author: Callahan, J. Berdon, J.,

text:
    Murray R. Gold v. Warden, State Prison
    (14296)
    Peters, C. J., Shea, Callahan, Covello and Berdon, Js.
    Argued January 15
    decision released June 9, 1992

      James A. Killen, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Marcia Smith, assistant state’s attorney, for the appellant (respondent).

      Louis Niter, pro hac vice, with whom were William Kunstler, pro hac vice, Paul Martinson, pro hac vice, Victor M. Ferrante and, on the brief, Timothy C. Moynahan, for the appellee (petitioner).
   Callahan, J.

This is an appeal by the respondent warden from the granting of a writ of habeas corpus and a new trial to the petitioner, Murray R. Gold.

On July 24,1986, at the conclusion of his fourth trial, the petitioner was found guilty by a jury of two counts of the crime of murder. Subsequently, on August 29, 1986, he was sentenced by the trial court to two concurrent terms of twenty-five years to life imprisonment. The petitioner refused to appeal. The charges for which the petitioner was convicted arose from the stabbing deaths of his former father-in-law, Irving Pasternak, and his former mother-in-law, Rhoda Pasternak, in their Waterbury home in 1974.

On March 11,1991, after a hearing the habeas court concluded, in a written memorandum of decision, that the petitioner had not been legally competent in 1986, when he was tried for the fourth time for the Pasternak murders. The habeas court also concluded that the petitioner had not been afforded effective assistance of counsel. The court reached the latter conclusion apparently because of its finding that defense counsel had failed to take sufficient care to monitor and evaluate the petitioner’s mental health during the course of the trial. Because it found that the petitioner was incompetent at the time of his 1986 trial and that he had not had effective assistance of counsel, the habeas court granted the petitioner’s writ and ordered a new trial. Whether the habeas court was correct on either stated ground depends upon whether it reached a proper conclusion that the petitioner was incompetent at the time that he was tried.

The respondent warden claims that the habeas court improperly: (1) concluded that the petitioner had established, under the proper standard of collateral review, that he was incompetent during his trial; (2) concluded that the petitioner had not been provided effective assistance of counsel; (3) refused to allow the judge who had presided at the petitioner’s trial in 1986 to testify concerning his observations of the petitioner’s demeanor; and (4) ordered a competency evaluation under General Statutes § 54-56d to determine whether the petitioner was competent to stand trial for the fifth time. We agree with the respondent’s third claim and conclude that under the circumstances of this case the habeas court improperly excluded the trial judge’s testimony. Because that conclusion requires that we reverse the decision of the habeas court and order a new hearing, it is not necessary that we address the respondent’s other claims.

The following sequence of events is relevant. After the petitioner’s third trial was aborted on January 22, 1985, James R. Merikangas, a psychiatrist and neurologist, examined the petitioner and informed the court by letter dated February 4, 1985, that the petitioner was incompetent to stand trial at that time. Thereafter, on Merikangas’ recommendation, the petitioner was sent to Whiting Forensic Institute for treatment, observation and evaluation. The petitioner remained at Whiting from February, 1985, until November 8, 1985. In February, May, August and October, 1985, he was evaluated for competency by a psychiatric team consisting of a psychiatrist, Earle L. Biassey, and a clinical psychologist, and a social worker. After the October, 1985 evaluation, the petitioner was determined by the psychiatric team to be competent to stand trial. Subsequent to being found competent, the petitioner was transferred from Whiting to the New Haven correctional center. On May 20, 1986, just prior to the commencement of jury selection for his fourth trial, at the request of Judge William J. Lavery, who was to preside at the trial, the petitioner was reevaluated by Merikangas and was found to be competent at that time. Thereafter, the petitioner was tried, convicted and sentenced.

At the habeas corpus hearing the petitioner called as a witness Walter Borden, a psychiatrist, who had examined the petitioner for approximately two hours on December 21,1990, more than four years after the petitioner was tried and sentenced in 1986. Based on that examination, his review of the petitioner’s medical records, and the court records from the petitioner’s third and fourth trials, Borden’s opinion was that the petitioner had not been competent during his fourth trial.

Also called by the petitioner as a witness at the habeas hearing was Attorney John Williams. Williams had represented the petitioner at his third trial until, midway through the trial, the petitioner had discharged him and a mistrial had been declared. Williams testified that one day, during the petitioner’s fourth trial, when he had happened to be in Waterbury on other business, he had passed through the courtroom where the petitioner was being tried and had observed the petitioner and his attorney. He stated that at that time he had had an opportunity to view the petitioner for a few minutes while court was in session, the jury was present, and evidence was being taken. In its memorandum of decision the habeas court stated that Williams testified: “ ‘I was struck by the fact that [Gold] seemed to be in a trance. He was staring straight ahead. He wasn’t reacting to anything going on in the courtroom. He did not even react to my presence in the courtroom. . . . His eyes were open but he wasn’t moving. He was simply occupying a chair.’ ”

Further, at the habeas hearing, a transcript from the petitioner’s fourth trial that Borden referred to in forming his opinion was admitted. That transcript evidenced the following colloquy in the courtroom on July 8,1986, while defense counsel was conducting a voir dire examination of an expert witness outside the presence of the jury.

“Mr. Scanlon [prosecutor]: If your Honor please, I think that the defendant’s confrontation rights are being abandoned at this moment. I point that out to the court.

“The Court: Excuse me?

“Mr. Scanlon: I think his confrontation rights are being abandoned voluntarily by the defendant. I did want to point this out to Your Honor.

“The Court: Why?

“Mr. Scanlon: He seems to be sleeping.

“Mr. Serignese [assistant defense attorney]: No, he is not.

“Mr. Scanlon: He seems to be sleeping.

“Mr. Serignese: He’s just resting his eyes. He is not sleeping.

“The Court: No, the record will note that he, the defendant, is awake.

“Mr. Scanlon: His eyes are closed. Excuse me.

“The Court: Proceed.”

The habeas court, in its memorandum of decision, appears to have placed considerable weight not only on Borden’s expert testimony, but also on Williams’ recitation of what he had seen during his brief observation of the petitioner, and Scanlon’s viewing of the petitioner when the petitioner’s eyes were closed. Lay testimony concerning the petitioner’s demeanor during his trial, therefore, seems to have played an influential role in the habeas court’s conclusion that the petitioner was incompetent when he was tried in 1986. That is readily understandable. Borden’s examination, as previously noted, took place more than four years after the trial. See Drope v. Missouri, 420 U.S. 162, 183, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975) (inherent difficulties in nunc pro tunc determination of defendant’s mental competency at trial that took place six years earlier); Pate v. Robinson, 383 U.S. 375, 387, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966) (difficult to determine retrospectively an accused’s competence to stand trial); State v. Manfredi, 213 Conn. 500, 511, 569 A.2d 506, cert. denied, 498 U.S. 818, 111 S. Ct. 62, 112 L. Ed. 2d 37 (1990) (if state forced to wait nearly one year to conduct mental status examination, it would have little or no persuasive weight on issue of defendant’s mental condition at time of trial). Something, therefore, was required to link the findings of Borden’s 1990 examination with the petitioner’s mental condition at the time of his trial in 1986. A significant portion of that linkage was clearly forged for the habeas court by Williams’ testimony concerning his observations and Scanlon’s colloquy with the trial court.

To counter Williams’ testimony and Scanlon’s comments, the respondent sought to call, as a witness, Judge Lavery, the presiding judge at the petitioner’s fourth trial. The respondent represented to the habeas court that he desired to call Judge Lavery only to testify as to his observations of the petitioner’s demeanor during the course of the trial. The respondent assured the habeas court that he would confine his questions of Judge Lavery to his observations and would make no effort to elicit testimony concerning the judge’s decision-making process. The petitioner filed a motion in limine, moving that Judge Lavery be precluded from testifying. The habeas court granted the petitioner’s motion. In making its ruling the habeas court stated: “The court concludes that although the state may call the judge and he will testify as to what he directly observed in the courtroom, he would then become subject to cross-examination concerning his ability to observe, how he arrived at certain conclusions from his observations, and, therefore his mental process would be delved into upon cross-examination.”

We conclude that under the circumstances of this case the habeas court abused its discretion in excluding Judge Lavery’s testimony.

A judge is not disqualified and is a competent witness to testify at a new trial or collateral proceeding to observed facts that occurred before him or her at a former trial or proceeding. Woodward v. Waterbury, 113 Conn. 457, 465, 155 A. 825 (1931); Bishop v. New Haven, 82 Conn. 51, 53, 59, 72 A. 646 (1909); Gorham v. New Haven, 79 Conn. 670, 675, 66 A. 505 (1907); People v. Tippett, 733 P.2d 1183, 1193 (Colo. 1987); People v. Carpus, 2 App. Div. 2d 653, 152 N.Y.S.2d 27 (1956); Matter of Sheen, 145 Misc. 2d 920, 923, 548 N.Y.S.2d 618 (1989); People v. Bevilacqua, 170 N.Y.S.2d 423, 429, rev’d on other grounds, 5 N.Y.2d 867, 155 N.E.2d 865, 182 N.Y.S.2d 18 (1958); People v. McDermott, 40 N.Y.S.2d 456, 457 (1943); Willoughby v. Oklahoma City, 706 P.2d 883, 888 (Okla. 1985); Leighton v. Henderson, 220 Tenn. 91, 99, 414 S.W.2d 419 (1967); State v. Kelly, 312 A.2d 906, 907 (Vt. 1973); C. Tait & J. LaPlante, Connecticut Evidence § 7.8; C. McCormick, Evidence (3d Ed.) § 68; 3 B. Jones, Evidence (6th Ed.) § 20.55, p. 722; 81 Am. Jur. 2d., Witnesses § 101; 97 C.J.S., Witnesses § 105; annot., 86 A.L.R.3d 633, 643.

We do not encourage the calling of a judge as a witness in subsequent proceedings in a case over which the judge presided. Woodward v. Waterbury, supra, 465. Where there is a compelling need for a judge’s testimony as to observed facts in order that justice be done, however, a judge is a competent witness and should not be precluded from testifying. Id. In this case, we believe that a compelling need existed. The habeas court had in evidence lay observations of the petitioner’s behavior at trial in the form of Williams’ testimony and the transcript of Scanlon’s remarks, and relied on that evidence in conjunction with Borden’s testimony in arriving at its conclusion that the petitioner was incompetent at the time of trial. Neither Williams nor Scanlon, however, was in as advantageous a position to observe the petitioner’s conduct during trial as was the judge. As the trial judge, Judge Lavery’s location in the courtroom afforded him a unique opportunity to observe the petitioner’s demeanor throughout the entire trial. Further, his duty to assure the petitioner a fair trial imposed upon him an obligation to scrutinize the petitioner’s behavior closely. Drope v. Missouri, supra, 181; State v. Watson, 198 Conn. 598, 605, 504 A.2d 497 (1986). It stands to reason that the trial judge’s prolonged observation of the petitioner’s demeanor over the course of the entire trial would be highly significant in assessing the petitioner’s competency.

Judge Lavery’s testimony concerning his observations of the petitioner might well have undercut the probative force of Williams’ testimony and Scanlon’s comments. That, in turn, may have so attenuated the value of Borden’s opinion as to decree a different result. See State v. Zdanis, 173 Conn. 189, 196, 377 A.2d 275 (1977); State v. Martin, 170 Conn. 161, 167, 365 A.2d 104 (1976). We conclude that the exclusion of Judge Lavery’s testimony deprived the respondent of a fair opportunity to oppose the petition and, despite the latitude accorded the habeas court, was under the circumstances an abuse of discretion by the court that requires a new hearing. Reynolds v. Vroom, 132 Conn. 53, 57, 42 A.2d 336 (1945).

The judgment of the habeas court is reversed and the matter is remanded to that court for a new hearing on the habeas corpus petition.

In this opinion Peters, C. J., Shea and Covello, Js., concurred.

Berdon, J.,

dissenting. The majority reverses the habeas court on the sole ground that the court abused its discretion in not allowing the respondent, the warden of the state prison (state), to call the trial judge, Judge William J. Lavery, to testify as to his observations of the petitioner, Murray Gold. The state sought the trial judge’s testimony as evidence to establish that the petitioner was competent to stand trial a fourth time for the murder of his former in-laws.

An accused is not competent to stand trial “if he is unable to understand the proceedings against him or to assist in his own defense.” General Statutes § 54-56d (a). At the habeas hearing, the petitioner claimed that he was incompetent to stand trial for a fourth time because he was unable to assist in his own defense. “Of the objectives sought to be achieved by a determination of a person’s sanity for purposes of standing trial, historically the foremost has been said to be the protection of the accuracy of the adjudication involved; the competency rule . . . is claimed to have been designed to ensure that the defendant is able to provide his counsel with the data necessary or relevant to the structuring of a defense.” State v. Pastet, 169 Conn. 13, 26, 363 A.2d 41, cert. denied, 423 U.S. 937, 96 S. Ct. 297, 46 L. Ed. 2d 270 (1975). According to the majority, the trial judge’s testimony regarding his observations of the petitioner’s demeanor and alertness during the course of the trial was necessary on the issue of whether the petitioner was competent to aid in his own defense.

The majority relies in part on Woodward v. Waterbury, 113 Conn. 457, 155 A. 825 (1931), for its conclusion that it was improper to exclude the trial judge’s testimony. The majority, however, ignores an important rule set forth in Woodward, to wit: “Counsel should never summon [the trial judge to testify] if the rights of their clients can be otherwise protected.” Id., 465. Since other witnesses for the state testified, and could have testified as to the petitioner’s demeanor and alertness during the trial, there surely was no “compelling need” for Judge Lavery’s testimony. This same evidence was or could have been obtained from other sources, for example, Walter Scanlon, the assistant state’s attorney, William Collins, the petitioner’s attorney at his fourth trial, Nicholas Serignese, cocounsel with Collins, any of the other attorneys present, or any of the courtroom personnel, such as the clerk, court reporter or sheriff.

Furthermore, the inclusion or exclusion of evidence by the trial court is within the court’s broad discretion. Recently, in State v. Steiger, 218 Conn. 349, 373, 590 A.2d 408 (1991), with Justice Callahan writing for the unanimous court, this court held that “[b]ecause the admissibility of the [evidence] was an evidentiary question, we cannot reverse the decision of the three judge panel to admit the [evidence] unless we conclude that the panel abused its discretion or committed a clear error involving a misconception of the law.” Assuming that the habeas court abused its discretion in not allowing the trial judge to testify, the majority does not observe the established standard of review that the appellant bears the burden of establishing, not only that the trial court’s ruling was erroneous, but also that the ruling was probably harmful. “Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.” (Emphasis added; internal quotation marks omitted.) State v. Alvarez, 216 Conn. 301, 306, 579 A.2d 515 (1990); see also State v. Brown, 199 Conn. 14, 25, 505 A.2d 690 (1986). Indeed, as Justice Callahan wrote for a unanimous court in State v. Jackson, 198 Conn. 314, 319, 502 A.2d 865 (1986), “[e]very reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. Reversal is required only when an injustice appears to have occurred.” (Internal quotation marks omitted.)

Although the state established the purpose for calling the trial judge, which was to prove that the petitioner was, in fact, alert and could have been of assistance to his own defense, the state failed to prove that the exclusion of his testimony was harmful. First, the state already had on the record Judge Lavery’s observation that the petitioner was alert. When Scan-Ion told the trial judge that he thought the petitioner was sleeping, the trial judge replied: “No, the record will note that he, the defendant, is awake.”

Second, the habeas court had the benefit of the testimony of Collins on the demeanor and alertness of the petitioner during the trial. Collins testified that he “knew that [the petitioner] was taking a level of medication sufficient to assist . . . in his defense, and [that the petitioner] continuously knew at that time the nature of the proceedings against him.” Collins also testified that he had “a good professional, close relationship” with the petitioner throughout the trial. He stated that there was never a time when he believed that the petitioner was unaware of the court proceedings. Collins asserted that the petitioner actively participated in the jury selection process and that prior to trial, the petitioner discussed defense strategy with Collins.

Therefore, the trial judge’s testimony would only have been repetitive and cumulative of the testimony that the petitioner had been alert diming the trial. In sustaining convictions, we have long held that the erroneous exclusion of testimony that is merely repetitious or cumulative is not harmful error. See State v. Person, 215 Conn. 653, 664-65, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991) (erroneous exclusion of cumulative evidence did not have a prejudicial impact on the outcome of the trial); State v. Robinson, 213 Conn. 243, 260, 567 A.2d 1173 (1989) (erroneous inclusion of cumulative evidence was not harmful); State v. Jones, 132 Conn. 682, 683, 47 A.2d 185 (1946) (it was within the trial court’s discretion to refuse to permit questioning that had been “asked and ruled upon on several occasions”).

Third, Scanlon was called by the petitioner to testify at the habeas hearing. Scanlon testified that, in his opinion, no “gross injustice” had been done to the petitioner. Because of Scanlon’s continuing presence throughout the trial and his close proximity to the petitioner, the state could have taken the opportunity during its cross-examination to question Scanlon further on his observations as to the petitioner’s alertness.

Finally, it is clear to me that the habeas court did not rely upon Attorney John Williams’ momentary observation of the petitioner, but rather upon the substantial professional testimony of Dr. Walter Borden, a prominent psychiatrist, who, during his years of practice, has been involved in at least fifteen cases before this court. Dr. Borden’s testimony must be reviewed within the context of the facts of this case, which are not contested. He testified that the petitioner had a history of treatment for mental illness that dates back to 1974; that between January 22, 1985, and May 20, 1986, the petitioner had been found incompetent to stand trial by state doctors at three competency hearings ordered by the court; and that the petitioner was discharged from the state’s Whiting Forensic Institute (Whiting) in late 1985 with the warning that, although he was then competent, his mental condition had not been “completely ameliorated.”

Dr. Borden concluded that at the time of the fourth trial, the petitioner was not competent to assist in his defense. There were two principal bases for his conclusion. The first basis was that the petitioner’s psychosis rendered him unable to work with counsel. He determined that the petitioner suffered from schizophrenia with depression and paranoia. He testified that as “[p]art of his paranoia, [the petitioner] had paranoid delusions of persecution. Hallucinations in that regard [have] involved the legal system, judges, lawyers [and] his lawyers.”

The petitioner’s background is important to a full understanding of his paranoia and how it affected his competency to assist in his own defense. The petitioner is a survivor of the German holocaust and underlying his paranoia was his confinement in several concentration camps as a child together with his father, mother and sister. When the petitioner was eleven years old, his family escaped from the concentration camp at Auschwitz with the assistance of English rescuers. The petitioner was responsible for his sister, who was eight years old, but during the confusion, she was left behind. The rescuers forbade the petitioner’s family from searching for the girl for fear that they would be discovered by the German guards and executed. As a result of his time in the camps and this traumatic experience, the petitioner developed a syndrome known as survivors guilt, which is particular to concentration camp survivors, hostages or persons who have survived natural disasters. This syndrome manifests itself as massive grief. Dr. Borden pointed out that the petitioner’s “condition was compounded by the fact that his sister [had] perished and ... in his growing up, [he] was feeling responsible for his mother’s sadness.” He testified that “[m]uch of his distrust, which is clearly paranoid, in a way makes sense, if you look at the concentration camp and what the adults — and especially [what] the children experienced there. [The petitioner] would not trust a lawyer, certainly, and he was incompetent; and on a long-term basis, he wouldn’t trust anybody, nor would he trust doctors.”

Dr. Borden testified that the petitioner has denied certain aspects of his life as a result of his psychotic condition. He relayed that the petitioner denied his concentration camp experience, denied that he is Jewish, denied that his parents were Jewish, and denied that he had a sister who died. He stated that this kind of denial is called “psychotic denial.” He testified that this is “denial of very basic issues of reality and reality about himself. [The petitioner] had to keep that [reality] entirely out of his awareness.” According to Dr. Borden, these paranoid delusions came out in bizarre ways and extended to his attorneys. He testified that the petitioner considered all his lawyers to be crazy. He reported that the petitioner said that “he didn’t understand [the lawyers]; they didn’t understand him.” Dr. Borden concluded that the petitioner was not able to work effectively with his lawyers in his own defense.

The second principal basis for Dr. Borden’s conclusion was the high dose of medication that the state had prescribed for the petitioner. Although the Whiting diagnostic team cautioned that the petitioner’s mental condition required “some form of continued treatment in order to maintain his competency,” the only treatment for his psychosis was an increased daily dose of Navane from the fifteen milligrams prescribed for him while at Whiting, to twenty milligrams given to him at the correctional facility at New Haven. Navane is a major tranquilizer and it is used in schizophrenia treatment to quiet patients and help make them manageable. Dr. Borden testified that the dosage was increased without authorization from Whiting or from the court. This higher dosage made the petitioner more apathetic, somnolent and unresponsive. He further testified that the “twenty milligrams for a maintenance dosage of Navane is high. It would tranquilize him no doubt. It would control his behavior. It reflected in the records and my examination, [that it] would interfere with his comprehension, with his awareness, with his ability to respond. It certainly would help him behave in the courtroom if sitting and not creating a disturbance is what is desired and that’s all.” Dr. Borden concluded that as a result of this over medication, the petitioner’s ability to participate in his own defense was impaired.

Our law is clear that “[t]he conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1; see Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966). This rule ‘imposes a constitutional obligation, [on the trial court], to undertake an independent judicial inquiry, in appropriate circumstances, into a defendant’s competency to stand trial . . . .’ State v. Watson, [198 Conn. 598, 605, 504 A.2d 497 (1986)]; see Drope v. Missouri, 420 U.S. 162, 180, 95 S. Ct. 896, 43 L. Ed. 2d 103 (1975); State v. DeAngelis, 200 Conn. 224, 242, 511 A.2d 310 (1986). ‘Even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial’ Drope v. Missouri, supra, 181. This constitutional mandate is codified in General Statutes § 54-56d (a), which provides that ‘[a] defendant shall not be tried, convicted or sentenced while he is not competent.’ ” State v. Gonzalez, 205 Conn. 673, 686-87, 535 A.2d 345 (1987).

We have made it clear, when upholding a conviction, that we will “not presume error; the trial court’s ruling is entitled to the reasonable presumption that it is correct unless the party challenging the ruling has satisfied its burden demonstrating the contrary.” State v. Crumpton, 202 Conn. 224, 231, 520 A.2d 226 (1987). That presumption, however, is not present in this case. Indeed, we have continuously ruled that if the trier of fact has other evidence on the issue, then that weighs heavily against the error being harmful. In State v. Silveira, 198 Conn. 454, 503 A.2d 599 (1986), we held that the exclusion of relevant testimony about the defendant’s state of mind was not harmful. “In light of the additional evidence pertaining to the defendant’s state of mind that was placed before the jury, we do not believe that the erroneous exclusions of evidence deprived the defendant of either his state constitutional right to testify or his federal constitutional right to present an effective defense. Because the erroneous exclusions of evidence do not amount to a constitutional violation, it is the defendant’s burden to show that the errors were harmful. State v. Brown, 187 Conn. 602, 611, 447 A.2d 734 (1982); State v. Gordon, 185 Conn. 402, 419, 441 A.2d 119 (1981) [cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982)]; State v. Ruth, [181 Conn. 187, 196-97, 435 A.2d 3 (1980)]. In this case we find that this burden has not been met.” Id., 479.

It is particularly troubling that I cannot find anywhere in the majority’s analysis what it uses as the standard of review. From what I can detect from the majority opinion, there is a double standard of review, one for claims of error raised by a defendant and one for reviewing the same claims raised by the state. Furthermore, the majority greatly diminishes the factfinding jurisdiction of the habeas court. The majority concludes that the habeas court’s ruling was pivoted o,n Williams’ testimony, which was supplied by his “brief observation” of the petitioner during a trial that began on June 24,1986, and concluded one month later on July 24,1986. To assume that the mere mention of Williams’ observation in the habeas court’s memorandum of decision must be pivotal is contrary to our law. It cannot be said that the habeas court’s conclusion “was clearly erroneous.” Myers v. Manson, 192 Conn. 383, 391, 472 A.2d 759 (1984).

I agree with the habeas court’s well reasoned decision that during the fourth trial the petitioner was legally incompetent because he could not assist in his own defense. Accordingly, the petitioner’s conviction violated federal and state constitutional law and the statutory law of this state. The petitioner is entitled to a new trial. I dissent.

       The petitioner’s first trial resulted in a hung jury and a mistrial. The second culminated in a conviction that was overturned on appeal. State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). The third trial ended in a mistrial when the petitioner discharged his attorney in open court, before the jury, midway through the proceedings.

       The circumstances relating to those murders are related in some detail in State v. Gold, 180 Conn. 619, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980). It is not necessary that they be repeated here.

       “The conviction of an accused person who is not legally competent to stand trial violates the due process of law guaranteed by the state and federal constitutions. Conn. Const., art. I, § 8; U.S. Const., amend. XIV, § 1; see Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966).” State v. Gonzalez, 205 Conn. 673, 686, 535 A.2d 345 (1987); see also General Statutes § 54-56d.

       The petitioner’s claim is that he was legally incompetent throughout all the criminal proceedings in 1986. That is, he claims that he was incompetent during his trial, sentencing, conviction and subsequent refusal to appeal. Although we will refer only to the trial, our opinion encompasses the entire proceedings.

       We also decline to consider the petitioner’s request that we review the habeas court’s finding that there was sufficient evidence presented at trial to convict him. The petitioner filed neither a cross appeal under Practice Book § 4005, nor a statement of alternative grounds to affirm the habeas court’s judgment under Practice Book § 4013, which would allow him to reassert on appeal his challenge to the jury’s verdict.

       Merikangas testified that on May 20, 1986, he found the petitioner to be “ ‘alert, oriented and cooperative’ ” and concluded that the petitioner’s condition was “ ‘in remission’ ” at that time. The habeas court apparently agreed because it found that it was not until “some time between May 20, 1986, and July 24,1986, [that] the petitioner became legally incompetent.”

       The habeas court’s version is not an entirely accurate quote of Williams’ testimony but it conveys its import.

       The habeas court quoted the entire exchange in its memorandum of decision, with slightly different wording.

       Earle Biassey, a psychiatrist connected with the Whiting Forensic Institute, who had examined the defendant, testified that a psychiatrist would be “standing on thin ice” if he or she tried to venture an opinion as to competency based upon an ex post facto examination of records. He also testified that he could not venture an opinion as to Gold’s competency at the time of trial if he did not see him at that time.

       Judge Lavery had been subpoenaed by the respondent and was available and was present in the courtroom on February 27, 1991.

       It is true that an examination of the mental processes of a judge in arriving at a judicial decision should not be permitted. United States v. Morgan, 313 U.S. 409, 422, 61 S. Ct. 999, 85 L. Ed. 1429 (1941); Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir. 1982) (en banc), rev’d on other grounds, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Henderson v. Department of Motor Vehicles, 202 Conn. 453, 459, 521 A.2d 1040 (1987). The avowed purpose, however, of Judge Lavery’s contemplated testimony was to elicit his observations of the petitioner’s behavior during the 1986 trial, not his mental processes in arriving at judicial decisions. If the questioning on cross-examination transgressed the line between factual observations and mental processes, it was the habeas judge’s obligation to disallow the questioning. As the respondent says in his brief, it would be inequitable to refuse to allow him “to call a witness for a proper purpose because [the] petitioner may attempt to question him about inadmissible matters.”

       Indeed, notwithstanding the assertion of the majority that the testimony was also necessary to “undercut the probative force of . . . Scanlon’s comments,” in its brief the state’s only claim of prejudice from the habeas court’s exclusion of Judge Lavery’s testimony is the following: “The court’s refusal to permit [the] respondent to call Judge Lavery to testify as to his observations was particularly prejudicial, given the habeas court’s undue reliance on the momentary observation by Attorney [John] Williams. Judge Lavery observed the petitioner on a daily basis for a period of months during the fourth trial and would have provided crucial evidence to undercut Attorney Williams’ testimony, which the habeas court obviously considered significant.
      “By refusing to allow [the] respondent a fair opportunity to rebut evidence heavily relied upon in its decision, the court committed harmful error. State v. Torres, 210 Conn. 631, 640-645 [556 A.2d 1013] (1989). Accordingly, a new habeas proceeding should be ordered.”

       See the majority opinion for the complete colloquy between the trial court and assistant state’s attorney Walter Scanlon.

       The report of the diagnostic team at Whiting stated, in part, the following: “We wish to emphasize that this should not be interpreted to mean that [the petitioner’s] mental condition has been completely ameliorated. He suffers from a mental condition, in our opinion, that will require some form of continued treatment in order to maintain his competency over the course of the extended future. . . . Progress in actually obtaining counsel is uncertain due to practical inerts connected with his confinement here and his own financial circumstances. Initiative has been taken in the direction of obtaining counsel, according to our understanding, and a continued program of psychiatric treatment is now advised as a necessary adjunct to the maintenance of his competency.”

       See footnote 3, supra.

       Dr. Borden testified that as a result of the high dose of Navane administered by the state, the petitioner “had no idea of what was going on. In my examination of him, what he told me was he doesn’t understand why they didn’t bring in the testimony having to do with his shoes, and it was at that point that he was pointed out to be unresponsive, that the testimony had to do with that.
      “He told me, in my examination of him, that he was kind of unclear about the trial. He thought it was going to go on, and all of a sudden, it was over. And he said he never got a chance to explain, or to question, or to say-he thought that would come up later about the evidence which he was convinced would exonerate him, and he said all of a sudden, it was over.
      “That has to do with the medication, and it does really appear that he was over medicated. I have really more than doubts about that. Why was [it] increased? Why was it increased from fifteen milligrams to twenty milligrams? I mean, I know you don’t increase medication like that in that amount unless there’s a deteriorated mental condition; unless there’s something going on. The timing is such, that it would [be] apt to cause over-sedation. These medications, a medication like Navane, when the dosage is increased, it’s apt to cause sedation for a period of time until there’s— well, at some level, it can just cause over-sedation and apathy, but that’s most apt to occur with a recent change. If you’re upping the dosage, you’re more apt to get sedation in the immediate period after the change—and I’m not talking about hours; I’m talking about days, weeks.”

       Indeed, it appears contrary to the state’s position. The state asserted in its brief: “Most of Williams’ testimony involved his relationship with [the] petitioner during the third trial. [The subject matter of the present case is the petitioner's fourth trial.] . . . Williams also testified that, one day during [the] petitioner’s fourth trial, he ‘passed through the courtroom briefly and . . . observed Mr. Gold and his counsel.’ ... As he passed through the courtroom, Williams tried not to be ‘disruptive.’... He testified that [the] petitioner did not appear to be ‘reacting’ to anything going on in the courtroom, including Williams’ presence. ... He stated that [the] petitioner appeared ‘very different from the way he had been during the third trial . . . ’ and that he observed [the] petitioner ‘staring straight ahead.’ . . . Williams testified that he spent‘probably less than five minutes’ passing through the courtroom and that he did not sit down in the courtroom at any point. ...”


source: Caselaw Access Project

author: Peters, C. J. Berdon, J.,

license: Public Domain

text:
    State of Connecticut v. Enrique Ayala
    (14379)
    Peters, C. J., Callahan, Covello, Borden and Berdon, Js.

      Argued February 11
    decision released June 9, 1992

      Michael A. Georgetti, for the appellant (defendant).

      Judith Rossi, assistant state’s attorney, with whom were Kevin Murphy, deputy assistant state’s attorney, and, on the brief, JohnM. Bailey, state’s attorney, and John 0 Reilly, assistant state’s attorney, for the appellee (state).

      Paul F. Thomas and Shelley R. Sadin filed a brief for the Connecticut Civil Liberties Union Foundation as amicus curiae.
   Peters, C. J.

The principal issue in this appeal is whether, in the circumstances of this case, the revocation of the defendant’s pretrial release from confinement pursuant to General Statutes § 54-64f violated the right of bail provision of article first, § 8 of the Connecticut constitution. The defendant, Enrique Ayala, while released on a $25,000 surety bond following his arrest on May 28,1991, was arrested on June 12,1991, and again on June 14,1991. Upon a motion by the state to revoke the defendant’s release, the trial court, Barry, J., after an evidentiary hearing, revoked the defendant’s release on the basis that the state had established, by clear and convincing evidence, that another person would be endangered while the defendant was on release, and that there was probable cause to believe that the defendant had committed a federal, state or local crime while on release in violation of General Statutes § 54-64e. In response to the defendant’s petition for review, pursuant to General Statutes § 54-63g, the Appellate Court granted review but denied the relief requested. This court thereafter granted the defendant’s petition for certification to appeal. State v. Ayala, 220 Conn. 922, 598 A.2d 365 (1991). We conclude that the order of the trial court should be affirmed.

The record discloses the following undisputed facts. Subsequent to the defendant’s arraignment on June 5, 1991, on charges that included burglary in the first degree in violation of General Statutes § 53a-101, unlawful restraint in the first degree in violation of General Statutes § 53a-95, risk of injury to a child in violation of General Statutes § 53-21 and assault in the third degree in violation of General Statutes § 53a-61, the defendant was released after posting a $25,000 surety bond. His release was conditioned on orders that expressly required him, inter alia, to stay away from the named victim and not to commit any federal, state or local crime during the period of release. See General Statutes § 54-64e. On June 12, 1991, while on release, the defendant was arrested and charged with assault in the second degree in violation of General Statutes § 53a-60. He was released after posting a $50,000 surety bond. Two days later, on June 14,1991, he was arrested and charged with threatening in violation of General Statutes § 53a-62 and was released after posting a $5000 surety bond.

The state filed a motion pursuant to § 54-64f to revoke the defendant’s release alleging that (1) the defendant had been released on bail following his arrest on June 4, 1991, for a criminal offense punishable by more than ten years imprisonment, and (2) the defendant had violated the conditions of his release by violating the criminal laws of this state.

At the June 20,1991 evidentiary hearing on the state’s motion to revoke release held pursuant to § 54-64f (a), the state offered the testimony of I. Charles Mathews, deputy mayor of Hartford, who testified that, while on his way to a local radio station on the morning of June 12, 1991, he had been severely beaten about the head and body by a man wielding a steel pipe. Mathews, who remained in the hospital for two days following the assault, required treatment for a head wound and received stitches in both legs. At the hearing, Mathews positively identified the defendant as his assailant and then testified that he had never seen the defendant before and did not know what had precipitated the attack. He further testified that he was receiving police protection and was in fear of the defendant.

The trial court, Barry, J., applying the criteria of subsection (c) of § 54-64f, found that probable cause existed to believe that the defendant had committed a federal, state or local crime while on release, and further found by clear and convincing evidence that the safety of another person, namely Mathews, was endangered while the defendant was on release. It stated that these findings gave rise to a rebuttable presumption that the defendant’s release should be revoked, which, it concluded, the defendant had failed to rebut. At the conclusion of the evidentiary hearing, the trial court ordered that the defendant’s release under the initial bond of $25,000 be revoked.

On July 19,1991, the defendant filed a motion to dismiss the first information or in the alternative to set new conditions of release. The trial court, Kocay, J., after hearing oral argument by the parties on July 31, 1991, denied the defendant’s motion on August 2,1991, and declined to set bond. On August 8, 1991, the defendant filed a motion for review of bond in the Appellate Court pursuant to § 54-63g. On September 8, 1991, the Appellate Court granted the motion for review and denied the relief requested. The defendant filed a petition for certification in this court. On October 9, 1991, by a corrected order on the defendant’s petition for certification to appeal; see footnote 5, supra; we granted certification on two questions: (1) procedurally, does this court have jurisdiction to consider the defendant’s claim, and (2) substantively, does article first, § 8 of our state constitution, which establishes a right to bail in criminal prosecutions, render the bail revocation provisions of § 54-64f (c) unconstitutional in the circumstances of this case?

I

The first issue that we must address is whether this court has jurisdiction to consider the merits of the defendant’s interlocutory appeal within the confines of our authority to certify appeals from the Appellate Court. If we conclude that such jurisdiction is lacking, the question then arises whether any other avenue of appellate review is appropriate in the particular circumstances of this case.

The statute that governs our certification jurisdiction is General Statutes § 51-197f, which provides that this court may certify cases for review “[ujpon final determination of any appeal by the appellate court . . . .” This court has previously dismissed petitions for certification from decisions of the Appellate Court denying leave to appeal in a zoning matter; Ingersoll v. Planning & Zoning Commission, 194 Conn. 277, 278-79, 479 A.2d 1207 (1984); and denying relief on a motion for review. State v. Carter, 212 Conn. 811, 564 A.2d 1072 (1989). We have thus consistently observed the statutory mandate that our jurisdiction to review decisions of the Appellate Court is not plenary but is limited to final judgments by that court. We have never construed Practice Book § 4126, which describes our review of “causes” decided by the Appellate Court, as having been intended to enlarge our statutory jurisdiction.

In this case, the Appellate Court did not undertake finally to determine an appeal. Instead, in accordance with § 54-63g, the Appellate Court granted the defendant’s petition for review of the revocation of his bail but denied the relief that he had requested. That decision was neither the determination of “an appeal” nor action that constituted a final judgment. In a criminal proceeding, there is no final judgment until the imposition of a sentence. State v. Coleman, 202 Conn. 86, 89, 519 A.2d 1201 (1987); State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980).

It may be true, as the defendant contends, that some interlocutory orders are directly appealable to a court that has the statutory jurisdiction to hear them. The general rule is, however, that interlocutory orders in criminal cases are not immediately appealable. United States v. MacDonald, 435 U.S. 850, 857, 98 S. Ct. 1547, 56 L. Ed. 2d 18 (1978) (denial of motion for speedy trial); Cogen v. United States, 278 U.S. 221, 227-28, 49 S. Ct. 118, 73 L. Ed. 275 (1929) (denial of motion for return of seized property); State v. Atkins, 203 Conn. 33, 34, 522 A.2d 1234 (1987) (finding of probable cause to believe criminal offense has been committed); In re Juvenile Appeal (85-AB), 195 Conn. 303, 306, 488 A.2d 778 (1985) (denial of a motion to transfer to the criminal docket); State v. Longo, 192 Conn. 85, 89, 469 A.2d 1220 (1984) (denial of motion for youthful offender status); State v. Spendolini, 189 Conn. 92, 97, 454 A.2d 720 (1983) (denial of motion for accelerated rehabilitation); State v. Grotton, supra, 295-96 (granting of state’s motion to take nontestimonial evidence from defendant); State v. Kemp, 124 Conn. 639, 646-47,1 A.2d 761 (1938) (permitting defendant access to grand jury minutes); compare State v. Aillon, 182 Conn. 124, 126, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981) (colorable double jeopardy claim immediately appeal-able). Notably, this court has reviewed, on appeal after a final judgment, a criminal defendant’s claim that the trial court had violated his state constitutional right to be released on bail. State v. Olds, 171 Conn. 395, 404, 370 A.2d 969 (1976).

Even when we have entertained the possibility that an interlocutory order in a criminal case might warrant an immediate appeal; see State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983); we have recognized that “[t]he right of appeal is purely statutory.” Id., 30. The legislature has the authority to make interlocutory orders immediately appealable; see, e.g., General Statutes § 52-278l (prejudgment remedies) and General Statutes § 52-405 (accounting); or to characterize interlocutory orders as final judgments for the purposes of an appeal. See, e.g., General Statutes § 54-56e (denial of motion to dismiss upon completion of accelerated rehabilitation program or termination of participation in such a program). There is, however, no statutory authority that confers on the defendant a right to an interlocutory appeal in this case.

The legislature also has the authority to make interlocutory orders immediately reviewable, in summary fashion, by authorizing petitions for review, usually within a limited time period, and often specifically to the Appellate Court. See, e.g., General Statutes § 51-164x (closure orders); General Statutes § 54-47g (a) (grand jury disclosures). With respect to the petition for review authorized in this case by § 54-63g, as with regard to §§ 51-164x and 54-47g (a), the legislature has designated the Appellate Court, and not this court, as the appropriate forum for the disposition of such petitions. Statutory permission to file a petition for review does not authorize the filing of a full-fledged appeal, either in the Appellate Court or in this court. The limited review contemplated by § 54-63g does not confer jurisdiction on this court to grant certification to reconsider the merits of the action taken by the Appellate Court. Absent statutory authorization, this court has no inherent judicial authority to grant certification to hear appeals concerning contested orders of trial court judges. See In re Judicial Inquiry No. 85-01, 221 Conn. 625, 605 A.2d 545 (1992); see also State v. Gross, 109 Conn. 738, 147 A. 670 (1929).

In light of these precedents, the petition for certification to appeal under § 51-197f must therefore be dismissed. As in State v. Carter, supra, we have no jurisdiction to grant a certified appeal to review the Appellate Court’s disposition of a petition for review under § 54-63g.

The question that remains, however, is whether there is any other jurisdictional basis for this court to consider the serious constitutional issues that the defendant has raised. The special circumstances of this case fit within the substantive ambit of General Statutes § 52-265a (a), which allows the chief justice to certify a direct appeal to the Supreme Court from an interlocutory order of the Superior Court on an issue of law that “involves a matter of substantial public interest and in which delay may work a substantial injustice.” To avail himself of this special right to appeal, however, a litigant must ordinarily request certification “within two weeks from the date of the issuance of the order or decision” of the Superior Court for which expedited review is being sought. Because of the defendant’s recourse to the petition for review authorized by § 54-63g, he can no longer comply with these time constraints.

The Supreme Court will, nonetheless, treat the defendant’s petition for certification under § 51-197Í as a late petition for certification under § 52-265a (a). The chief justice has agreed to waive the defendant’s delay in filing this petition, and has determined that the defendant’s challenge to the constitutionality of § 54-64f warrants an immediate appeal from the order of the Superior Court in accordance with § 52-265a (a). The merits of the defendant’s appeal are therefore properly before this court.

II

We now turn, therefore, to consider the second certified question on appeal, that is whether General Statutes § 54-64f (c), as applied to the defendant, violated the right of bail provision of article first, § 8 of our state constitution. We conclude that it did not.

Section 8 of article first provides that “[i]n all criminal prosecutions, the accused shall have a right . . . to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great . . . .” We have previously concluded that this provision guarantees bail in a reasonable amount in “all cases, even capital cases not falling within the exception.” State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970); see also State v. Aillon, 164 Conn. 661, 295 A.2d 666 (1972). The defendant has a fundamental constitutional right to bail pending trial in all but certain capital offenses. State v. Olds, supra.

Pursuant to bail reform undertaken in 1990, the legislature amended many of the provisions on bail contained in the General Statutes and added others. For persons arrested and charged with certain class A, B, C and D felonies, General Statutes § 54-64a, amended pursuant to Public Acts 1990, No. 90-213, § 51, authorizes a trial court to impose nonfinancial conditions of release that it determines will “reasonably assure the appearance of the arrested person in court and that the safety of any other person will not be endangered.” Section 54-64e imposes as a nonfinancial condition of all pretrial and posttrial releases that “the person released not commit a federal, state or local crime during the period of release.” Section 53 of Public Acts 1990, No. 90-213, codified as § 54-64f, enumerates possible sanctions for violation of a condition of release or the commission of a crime while on release, ranging from the imposition of different or additional conditions of release to the revocation of release where the defendant is on release with respect to an offense with a possible term of imprisonment of ten or more years. General Statutes § 54-64f (b) and (c). “The revocation of a defendant’s release . . . shall cause any bond posted in the criminal proceeding to be automatically terminated and the surety to be released.” General Statutes § 54-64f (d).

Consequently, the condition that the defendant not commit any federal, state or local crime was automatically imposed upon the defendant’s pretrial release from confinement on June 5, 1991. Subsection (b) of § 54-64e requires that, at the time of release, the defendant be notified in writing: “(1) Of the condition specified in subsection (a) of this section and any additional conditions of release; (2) that violation of any condition of release may result in the imposition of different or additional conditions of release; (3) that if he is released with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court finds that he has violated any condition of release and the safety of any other person is endangered while he is on release, his release may be revoked.” The defendant has not challenged the adequacy of the notice that he received.

In light of the certified questions that limited the defendant’s constitutional challenge to his right to bail in the circumstances of this case, we construe the defendant’s argument on appeal as having two components. First, the defendant urges us to construe § 54-64f (c), in order to preserve the statute’s constitutionality, to require the setting of a new bond as the only penalty for breach of conditions of release. Second, the defendant maintains that if such a construction is not adopted, it was constitutionally impermissible for the trial court to apply the statute in this case to revoke his bond in its entirety.

A

We reject the defendant’s statutory construction argument as inconsistent with the language of § 54-64f (c). Subsection (c) provides that “[i]f the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing, finds by clear and convincing evidence that the safety of any other person is endangered while the defendant is on release and that there is probable cause to believe that the defendant has committed a federal, state or local crime while on release, there shall be a rebuttable presumption that his release should be revoked.” Despite its clear language, relying on the admonition that “when presented with a constitutional challenge to a validly enacted statute, [we] construe the statute, if possible, to comport with the constitution’s requirements”; Rules Committee of the Superior Court v. Freedom of Information Commission, 192 Conn. 234, 240, 472 A.2d 9 (1984); the defendant and the amicus urge us to construe § 54-64f (c) to require that a new and perhaps higher bond, with additional conditions, be ordered following revocation.

“Statutory language is to be given its plain and ordinary meaning unless such meaning is clearly at odds with the legislative intent.” State v. Taylor, 153 Conn. 72, 82, 214 A.2d 362 (1965), cert. denied, 384 U.S. 921, 86 S. Ct. 1372, 16 L. Ed. 2d 442 (1966); see also Kil duff v. Adams, Inc., 219 Conn. 314, 336-37, 593 A.2d 478 (1991). Section 54-64f (c) provides that a trial court may, in certain circumstances, revoke a defendant’s release. Revoke means to “annul or make void by recalling or taking back. To cancel, rescind, repeal, reverse, as to revoke a license or will.” Black’s Law Dictionary (6th Ed. 1990). Absent language indicating that the legislature intended a new release to be granted in all cases, the use of the term “revoke” denotes finality. Read literally, therefore, § 54-64f (c) authorizes the permanent revocation of release.

The conclusion that the legislature in § 54-64f (c) contemplated permanent revocation is further bolstered by language in the first part of § 54-64f (b). Subsection (b) permits the trial court, upon a violation of a condition of release, to “impose different or additional conditions” upon a defendant’s release where the offense for which the defendant is released has a maximum sentence of less than ten years. If the legislature, by using the term “revoke” in the remaining part of subsection (b) and subsection (c), had intended that, following revocation of release, the trial court must always grant a new release on new or different terms, the language of the first part of subsection (b) would be rendered meaningless. “Such an interpretation undercuts the established principle that no part of a legislative enactment is to be treated as insignificant or unnecessary, and there is a presumption of purpose behind every sentence, clause or phrase . . . .” (Internal quotation marks omitted.) State v. Delossantos, 211 Conn. 258, 274, 559 A.2d 164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed. 2d 142 (1989).

B

For three reasons, we conclude that § 54-64f (c) was not unconstitutionally applied in this case. First, the statute, properly viewed, implements the inherent judicial authority of trial courts to compel compliance with conditions of release. Second, revocation of release is consistent with ensuring a defendant’s appearance in court. Third, good behavior while on pretrial release has been recognized historically as a legitimate purpose of bail in this state.

The fundamental right to bail guaranteed under our state constitution must be qualified by a court’s authority to ensure compliance with the conditions of release. While released on bail prior to trial, a defendant is still within the constructive custody of the law. State v. Bates, 140 Conn. 326, 330-31, 99 A.2d 133 (1953). The trial court retains jurisdiction over the conditions of release; see General Statutes §§ 54-69 to 54-69b; Practice Book § 673; and possesses the inherent authority “ ‘to exercise powers; to implement and enforce laws; to exact obedience.’ ” In re Dodson, 214 Conn. 344, 350, 572 A.2d 328, cert. denied, 498 U.S. 896, 111 S. Ct. 247, 112 L. Ed. 2d 205 (1990); see also State v. Howell, 80 Conn. 668, 671, 69 A. 1057 (1908). One court has noted that “a specific statute granting the trial court authority to revoke bail [upon the violation of a reasonable condition of release] is not necessary, since a court with jurisdiction over a criminal case has the power to enforce its orders as to bail just as it has control over other orders.” Mello v. Superior Court, 117 R.I. 578, 583-84, 370 A.2d 1262 (1977).

We agree with the state that the power to enforce reasonable conditions of release is a necessary component of a trial court’s jurisdiction over a criminal case. Indeed, since 1976, the rules of court of this state have provided that “[a]fter a hearing and upon a finding that the defendant has violated reasonable conditions imposed on his release, the judicial authority may impose different or additional conditions upon the defendant’s release or revoke his release.” (Emphasis added.) Practice Book, 1963 as amended to 1976, § 2094 (now § 683). In this case, an explicit condition placed upon the defendant’s release on bail was to refrain from committing any federal, state or local crimes. The trial court allowed the defendant’s pretrial release from confinement, and the defendant acquiesced in the trial court’s condition of release. The defendant was subsequently arrested on charges that, while on release, he had engaged in an unprovoked brutal assault on Mathews in broad daylight. Upon the trial court’s finding of probable cause to believe that the defendant had committed this crime, it had the power, either pursuant to its jurisdiction over the criminal case, or pursuant to § 54-64f (c), to revoke the defendant’s release.

Standards promulgated by the American Bar Association are in accord with this view. They note that “[t]he concept of conditional pretrial release would be meaningless if courts lacked the power to rescind release after release conditions have been violated. . . . Defendants who have violated those terms have disregarded judicial orders. As long as they are proceeded against in a constitutionally fair fashion, they may be incarcerated in the same manner as persons convicted of contempt.” American Bar Association Standards for Criminal Justice, Pretrial Release Standards (1985 Rev.) § 10-5.8 (a), p. 129.

Revocation of the defendant’s release did not encroach upon his constitutional right to be released on bail. The defendant’s failure to abide by the conditions of his release resulted in a forfeiture of his right to release. Because the defendant was initially released on bail, the requirements of article first, § 8, as announced by this court in State v. Menillo, supra, were met. As one court noted, in effect, “the keys to continued freedom [were] left in the pocket of the accused.” Rendel v. Mummert, 106 Ariz. 233, 238, 474 P.2d 824 (1970). Having been released on bail, and having subsequently violated the condition placed upon the release that he not commit a federal, state or local crime, the defendant cannot be heard to complain that his constitutional right to bail was violated.

Our conclusion that the trial court had the authority to revoke the defendant’s bail is not inconsistent with our statement in State v. Menillo, supra, 269, that the “fundamental purpose of bail is to ensure the presence of an accused throughout all proceedings.” See also State v. Bates, supra, 330. It is reasonable to suppose that a defendant who is arrested and charged with the commission of additional and serious crimes while on pretrial release might, as a result of these charges, more readily be tempted to flee the jurisdiction.

The historical roots of the right to bail in this state illuminate the proposition that the constitution of 1818 was not intended to provide the defendant with an unconstricted right to bail. To comprehend the true import of the right to bail under our constitution, it is helpful to consider the historical record of the period before and at the time of the adoption of the provision. See State v. Barton, 219 Conn. 529, 538-39 n.4, 541 n.8, 594 A.2d 917 (1991); State v. Lamme, 216 Conn. 172, 178-81, 579 A.2d 484 (1990).

Consideration of the customary purposes of bail prior to the adoption of the constitution of 1818 supports the conclusion that, while ensuring the appearance of the defendant is a primary purpose of bail in this state, it is not necessarily the sole purpose. The statutory right to bail in Connecticut is traceable to a 1672 legislative enactment declaring that “no mans person shall be Restrained or Imprisoned by any Authority whatsoever, before the Law hath sentenced him thereunto if he can put in sufficient security, bayl or mainprize for his appearance and good behaviour in the mean time, unless it be in Crimes Capital, and Contempt in open Court, or in such cases where some express Law doth allow it.” (Emphasis added.) The Laws and Liberties of Connecticut Colonie, reprinted in The Laws of Connecticut: An Exact Reprint of the Original Edition of 1673 (G. Brinley Ed. 1865) p. 32; see also The Public Statute Laws of Connecticut, tit. I, p. 24 n.7 (1808); C. Collier, “The Connecticut Declaration of Rights Before the Constitution of 1818: A Victim of Revolutionary Redefinition,” 15 Conn. L. Rev. 87, 93 n.19 (1982). A substantially identical provision on bail was included in the 1750 revision of the Declaration of Rights; see The Public Statute Laws of Connecticut, supra; see also C. Collier, supra; which, we have stated, “had constitutional overtones even though it was statutory in form.” State v. Lamme, supra, 179; see also C. Collier, supra, 94; 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 391 (“[i]n respect of bail, our law determines that no man's person shall be restrained, or imprisoned by any authority whatever, before the law has sentenced him thereto, if he can or will give sufficient security, bail, or mainprize, for his appearance and good behaviour in the mean time”).

Neither the text of the 1818 constitution nor that of any subsequent constitution has made express reference in its bail provision to the defendant’s appearance or to the defendant’s good behavior. Legislative references to either purpose were eliminated from statutes enacted after 1818 and before 1849, while language providing that bail was conditioned upon a defendant’s appearance before the court reappeared in statutes enacted in 1949 and remained thereafter. There is no evidence, however, that the framers of the 1818 constitution intended to abandon the customary purposes of bail that were in effect at the time of the adoption of the constitution and had been for at least 145 years. This court has previously stated that “[t]he constitution adopted in 1818 did not create a government but gave to that which had already been established the sanction of the people and, in very general language, formulated its framework.” Dowe v. Egan, 133 Conn. 112, 119, 48 A.2d 735 (1946); see also C. Collier, supra, 96 (“the substance of the ancient statutory and common law protections continued unchanged” following the adoption of the Bill of Rights in 1818).

In 1981 the legislature expressly authorized a defendant’s pretrial release upon a written notice to appear with nonfinancial conditions imposed. Public Acts 1981, No. 81-437. Prior to 1981, a defendant was either released upon execution of a written promise to appear or upon a bond with or without surety. General Statutes (Rev. to 1981) § 54-64a. Conditioning pretrial release on a defendant’s ability to meet a financial bond set by the court emphasizes the appearance aspect of bond more so than do many nonfinancial conditions commonly imposed now pursuant to § 54-64a (c). The use of nonfinancial conditions of release in addition to or in lieu of bond has broadened the focus of the purposes of bail to recognize, once again, that bail is a method for ensuring a defendant’s good behavior while on release.

The courts of numerous other states with constitutional provisions similar to ours concur that a defendant’s bail can be revoked following the violation of a condition of release or for the commission of a crime while on release. In Taglianetti v. Langlois, 105 R.I. 596, 600, 253 A.2d 609 (1969), the Rhode Island Supreme Court held that its constitution, like ours, provided bail as a matter of right in all but capital cases. Nevertheless, in Mello v. Superior Court, supra, reasoning that a defendant’s pressure to flee increases when he commits crimes while free on bail; id., 582; the court held that revocation of bail is a proper remedy for violating a condition imposed upon a defendant’s release. Id., 585. It rejected the defendant’s claim that the trial court may only set new and higher bail with more stringent conditions, stating that “we do not think our Constitution must be read as providing a continuing, renewable right to bail on the same charge where a bail condition has been breached. The state need not keep freeing the defendant while upping the ante.” Id., 583. It further noted that “[t]he authority of the court to revoke bail in certain situations ought not to be construed as authority to exercise preventive detention. The former is a sanction for past acts, the latter a prophylactic for the future. We are concerned with the former.” Id., 585; see also Bridges v. Superior Court, 121 R.I. 101, 105 n.3, 396 A.2d 97 (1978).

In People ex rel. Hemingway v. Elrod, 60 Ill. 2d 74, 83-84, 322 N.E.2d 837 (1975), the Illinois Supreme Court recognized a trial court’s authority to revoke a defendant’s release on bail for the violation of a condition of release or the commission of a serious crime while awaiting trial. It concluded that, while “[t]he object of bail, of course, is to make certain the defendant’s appearance in court”; id., 81; “[t]he court has the inherent authority to enforce its orders and to require reasonable conduct from those over whom it has jurisdiction.” Id., 83. The court emphasized that by concluding that a defendant’s bail could be revoked for violating a condition of release, it was “not adopting the principle of preventive detention of one charged with a criminal offense for the protection of the public” and declined to discuss “the wisdom or the constitutionality of that principle.” Id., 80; see also Rendel v. Mummert, supra, 237-38; Gardner v. Murphy, 402 So. 2d 525, 526 (Fla. App. 1981); State v. Albert, 312 N.C. 567, 575, 324 S.E.2d 233 (1985); State v. Brown, 136 Vt. 561, 565-66, 396 A.2d 134 (1978); but see Reeves v. State, 261 Ark. 384, 548 S.W.2d 822 (1977) (revocation of pretrial release without setting new bail deemed unconstitutional). In our view, the Connecticut constitution confers upon our trial courts a similar authority, in the proper circumstances, to revoke a defendant’s bail for serious noncompliance with the conditions of his release.

The certified appeal is dismissed; upon the granting of review pursuant to General Statutes § 52-265a, the order of the trial court is affirmed.

In this opinion Callahan, Covello and Borden, Js., concurred.

Berdon, J.,

dissenting. Today, the majority ignores the plain language of our state constitution, which provides that every person who is charged with a crime is entitled “to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great . . . .” Conn. Const., art. I, § 8. I disagree with the majority on how it reaches the merits of the issue and also on its interpretation of our state charter of liberty.

I

I do not believe that the chief justice is required to invoke General Statutes § 52-265a to hear the present appeal from the Appellate Court’s denial of the relief requested in the petition to be admitted to bail by the defendant, Enrique Ayala. General Statutes § 51-197f provides that this court may certify cases for review “[u]pon final determination of any appeal by the appellate court.” The present appeal is from a final determination by the Appellate Court regarding the defendant’s constitutional right to be free on bail prior to conviction. Any judicial determination depriving a person of liberty, which never can be returned to him or her, constitutes a final judgment. Indeed, I cannot think of anything else more final. Accordingly, this court has jurisdiction under § 51-197f to hear the appeal.

If not a final judgment, the Appellate Court’s denial of the relief requested surely comes within the second exception of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983)—that is, “where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Again, if the defendant was improperly denied bail, further proceedings cannot affect that right because his lost freedom cannot be returned to him.

Furthermore, the procedural posture of this case requires that we exercise our general supervisory authority over the Appellate Court. Practice Book § 4127 (3). After the trial court refused to set a new bond once the defendant’s pretrial release was revoked pursuant to General Statutes § 54-64f, the defendant filed a petition for review with the Appellate Court raising substantial questions of first impression for this state, which included whether § 54-64f passes muster under our state constitution. Even though the defendant complained that he was being unconstitutionally deprived of his liberty, the Appellate Court denied the defendant’s request for relief sought in the motion to review without setting forth its reasons, either in written or oral form.

Although I do not agree that it was necessary to invoke § 52-265a, I do agree that the defendant “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.” General Statutes § 52-265a (a). Since the chief justice made her certification under § 52-265a (b), we surely have jurisdiction.

I am concerned, however, that since the statute provides for only vague statutory guidelines, the chief justice, in writing for the majority, did not provide an analytical framework for the application of § 52-265a. We, therefore, do not have the benefit of any guidance for future cases, especially in situations, such as this case, wherein the chief justice invoked the jurisdiction of this court under § 52-265a on her own motion, notwithstanding the requirements of that statute. am sure that the legislature, in granting this discretion to one justice, albeit the chief justice, did not intend to grant that justice unbridled discretion.

One further preliminary matter needs comment. It is implicit in the chief justice’s certification under § 52-265a that she finds that the present issue “involves a matter of substantial public interest,” and I agree, as indicated above. Under these circumstances, the chief justice should have ordered reargument of this case before the full court so that the people of the state would have the benefit of all the justices’ opinion on this important issue involving the deprivation of a person’s liberty. See General Statutes § 51-207.

II

I also disagree with the majority’s disposition of the merits of the present case. The plain, clear and concise language of our bail provision in the state constitution requires that “[i]n all criminal prosecutions, the accused shall have a right ... to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great . . . .” Conn. Const., art. I, § 8. Today, the majority, in interpreting that § 54-64f permits the court to revoke the bond of the defendant without setting a new bond, imports on our state constitution a “good behavior” clause that it claims was engrafted there as a result of statutory and common law precedent. It seems to me that if good behavior was an exception to the right of bail, then the framers of our constitution would have made it explicit, just as they have done for certain capital offenses. Indeed, the chief justice wrote in her dissenting opinion in Cologne v. Westfarms Associates, 192 Conn. 48, 77, 469 A.2d 1201 (1984), the following: “When constitutional provisions, read in context with each other, guarantee constitutional rights, subject only to the explicit limitation that they shall not be abused, is it proper to add an additional limitation that the constitution itself does not contain? While the intent of the framers is an important resource to resolve ambiguity, it is not an appropriate resource to create ambiguity. As Dean Ely notes, it is important ‘to bring to the fore what seems invariably to get lost in excursions into the intent of the framers, namely that the most important datum hearing on what was intended is the constitutional language itself. ’ (Emphasis in original.) J. Ely, Democracy and Distrust (1980) p. 16. We have recognized the same rule of construction in Borino v. Lounsbury, 86 Conn. 622, 625, 86 A. 597 (1913), where we relied on 1 Story on the Constitution (5th Ed.) §§ 405, 407, to limit the role of evidence of the intent of the framers of the Connecticut constitution.” (Emphasis in original.) This rule applies with equal force in the present case because, as we held in State v. Menillo, 159 Conn. 264, 269, 268 A.2d 667 (1970), “the bail provision of § 8 of article first of our constitution makes clear that it was intended that in all cases, even capital cases not falling within the exception, bail in a reasonable amount should be ordered.”

I do not question the authority of the trial court or the legislature to place reasonable conditions on bail, including a “good behavior” requirement. Because, however, our constitution does not expressly allow for the denial of bail for the breach of a condition, once the bond is revoked because of such a breach, the trial court must set new bail to provide again for the release of the accused. Undoubtedly, the trial court, in setting the new bail, may consider that the subsequent bad conduct of the accused would increase the likelihood that he or she might flee and, therefore, the trial court could command a higher surety. Mello v. Superior Court, 117 R.I. 578, 582, 370 A.2d 1262 (1977).

In Mello, the issue before the Rhode Island Supreme Court was similar to the issue in the present appeal; that is, whether the complete revocation of bail is a proper remedy for a violation of a condition imposed upon an accused’s release. In his dissent, Justice Doris concluded that the violation of a good behavior condition to bail should not strip the accused of the right to be released on bail a second time. Id., 591 (Doris, J., dissenting). He stated that “[i]f a condition of bail is breached, bail may be forfeited and a new bail set. If the breach is flagrant, citation for contempt may be appropriate. But a court should not be allowed to enforce its orders by attempting to withhold constitutional rights.” Id., 592. I agree with Justice Doris in Mello where he aptly noted that “revocation of bail solely for breach of a condition comes perilously close to preventive detention.” Id.

In Reeves v. State, 261 Ark. 384, 387, 548 S.W.2d 822 (1977), relying in part on article two, §§ 8 and 9 of the Arkansas constitution (1874), the Supreme Court of Arkansas held that a criminal defendant “has an absolute right before conviction, except in capital cases, to a reasonable bail.” The court concluded that the imposition of bail with reasonable terms and conditions passes constitutional muster because, if the accused violates the terms of the present bail, the trial court is required to set new and reasonable bail and not refuse any future release of the petitioner on any bail. Id.

The framers of our state constitution placed a high priority on the right to be free pending a determination of guilt. By drafting article first, § 8 of our constitution, which has its roots in our first constitution; see Conn. Const, of 1818, art. I, § 14; the framers obviously recognized that more than liberty is lost when bail is denied. It is well documented that “[p]retrial detention lessens [the presumption of innocence] because an accused is now treated as a convict before trial. An accused individual loses time and liberty, jobs frequently disappear, family and friend relationships are disrupted. The physical appearance of an accused is affected during this period of detention. This impedes upon the ability to prepare an effective defense. As a result, an accused individual is more likely to be convicted and there is a greater likelihood that a severe sentence will be imposed. This violates due process since an accused individual loses liberty during pretrial detention prior to an adjudication of guilt at trial.” Comment, “ United States v. Salerno: A Reduction of Individual Rights,” 15 New Eng. J. on Crim. and Civ. Confinement, 147, 161-62 (1989).

I would hold that, although bail for the defendant may be revoked under § 54-64f, upon application by the defendant, new bail must be set in accordance with the provisions of article first, § 8 of the Connecticut constitution. I would, therefore, order that the Appellate Court remand the matter to the trial court with instructions to set new bail. Accordingly, I respectfully dissent.

       “[General Statutes] Sec. 54-64f. violation op conditions of release. IMPOSITION OF DIFFERENT OR ADDITIONAL CONDITIONS. REVOCATION OF release, (a) Upon application by the prosecuting authority alleging that a defendant has violated the conditions of his release, the court may, if probable cause is found, order that the defendant appear in court for an evidentiary hearing upon such allegations. An order to appear shall be served upon the defendant by any law enforcement officer delivering a copy to the defendant personally, or by leaving it at his usual place of abode with a person of suitable age and discretion then residing therein, or mailing it by registered or certified mail to the last-known address of the defendant.
      “(b) If the court, after an evidentiary hearing, finds by clear and convincing evidence that the defendant has.violated reasonable conditions imposed on his release it may impose different or additional conditions upon his release. If the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing, finds by clear and convincing evidence that the defendant has violated reasonable conditions of his release and that the safety of any other person is endangered while the defendant is on release, it may revoke his release.

        “(c) If the defendant is on release with respect to an offense for which a term of imprisonment of ten or more years may be imposed and the court, after an evidentiary hearing, finds by clear and convincing evidence that the safety of any other person is endangered while the defendant is on release and that there is probable cause to believe that the defendant has committed a federal, state or local crime while on release, there shall be a rebuttable presumption that his release should be revoked.
      “(d) The revocation of a defendant’s release pursuant to this section shall cause any bond posted in the criminal proceeding to be automatically terminated and the surety to be released.”

       The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right . . . to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great . . . .”

       General Statutes § 54-64e provides in pertinent part: “(a) When any person is released pursuant to the provisions of sections 54-63a to 54-63g, inclusive, or sections 54-64a to 54-64c, inclusive, it shall be a condition of such release that the person released not commit a federal, state or local crime during the period of release.”

       “[General Statutes] Sec. 54-63g. appeal from court order re release. 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.”

       By a corrected order on the defendant’s petition for certification to appeal, we granted certification limited to the following questions: “(1) Does the order of the Appellate Court granting review but denying relief with respect to the defendant’s motion for review of the trial court’s order revoking the defendant’s release on bond pursuant to Connecticut General Statutes § 54-64f constitute a final judgment reviewable by this court pursuant to Connecticut General Statutes § 51-197Í? (2) If the order of the Appellate Court is reviewable, does Connecticut General Statutes § 54-64f as applied to the defendant violate the right of bail provision of article first, § 8, of our state constitution?”

       All charges stemmed from an incident that occurred on May 28,1991.

       Mathews testified that the steel pipe “was maybe . . . three foot long . . . about the length of a baseball bat. And the thickness, it was about maybe—it appeared to be anywhere from a[n] inch and a half to two inches [in] diameter.” Mathews also testified that, at the time of the assault, he had been recovering from surgery performed the previous week.

       The state and the defendant both maintain on appeal that the defendant’s release was revoked pursuant to subsection (b) of the statute. The transcripts of the bail revocation hearing, however, make it clear that the trial court, Barry, J., applied subsection (c) to revoke the defendant’s release. The following colloquies occurred at the bail revocation hearing:
      “The Court: . . . You allege that reasonable conditions of bail were violated. You’re then—what you’re moving for is a hearing under 54-64f, correct?
      “Mr. O’Reilly: That’s correct.
      “The Court: And—
      “Mr. O’Reilly: Subsection C then, Your Honor.

        “The Court: That’s what I was going to ask you, is it B or C?
      “Mr. O’Reilly: It’s C, Your Honor.
      “The Court: So that’s your—that’s what you’re asking for is an evidentiary hearing under 54-64f (c) in order to convince the court that the bond of twenty-five thousand dollars should be revoked?
      “Mr. O’Reilly: That’s correct, Your Honor.”
      Moreover, the trial court made no finding, as required by subsection (b), that the state had shown by clear and convincing evidence that the defendant had violated a condition of his release. Accordingly, we are concerned in this appeal only with the application of § 54-64f (c) to the defendant.

       On August 12,1991, we denied the defendant’s request that the motion for review be transferred to this court.

       General Statutes § 52-265a provides in relevant part: “direct appeal on questions involving the public interest, (a) Notwithstanding the provisions of sections 52-264 and 52-265, 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, may 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. The appeal shall state the question of law on which it is based.
      “(b) The chief justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.”

       The defendant raises his claim under the Connecticut constitution only. The guaranty provided in article first, § 8 is more detailed in scope and broader than that contained in the eighth amendment to the United States constitution, which provides only that “[e]xcessive bail shall not be required.” The United States Supreme Court has construed the bail clause of the federal constitution and concluded that it does not confer or recognize a right of bail, but only guarantees that if bail is imposed it must not be excessive. United States v. Salerno, 481 U.S. 739, 752-55, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987); see also Roberson v. State, 501 F.2d 305, 308 (2d Cir. 1974) (no absolute federal constitutional right to bail after a state conviction).

       We do not review the defendant’s claim that General Statutes § 54-64f is unconstitutional on its face because certification on this appeal was requested and granted on the limited issue of whether the statute was applied to the defendant in an unconstitutional manner. See Practice Book § 4138. The United States Supreme Court has noted that to mount a facial challenge to a statute, one must “establish that no set of circumstances exists under which the Act would be valid. The fact that the [Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment. Schall v. Martin, [467 U.S. 253, 269 n.18, 104 S. Ct. 2403, 81 L. Ed. 2d 207 (1984)].” United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). Because certification was granted to consider only the application of the statute to this defendant, we need not consider in this appeal whether the application of § 54-64f to another defendant under different circumstances might result in a deprivation of constitutional rights.
      Moreover, we do not review the defendant’s claim, raised at oral argument, that the revocation of bail violates the principle that one is presumed innocent until proven guilty. The defendant neither requested nor was granted certification on that issue. Without deciding the merits of that claim, we note that the United States Supreme Court addressed the issue of bail and its relation to the presumption of innocence in Bell v. Wolfish, 441 U.S. 520, 533, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979).

       The defendant does not argue in this appeal that a trial court lacks the power to attach reasonable nonfínancial conditions of release upon a criminal defendant’s pretrial release from prison, that the nonfínancial conditions placed upon his release were unreasonable or that evidence was lacking to show probable cause that he had violated the laws of this state. The defendant further does not claim that the trial court, in revoking his pretrial release from prison, violated any of his due process rights.

       General Statutes § 54-64f requires the additional finding, by clear and convincing evidence, that the defendant poses a danger to another individual while on release.

       This forfeiture of the right to release pending trial is analogous to a defendant’s forfeiture of the right to attend his criminal trial. In Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353, reh. denied, 398 U.S. 915, 90 S. Ct. 1684, 26 L. Ed. 2d 80 (1970), the United States Supreme Court held that “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.”

       Article first, § 14 of the constitution of 1818 provided in relevant part: “All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great . . . .”

       Article first, § 9 of the Rhode Island constitution provided: “All persons imprisoned ought to be bailed by sufficient surety, unless for offences punishable by death or by imprisonment for life, when the proof of guilt is evident or the presumption great.” See Taglianetti v. Langlois, 105 R.I. 596, 597, 253 A.2d 609 (1969). In 1988, article first, § 9 of the Rhode Island constitution was amended to provide that bail was not required for offenses punishable by life imprisonment or certain drug offenses. In Witt v. Moran, 572 A.2d 261, 264 (R.I. 1990), the court concluded that the defendants in that case, charged with drug offenses, did not have a constitutional right to bail. After considering United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987), the court further concluded that, under its constitutional provision, it was permissible to hold a defendant without bail in the first instance in order to prevent danger to the community. Witt v. Moran, supra, 265.

       Article first, § 9 of the Illinois constitution provided: “All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.” See People ex rel. Hemingway v. Elrod, 60 Ill. 2d 74, 76, 322 N.E.2d 837 (1975).

       General Statutes § 52-265a provides: “(a) Notwithstanding the provisions of sections 52-264 and 52-265, 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, may 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. The appeal shall state the question of law on which it is based.
      “(b) The chief justice shall, within one week of receipt of the appeal, rule whether the issue involves a substantial public interest and whether delay may work a substantial injustice.
      “(c) Upon certification by the chief justice that a substantial public interest is involved and that delay may work a substantial injustice, the trial judge shall immediately transmit a certificate of his decision, together with a proper finding of fact, to the chief justice, who shall thereupon call a special session of the supreme court for the purpose of an immediate hearing upon the appeal.
      “(d) The chief justice may make orders to expedite such appeals, including orders specifying the manner in which the record on appeal may be prepared.”

       In State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), this court held that an otherwise interlocutory order or ruling of the Superior Court 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.”

       See footnote 1, supra.

       In the twenty-five years since General Statutes § 52-265a was adopted by the legislature, it has been the basis of our jurisdiction in only eight cases. See Canning v. Lensink, 221 Conn. 346, 347, 603 A.2d 1155 (1992) (review granted upon application by the state to review trial court’s refusal to strike a civil case from the jury docket); Moshier v. Goodnow, 217 Conn. 303, 304-305, 586 A.2d 557 (1991) (review granted upon application by the board of selectmen of the town of Old Saybrook to determine the board’s taxing authority when the voters of the town rejected the town budget); State v. Breton, 212 Conn. 258, 259, 562 A.2d 1060 (1989) (review granted upon application by the state to review whether the “especially cruel” aggravating factor in the death penalty statute was unconstitutionally vague); Fernandez v. Fernandez, 208 Conn. 329, 331, 545 A.2d 1036 (1988), cert. denied, 493 U.S. 958, 110 S. Ct. 376, 107 L. Ed. 2d 361 (1989) (review granted upon application by the defendant to determine the applicability of the doctrine of diplomatic immunity for an action for marital dissolution); State v. Ross, 208 Conn. 156, 157, 543 A.2d 284 (1988) (review granted upon application by the Connecticut Law Tribune to determine whether it was entitled to portions of the transcript of a criminal prosecution); Westport v. State, 204 Conn. 212, 213-14, 527 A.2d 1177 (1987) (review granted upon application by the town to review whether the state acted properly when it constructed a temporary truck weighing and inspection station); Griffin Hospital v. Commission on Hospitals & Health Care, 196 Conn. 451, 452, 493 A.2d 229 (1985) (review granted upon application by the commission to review the trial court’s issuance of stay of the commission’s actions against the hospital); Laurel Park, Inc. v. Pac, 194 Conn. 677, 678, 485 A.2d 1272 (1984) (review granted upon application by the state to review the issuance of a temporary injunction by the trial court staying an order of the department of environmental protection closing the Laurel Park landfill).

       I have always been, and continue to be, of the opinion that if a case is important enough to be heard by this court, the people of our state are entitled to the opinion of all the justices.

       Article first, § 14 of Connecticut’s constitution of 1818 provided: “All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident, or the presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion, the public safety may require it; nor in any case, but by the legislature.”