State v. Damato-Kushel (2017) : Victim's Rights

STATE v. DAMATO-KUSHEL

327 Conn. 173, 173 A.3d 357 (Conn. 2017)

Supreme Court of Connecticut
173 A.3d 357, 327 Conn. 173
SC19872
2017-12-05

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. *
The listing of justices reflects their seniority status on this court as of the date of oral argument.

PALMER, J.

The victim 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. In that criminal case, Damato-Kushel is charged with various offenses arising out of her alleged sexual misconduct involving the victim commencing when Damato-Kushel was a teacher’s aide in the school system of the town of Stratford and when the victim was a fourteen-year-old student attending a school in that town. The victim 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. 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, 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 victim from attending them. We agree.

The following facts and procedural history are undisputed. On the basis of allegations lodged by the victim, 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 victim.

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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 victim 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, 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 victim the right to do so. In response, Damato-Kushel argued that, contrary to the contentions of the victim, 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 victim’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. 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.” 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.

Damato-Kushel and the Superior Court also assert that the victim 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 victim was, in fact, a “victim” for purposes of the
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victim’s rights amendment, and, therefore, the victim never had any constitutional rights that might be “injuriously affected” by the actions of the trial court. We disagree with this contention.

As the victim observes, the issuance of an arrest warrant requires a finding of probable cause that a crime was committed by a particular defendant. It is undisputed, moreover, that, in the present case, the arrest warrant application clearly alleged that Damato-Kushel’s criminal misconduct was perpetrated against the victim specifically. In such circumstances, we agree with the victim 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. Furthermore, 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 because, in those circumstances, the jury must decide whether the complainant was, in fact, the victim of a crime perpetrated by the defendant.

We turn now to the merits of the victim’s claims. Amendment XXIX(b) of the Connecticut constitution provides in relevant part that, “in all criminal prosecutions, a victim shall have 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 Damato-Kushel and the Superior Court that the victim 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 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, “an 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.” The modifier “court” therefore might reasonably distinguish proceedings undertaken pursuant to the authority of a court of law, such as disposition conferences, from those undertaken by an agency or other tribunal. On the other hand, “court proceedings” also may reasonably be construed to limit the “acts done by authority of a court of law” 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.

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. This court has previously determined, however, in State v. Lopez (Conn. 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 state’s attorney, and defense counsel,” in which plea negotiations were conducted. We rejected Lopez’ claim, explaining that, “although 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. Furthermore, Practice Book § 44-7 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.” 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 victim makes no claim that he has a statutory or constitutional right independent of the victim’s rights amendment to attend such a conference.

By contrast, a victim’s right to participate meaningfully in the plea bargaining process is safeguarded by other provisions of the victim’s rights amendment—in particular, “the right to communicate with the prosecution” under amendment XXIX(b)(6), “the right to make a statement to the court” regarding any plea agreement prior to its acceptance under amendment XXIX(b)(7), and the broader, more encompassing right under amendment XXIX(b) “to be treated with fairness and respect throughout the criminal justice process.” To the extent that the victim suggests that state’s attorneys cannot be relied on to adequately communicate the information necessary for a victim to comment on the appropriateness of any plea bargain, we reject that assertion. We have every reason to believe that state’s attorneys will fully discharge their constitutional, statutory, and professional responsibilities to victims.

We therefore conclude that in-chambers, off-the-record disposition conferences between the prosecuting attorney, defense counsel, and the presiding judge are not “court proceedings the accused has the right to attend” under amendment XXIX(b)(5). Consequently, neither the victim nor his authorized representative has a right to attend them.

(The full opinion follows, but there is no special need to read it.)