatens to abrogate a right that he or she then holds.'' (Emphasis in original.) Id., 91. On that basis, we concluded that the designation of youthful offender status, which lies purely within the discretion of the trial court, is on different footing than a right granted by the constitution, such as the ‘‘unqualified right to be free from double jeopardy''; id.; and we further explained that an order that ‘‘plausibly'' threatens to abrogate the latter is an appealable final judgment, whereas an order denying youthful offender status is not. Id., 91-92.

         Thus, Longo actually belies the claim of the defendants in error that the trial court's ruling in the present case is not a final judgment: the right to attend court proceedings as a victim, like the protection against double jeopardy, is a right granted by the state constitution, not a right that emerges only after the discretionary determination of the trial court. See State v. Skipwith, supra, 326 Conn. 520 n.10 (specific rights granted by amendment XXIX [b] are immediately effective). Furthermore, although we have held that ‘‘merely invoking'' constitutional protections, ‘‘no matter how implausible or incongruous the claim might be, '' will not provide the basis for an interlocutory appeal; State v. Curcio, supra, 191 Conn. 37; the plaintiff in error has advanced a colorable claim that the constitutional right to attend court proceedings encompasses the right to attend in-chambers, pretrial disposition conferences. Because that right will be destroyed if appellate review is delayed until judgment is rendered in the underlying criminal case; see id., 34; the trial court's ruling is a final judgment for purposes of the writ of error in this case.

         Finally, the defendants in error argue that the victim's rights amendment itself bars the plaintiff in error from seeking any kind of appellate relief. See Conn. Const., amend. XXIX (b) (‘‘[n]othing in this subsection or in any law enacted pursuant to this subsection shall be construed as creating a basis for vacating a conviction or ground for appellate relief in any criminal case''). Following oral argument in the present case, however, this court rejected just such an argument in State v. Skipwith, supra, 326 Conn. 524-25, in which we held that nothing in the state constitution precludes victims from seeking relief for a violation of the victim's rights amendment by way of a writ of error. We explained that the language in the amendment barring appellate relief ‘‘merely prohibits this court from granting any relief that would directly affect the judgment in a criminal case or otherwise abridge the substantive rights of a defendant.'' Id. The relief that the plaintiff in error seeks in the present case would do neither. Although the defendants in error maintain that the presence of the plaintiff in error or his counsel at in-chambers, pretrial disposition conferences would adversely affect the plea discussions that occur in that setting, any such negative impact would occur before judgment has been rendered, and, thus, the judgment itself would not be adversely affected. Moreover, it cannot reasonably be maintained that the presence of the plaintiff in error or his representative at an in-chambers, pretrial disposition conference would so deter or discourage the state's attorney and Damato-Kushel from engaging in plea negotiations as to abridge any of Damato-Kushel's substantive rights. Accordingly, we have jurisdiction to entertain the claims raised by the writ of error in the present case.[7]


         We turn now to the merits of those claims. The plaintiff in error contends that the trial court improperly excluded his attorney from in-chambers, pretrial disposition conferences at which the presiding judge, the state's attorney and Damato-Kushel's counsel engaged in plea negotiations, in violation of his ‘‘right to attend the trial and all other court proceedings the accused has the right to attend, '' as guaranteed by amendment XXIX (b) (5).[8] The defendants in error maintain that the trial court properly concluded that a victim's right to attend does not include off-the-record, in-chambers disposition conferences both because such conferences are not ‘‘court proceedings'' and because the defendant has no right to attend them.

         Amendment XXIX (b) of the Connecticut constitution provides in relevant part that, ‘‘[i]n all criminal prosecutions, a victim . . . shall have . . . (5) the right to attend the trial and all other court proceedings the accused has the right to attend, unless such person is to testify and the court determines that such person's testimony would be materially affected if such person hears other testimony . . . .'' With respect to the contention of the defendants in error that the plaintiff in error has no right to attend the pretrial conferences at issue because they are not ‘‘court proceedings, '' as that term is used in amendment XXIX (b) (5), the term appears twice in the victim's rights amendment; see Conn. Const., amend. XXIX (b) (5); see also Conn. Const., amend. XXIX (b) (4) (‘‘the right to notification of court proceedings''); but the term is not defined in the state constitution, in our statutes, or in any case of this court or the Appellate Court. At the time of the amendment, however, Black's Law Dictionary defined ‘‘proceeding'' as, inter alia, ‘‘[a]n act [that] is done by the authority or direction of the court, agency, or tribunal, express or implied'' and noted that it ‘‘may be used to describe any act done by authority of a court of law . . . .'' Black's Law Dictionary (6th Ed. 1990) p. 1204.[9]The modifier ‘‘court'' therefore might reasonably distinguish proceedings undertaken pursuant to the authority of a court of law, such as disposition conferences, [10]from those undertaken by an agency or other tribunal. On the other hand, ‘‘court proceedings'' also may reasonably be construed to limit the ‘‘act[s] done by authority of a court of law''; id.; to those taking place within the physical bounds of a courtroom, as opposed to those acts, like the execution of a bench warrant, undertaken elsewhere. See Webster's Ninth New Collegiate Dictionary (1987) p. 299 (‘‘court'' may be ‘‘a place . . . for the administration of justice'').[11]

         Because we cannot discern the meaning of the provision solely on the basis of the text of the amendment, we look to extratextual sources to guide our interpretation. Such evidence, however, does not definitively resolve the interpretative question posed by the claim of the plaintiff in error. On the one hand, we recognize that more than 90 percent of criminal cases in this state are resolved through plea bargains in any given year; see, e.g., Judicial Branch, State of Connecticut, Movement of Criminal Docket: Judicial District Criminal, July 1, 2015, to June 30, 2016, available at https://www.jud.ct. gov/statistics/criminal/Crim JD 1016.pdf (last visited November 22, 2017); and that our rules of practice both require and provide structure with respect to disposition conferences. See Practice Book §§ 39-11 through 39-17. Accordingly, we hesitate to characterize such mandated conferences, which are conducted under the active supervision of the court itself, as anything other than ‘‘court proceedings.''On the other hand, the conferences at issue in the present case are conducted informally and off the record, and, for that reason, we are hesitant to deem them court proceedings in the absence of reasonably clear evidence that we should do so.[12]We need not resolve this question, however, in light of our agreement with the alternative argument advanced by the defendants in error, namely, that the victim has no right to attend off-the-record, in-chambers disposition conferences because the defendant herself has no right to do so.

         The text of amendment XXIX (b) makes clear that a victim's right to attend such conferences is wholly contingent on the defendant's right of attendance. See Conn. Const., amend. XXIX (b) (5). This court has previously determined, however, in State v. Lopez, 197 Conn. 337, 497 A.2d 390 (1985), that a defendant possesses no such right under our rules of practice. In that case, the defendant, Jose Lopez, claimed that the trial court improperly had excluded him from ‘‘a secret pretrial conference between the court, the [s]tate's [a]ttorney, and [defense counsel], '' in which plea negotiations were conducted. (Internal quotation marks omitted.) Id., 348. We rejected Lopez' claim, explaining that, ‘‘[a]lthough there may have been a disposition conference from which [Lopez] was excluded, under our established rules of practice neither [Lopez] nor the public is entitled to attend such a proceeding. In fact, under Practice Book §§ [39-1 and 39-2], the [state] is not permitted to engage in plea negotiations directly with a defendant who is represented by counsel, except with defense counsel's permission. [See Practice Book §§ 39-1[13] and 39-2];[14] [s]ee also Practice Book § [39-14].[15]Furthermore, Practice Book § [44-7][16] does not include the disposition conference or plea negotiations among the specifically enumerated situations [in which] a criminal defendant has the right to be present.'' (Footnotes added and omitted.) State v. Lopez, supra, 349-50. Thus, Lopez-and, indeed, Practice Book § 44-7 itself-leaves no doubt that a defendant has no right to attend a disposition conference under our rules of practice. Moreover, the plaintiff in error makes no claim that he has a statutory or constitutional right independent of the victim's rights amendment to attend such a conference.

         Contrary to the assertions of the plaintiff in error, our conclusion in Lopez that a defendant has no right to attend disposition conferences is fully consistent with the language of Practice Book § 39-13, [17] which requires that the defendant ‘‘appear at the time set for the disposition conference unless excused by the judicial authority''-a requirement that is itself expressly subject to the discretion of the court-and does not purport to create a right of attendance in the defendant supplementary to the rights of attendance enumerated in Practice Book § 44-7. Indeed, under our rules of practice, a disposition conference is intended to be a discussion between ‘‘[t]he prosecuting authority and counsel for the defendant''; Practice Book § 39-14; such that the requirement that a defendant ‘‘appear at the time set for the disposition conference''; (emphasis added) Practice Book § 39-13; indicates only that the defendant shall be present in the courtroom, not that she must be involved in or present at in-chambers plea negotiations. Requiring the defendant's appearance in court during the disposition conference serves the purpose of making the defendant available for consultation with counsel and, in the event that an agreement is reached, to enter the plea in open court in accordance with that agreement.[18]See Practice Book § 39-24;[19] see also Mass. R. Crim. P. 11 (a) and reporter's notes (defendant ‘‘shall be available for attendance'' at pretrial conference so that his ‘‘assent to . . . agreements may readily be obtained'').

         The plaintiff in error further claims that the attendance of counsel for the defendant during plea negotiations at a disposition conference is no different from attendance by the defendant personally for purposes of the victim's right of attendance under amendment XXIX (b). Again, we disagree.

         Although it is well established that counsel often functions as an agent of the defendant; see, e.g., Monroe v. Monroe, 177 Conn. 173, 181, 413 A.2d 819, appeal dismissed, 444 U.S. 801, 100 S.Ct. 20, 62 L.Ed.2d 14 (1979); it is equally well established that the privileges, rights, and responsibilities of counsel are not identical to those of the defendant. See, e.g., State v. Gore, 288 Conn. 770, 779 n.10, 955 A.2d 1 (2008) (distinguishing fundamental rights that defendant must personally decide to waive from ‘‘tactical rights'' that are waivable by counsel). In the present context, it is defense counsel's responsibility to engage in plea negotiations on behalf of the defendant, albeit in consultation with the defendant as counsel reasonably deems necessary and appropriate. Only the defendant, however, can actually enter a plea of guilty, and any such plea proceedings must be conducted on the record. See, e.g., Florida v. Nixon, 543 U.S. 175, 187, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004) (‘‘counsel lacks authority to consent to a guilty plea on a client's behalf''); see also Practice Book § 39-24. In light of this division of authority within the plea process itself, we decline to interpret the provision of the victim's rights amendment allowing the victim to be present at proceedings that ‘‘the accused has the right to attend''; Conn. Const., amend. XXIX (b) (5); also to permit the victim to attend proceedings that counsel for the defendant, and not the defendant herself, has the right to attend. See Morehart v. Barton, 226 Ariz. 510, 515, 250 P.3d 1139 (2011) (victims' argument that ‘‘their right to attend proceedings ‘[at which] the defendant has a right to be present' should include proceedings [at which] either the defendant or defense counsel is entitled to appear . . . is refuted by the language of the [v]ictims' [b]ill of [r]ights . . . which refer[s] to the ‘defendant' rather than the ‘defense' or ‘defense counsel' '').

         We also disagree with the plaintiff in error that excluding victims from off-the-record, in-chambers disposition conferences is contrary to the goals of the victim's rights amendment. An important purpose of amendment XXIX (b) (5) and other state constitutional provisions like it was to address the concern that victims were being unreasonably excluded from the courtroom at trial and other on-the-record proceedings. See, e.g., State v. Ticknor, Docket No. 1 CA-CR 11-0359, 2012 WL 1067236, *3 n.4 (Ariz. App. March 29, 2012) (explaining that rule exempting victims from sequestration ‘‘gives effect'' to attendance provision of victim's rights amendment to Arizona constitution); State v. Beltran-Felix, 922 P.2d 30, 33-35, 38 (Utah App. 1996) (presence of victim at trial, as permitted by victim's rights amendment to Utah constitution, did not violate defendant's federal constitutional right to fair trial); National Victim Center, The 1996 Victims' Rights Sourcebook: A Compilation and Comparison of Victims' Rights Laws (1996) § 10, pp. 285-86 (identifying exclusion from trial as primary problem addressed by victim attendance provisions and noting ‘‘widespread misuse of the sequestration rule by defense attorneys'' to remove from courtroom ‘‘anyone who may draw the sympathy of the jury''); Final Report of the President's Task Force on Victims of Crime (December, 1982) p. 80 (noting that ‘‘[t]ime and again . . . victims . . . were unreasonably excluded from the trial at which responsibility for their victimization was assigned, '' and recommending that, ‘‘as an exception to the general rule providing for the exclusion of witnesses, [victims and their families] be permitted to be present for the entire trial''); see also State v. Swinton, 268 Conn. 781, 849, 847 A.2d 921 (2004) (state objected to defendant's request to sequester ‘‘ ‘[a]ny and all potential witnesses' '' on ground that defendant's request violated victims' right to be present under amendment XXIX); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 13, 2005 Sess., pp. 3795, 3798, testimony of James F. Papillo (noting that victims were often precluded from attending youthful offender proceedings and explaining that proposed legislation implementing provisions of victim's right amendment, which presumptively allowed victims to attend such proceedings, would ensure that victims of crimes committed by youthful offenders were accorded all rights granted by that amendment); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1988 Sess., p. 971, remarks of ...

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