State v. Smith

****************************************************************
The ‘‘officially released’’ date that appears near the
beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
****************************************************************
STATE OF CONNECTICUT v. JERMAINE SMITH
(SC 190482)
The defendant’s petition for certification, filed June
16, 2020, for review of the Appellate Court’s order (AC
194213) granting review of the trial court’s order con-
cerning release on bail but denying the relief requested
is dismissed.
July 28, 2020
PER CURIAM. In most circumstances, this court has
little or no role in reviewing trial court orders concern-
ing bail or pretrial release of an accused. In the ordinary
course, a petition seeking review of such an order is
ruled on by our Appellate Court, and the road for review
of these petitions pursuant to Practice Book § 78a-11
and General Statutes § 54-63g ends there.2 Although we
dismiss the petition for certification to appeal from the
order of the Appellate Court in the present case, we
recognize that these are unprecedented times and that,
as the highest court in our judicial system, we play a
critical role in providing guidance to lower courts. All
branches of government, and the public we serve, are
confronted with a global pandemic that challenges, in
every way, how we operate, deliver services, strive to
fulfill our core missions, and discharge our constitu-
tional and other legal responsibilities. The conditions
created by the pandemic challenge every convention
that we typically rely on, reflexively and as a matter of
routine, to conduct our business under normal circum-
stances. Guidance is needed to delineate procedures
for the appropriate consideration and disposition of
claims like those in the present case during these
extraordinary times, and it is our responsibility to pro-
vide it. Despite our capacity to do so, we have concluded
that it would be unwise to articulate procedural guide-
lines in the context of this case because of its particular
procedural posture. The purpose of this written order
is to explain what prevents us from doing so and, in
the process, to give trial courts, lawyers, and litigants
as much general guidance as possible under the circum-
stances.
I
FACTS AND PROCEDURAL HISTORY
On April 22, 2020, the defendant, Jermaine Smith,
moved for modification of his $250,000 bond and an
order granting his release on a promise to appear. In
support of his release, he explained that the Department
of Correction has experienced an increase in inmates
and staff members with confirmed cases of COVID-19.
The defendant asserted that his ‘‘severe asthma and
sleep apnea put him at an alarmingly heightened risk
of very serious and even fatal consequences should he
contract the virus.’’ According to the defendant, con-
finement under these conditions ‘‘violates his [federal]
constitutional rights pursuant to the due process clause
of the fifth amendment as well as the eighth amend-
ment’s prohibition of cruel and unusual punishment
. . . .’’ He requested that the trial court modify his bond
and release him from custody as a pretrial detainee.
The trial court held a hearing on the motion on April
27, 2020. The state responded to the defendant’s argu-
ments by relying on the seriousness of the allegations
and the defendant’s criminal history. The trial court
agreed with the state and denied the motion for bond
reduction ‘‘[b]ased on the nature of the allegations [and]
the defendant’s criminal history . . . .’’ The defendant
sought review of the trial court’s order pursuant to
Practice Book § 78a-1. The Appellate Court granted
review of the trial court’s order denying bail modifica-
tion but denied the relief requested. The defendant then
filed a petition for certification with this court on June
16, 2020, requesting review of the Appellate Court’s
denial of relief.
II
DISCUSSION
The general rule is that ‘‘interlocutory orders in crimi-
nal cases are not immediately appealable’’; State v.
Ayala, 222 Conn. 331, 339, 610 A.2d 1162 (1992); and a
judgment becomes final in a criminal case only after
the imposition of a sentence. See Practice Book § 61-
6 (a) (1). The legislature has provided for an exception
when it comes to the setting of a defendant’s bail. Spe-
cifically, General Statutes § 54-63g permits ‘‘[a]ny
accused person . . . aggrieved by an order of the Supe-
rior Court concerning release, [to] petition the Appel-
late Court for review of such order.’’ Our own rules of
appellate procedure contain the same avenue for
review. Practice Book § 78a-1. In State v. Fernando A.,
294 Conn. 1, 981 A.2d 427 (2009), we observed that an
appeal to this court ordinarily would not lie from a trial
court order concerning pretrial conditions of release
because the ‘‘exclusive nondiscretionary remedy from
an order concerning conditions of release is a petition
to the Appellate Court pursuant to . . . § 54-63g.’’ Id.,
5 n.3. We also have adhered to the view that a petition
for certification does not lie from the Appellate Court’s
denial of a petition for review of a defendant’s bail
determination. See State v. Ayala, supra, 341; see also
State v. McCahill, 261 Conn. 492, 503, 811 A.2d 667(2002) (‘‘The petition for review, authorized by § 54-
63g, is not an appeal by which we appropriately could
exercise jurisdiction via the certification authority con-
ferred upon us by General Statutes § 51-197f.’’). But see
In re Judicial Inquiry No. 2005-02, 293 Conn. 247,
254–55, 977 A.2d 166 (2009) (questioning reasoning
employed in Ayala to reach its jurisdictional holding).
Although there may not have been a bar to our review
of the trial court’s order regarding bail or pretrial release
had the case been presented under a different posture,3
three related concerns inform our decision not to exer-
cise jurisdiction over the defendant’s claims. First, the
procedural posture of the case would require us to
exercise jurisdiction on grounds that have not been
raised by the defendant. Standing alone, this fact may
not prevent us from taking the case up nonetheless if
that step was warranted, either by the demands of jus-
tice or by an overriding public interest in prompt resolu-
tion of the underlying legal issues. Our own rules of
practice confer broad authority on this court to act to
prevent injustice. See Practice Book § 60-1 (‘‘[t]he
design of these rules being to facilitate business and
advance justice, they will be interpreted liberally in any
appellate matter where it shall be manifest that a strict
adherence to them will work surprise or injustice’’
(emphasis added)).
This leads to our second concern, which is that the
record in the present case is devoid of any evidence
regarding the relevant conditions at the correctional
facility at which the defendant is incarcerated or the
nature and degree of the risk that the defendant claims
is heightened by his detention at that facility. We do
not necessarily fault the defendant for failing to make
a record in this regard because of the difficult circum-
stances under which the motion for modification was
litigated. However, defendants raising claims of this
nature should make efforts to provide the trial court
with all necessary information,4 and trial judges need
to give defendants an opportunity to do so in cases in
which they have raised legitimate health concerns. We
do not see how a claim of this kind can be properly
litigated or adjudicated in the absence of that infor-
mation.
Our third reservation is related to the first two. This
court has been provided with no information regarding
the scope of the problem, if any, beyond the present
case. We do not know if any other pretrial detainees
have raised similar claims, or whether there is in fact
a systemic need for the type of procedural guidance
that we anticipate would be required with respect to
pretrial detention during this pandemic. Other courts
issuing guidelines of this type have done so when con-
fronted with a demonstrated need. See Committee for
Public Counsel Services v. Chief Justice of the Trial
Court, 484 Mass. 431, 449, 142 N.E.3d 525 (‘‘Following
any arrest during the COVID-19 state of emergency, and
until further order of this court, a judicial officer should
consider the risk that an arrestee either may contract
COVID-19 while detained, or may infect others in a
correctional institution, as a factor in determining
whether bail is needed as a means to assure the individu-
al’s appearance before the court. Given the high risk
posed by COVID-19 for people who are more than sixty
years of age or who suffer from a [high risk] condition
as defined by the [Centers for Disease Control and
Prevention], the age and health of an arrestee should
be factored into such a bail determination. This is an
additional, temporary consideration beyond those
imposed by the relevant bail statutes . . . and by due
process principles.’’ (Citation omitted.)), modified on
other grounds, 484 Mass. 1029, 143 N.E.3d 408 (2020).
While we do not require a crisis before we take action,
we have a strong preference for a better understanding
as to whether other pretrial detainees are similarly situ-
ated as the defendant claims to be.
The petition for certification is dismissed.
1
Practice Book § 78a-1 provides: ‘‘Any accused person or the state,
aggrieved by an order of the Superior Court concerning release, may petition
the Appellate Court for review of such order. Any such petition shall have
precedence over any other matter before the Appellate Court and any hearing
ordered by the court shall be held expeditiously with reasonable notice.
‘‘Petitions for review of bail must conform to the requirements for motions
for review set forth in Section 66-6 and are subject to transfer to the Supreme
Court pursuant to Section 65-3.’’
2
General Statutes § 54-63g provides: ‘‘Any accused person or the state,
aggrieved by an order of the Superior Court concerning release, may petition
the Appellate Court for review of such order. Any such petition shall have
precedence over any other matter before said Appellate Court and any
hearing shall be heard expeditiously with reasonable notice.’’
3
There may be other procedural approaches that would lead to review
of this claim. For example, General Statutes § 51-199 (c) authorizes us to
transfer to our court ‘‘a cause in the Appellate Court,’’ which includes a
motion for review of a bail decision initially brought in the Appellate Court
pursuant to § 54-63g. See State v. McCahill, supra, 261 Conn. 503 (‘‘our
transfer authority by way of § 51-199 (c) is not limited to a formal appeal,
but encompasses causes’’). General Statutes § 52-265a provides another
route by which this court could review a trial court’s denial of a bail modifica-
tion request. Section 52-265a (a) permits ‘‘any party to an action who is
aggrieved by an order or decision of the Superior Court in an action which
involves a matter of substantial public interest and in which delay may work
a substantial injustice, [to] appeal under this section from the order or
decision to the Supreme Court within two weeks from the date of the
issuance of the order or decision.’’ This court’s decision in Ayala followed
just that procedure. See State v. Ayala, supra, 222 Conn. 341. In addition, the
conditions of the defendant’s confinement may conceivably be challenged
in a separate proceeding through a petition for a writ of habeas corpus. See
General Statutes § 52-466. Finally, our long-standing jurisprudence governing
appellate jurisdiction also provides a potential avenue for this court to
exercise review over a bail determination, because our precedent allows
us to treat an interlocutory order as a final judgment for purposes of appeal
when the order ‘‘so concludes the rights of the parties that further proceed-
ings cannot affect them.’’ (Internal quotation marks omitted.) Sena v. Ameri-
can Medical Response of Connecticut, Inc., 333 Conn. 30, 41, 213 A.3d 1110(2019), quoting State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). This
doctrine, which is embodied in the second prong of Curcio, ‘‘focuses on
the nature of the right involved.’’ (Internal quotation marks omitted.) Sena
v. American Medical Response of Connecticut, Inc., supra, 41. We offer no
opinion as to whether any of these potential procedural opportunities would
succeed in the Appellate Court or in the trial courts of this state. We elaborate
on our dismissal of the petition before us simply to state that the posture
of this particular case impedes our direct review. Other cases might reach
a different outcome.
4
The record is silent as to whether the trial court was provided with any
information about the relevant conditions at the correctional facility where
the defendant was being held, and the status of COVID-19 within that facility.
In addition, although the record does not reflect that the trial court expressly
considered the potential risks of the COVID-19 pandemic in denying the
motion for bond modification, it is hard to imagine that trial judges operating
in courtrooms and conditions designed to address the risk of contagion
would not take such considerations into account in making decisions relating
to bond or bail.