author: Per Curiam. Berdon, J.,

text:
    State of Connecticut v. Ricky Ellis
    (AC 10760)
    Peters, C. J., Callahan, Borden, Berdon, Norcott and Katz, Js.

      (Two justices dissenting)

    Decision released February 23, 1993

      Elizabeth M. Inkster, assistant public defender, in support of the motion.

      Judith Rossi, assistant state’s attorney, in opposition to the motion.
   Per Curiam.

The defendant moves that this court review and vacate an order of the Appellate Court granting the state’s motion to strike the first issue in his Appellate Court brief and the appendix accompanying that issue. Two members of this court have voted to transfer the case to our docket and to restore the stricken material. Because we lack subject matter jurisdiction over this matter, we dismiss the defendant’s motion. We also decline to transfer the appeal to our docket.

The following facts, taken from the trial court file, the defendant’s motion papers in this court and the state’s response thereto, are undisputed. The defendant was charged in the Hartford judicial district with robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and larceny in the first degree in violation of General Statutes §§ 53a-122 and 53a-119, and elected a jury trial. During jury voir dire on May 14, 1991, the defendant, an African-American, moved to dismiss that panel of venirepersons on the ground that the absence from the panel of minority residents of Hartford was evidence that the panel had not been randomly selected. The trial court, Purtill, J., after noting that there was one African-American on the panel, held a hearing on the defendant’s motion.

After the jury clerk had testified to the random process for selecting the members of the panel, the defendant’s counsel conceded that the clerk’s testimony provided no basis for a claim of juror manipulation or lack of random selection, but declined to withdraw the challenge. Relying solely on the list of jurors who had been summoned on May 7,1991, and not immediately excused, the defendant maintained that a random selection process had not been followed and that all possible urban jurors had been excluded. The trial court found that the panel of venirepersons had been randomly selected and that there had not been an intentional exclusion of Hartford residents. Accordingly, the trial court denied the defendant’s motion.

Voir dire of this panel continued through May 15, 1991, and continued thereafter with a second panel of venirepersons summoned on May 17,1991. The court reporter was excused throughout most of the voir dire. Ultimately a jury was selected and found the defendant guilty of the two crimes charged.

On May 31, 1991, the defendant moved in writing for a new trial and for a judgment of acquittal, raising nine specific claims. The third claim was: “The jury array from which the petit jury was chosen was selected in a non-neutral way, did not represent a fair cross section of the community and resulted in a denial of equal protection of the law.” That motion was not accompanied by an offer of evidence or by a memorandum elaborating in any way on this claim. The defendant’s motion was heard by the court on August 23, 1991.

The defendant’s entire argument and submission to the trial court concerning his claim of improper jury array selection consisted of the following statement by his trial counsel: “Essentially, Your Honor, there is a motion dated May 31, 1991, for a new trial and for acquittal and these are all issues in that motion that were raised during the course of the trial. I’m not going to go through all of them and repeat all my arguments, but Your Honor will recall there had been some discrepancy in the jury selection process and it turned out that—later turned out that some of the jurors had been—certain minority jurors had been steered toward the [State v. Webb, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 89 371150 (September 12, 1991)] case and I had raised an issue about whether or not there was a fair and impartial jury in this particular—fair and impartial array in this particular matter as a result. We did have a hearing. The hearing disclosed that there was nothing unusual about it, just seemed that all the jurors were from certain suburbs and none from the urban areas and that’s what [piqued] my interest in the first place, with regard to that. Be that as it may, this has already previously been argued. The record is clear. I’ll note, at this point, for the record, that most of the discussion concerning the jury array arose during jury voir dire, so that in the event of an appeal, someone, if it’s not me, and it’s unlikely it’s going to be me, I’m a special public defender in this case, has to order transcripts, they should also order those portions of the colloquy that took place during jury voir dire and perhaps the entire voir dire process needs to be ordered as well.”

The court’s ruling on this claim was as follows: “With respect to the jury selection . . . if you are not going to be appellate counsel in this matter and an appeal is taken, then I think you should apprise whoever takes it over that that issue was raised. The issue was raised, I think it was resolved. I don’t think that there was any serious—any difficulty with it and I don’t think that—I think the rulings made were correct.” The court thereafter denied the motion and imposed sentence. The defendant appealed to the Appellate Court.

In his Appellate Court brief, the defendant, now represented by the office of the chief public defender, has made four claims, the first of which is: “The court’s denial of the motion for a new trial based on a challenge to the manner in which the jury panels were selected violated federal and/or state constitutional guarantees to due process and to an impartial jury.” In support of this claim, the defendant argued in his brief that his trial counsel had specifically and distinctly argued, on his motion for a new trial, that the jury clerk had steered minority jurors away from his panels in order to make more minority venirepersons available for the trial of a different criminal defendant, namely, Daniel Webb, who was also being tried in the Hartford judicial district during the same time period. The defendant contended that the pool of eligible jurors available on May 15, 1991, for all cases then pending in the judicial district had been purposefully manipulated in order to boost minority representation on the jury panels in the Webb case. He claimed that, on May 15, 1991, after Webb had complained about the low minority representation on his jury panel, “five jurors (three whites and two blacks) were hand-picked and added to the [Webb] panel.”

This improper practice, the defendant argued, reduced the number of minority jurors available for his second panel on May 17,1991, in violation of his constitutional right to a jury selected from a fair cross section of the community. The gist of the defendant’s claim on appeal, therefore, was that his May 17 panel, but not his May 14 panel, had been tainted by the juror manipulation that had allegedly occurred in the Webb case on May 15.

Recognizing that none of these asserted facts were in the record of this case, the defendant printed in the appendix to his brief transcripts of certain trial court proceedings that had taken place in the cases of State v. Webb, supra, and State v. Hooks, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 90 394660 (August 9, 1991), which had been tried in the Hartford judicial district during the same period as the defendant’s trial. The defendant stated that the facts supporting his claim of improper reduction of the number of minority jurors available for his May 17 panel were set forth in these transcripts, and he urged the Appellate Court to take judicial notice of those transcripts for the purpose of acknowledging those facts as true.

The Webb transcript indicates that on May 15,1991, the defendant in that case, apparently acting pro se but with standby counsel, had complained to the trial court, Corrigan, J., that there was an insufficient number of African-American venirepersons on his venire panel. A colloquy took place between Judge Corrigan and the defendant wherein the court stated: “The next thing [the standby counsel] had indicated was that perhaps, as has been done in trial courts, where there’s an imbalance of any one race or ethnic group, that additional jurors be added to the panel. I made no count last night, but apparently your counsel did and they indicated to the court that there were only two blacks on the panel of thirty-six, at which point I called upstairs to find out if there were any additional people who were brought in yesterday and was informed that I had them all except for four people who [had] other things to do this week, so that I was getting all the panel that was coming in yesterday.

“Then I asked the jury clerk if there were any other black jurors up there who came in previously that could be added to the panel and she said there was no way of denoting that and that she didn’t want to walk up to any particular black juror and ask them to sit on a particular panel. So, her only avenue was then to make a selection of an additional number of people, hoping that there would be some black jurors in that additional number.” The remainder of the colloquy indicates that this process resulted in an additional five venirepersons summoned to the Webb voir dire, of which two were African-American.

The Hooks transcript indicates that on June 4,1991, apparently after a jury had been selected in that case and while the trial court, Miaño, J., was in the process of hearing a pretrial motion, Judge Miaño sua sponte raised a matter relevant to a challenge to the jury array that the defendant in that case had filed. A colloquy among Judge Miaño, defense counsel and the state’s attorney ensued in which Judge Miaño reported that he had spoken to Judge Purtill. According to Judge Miaño, Judge Purtill had told him that he had, the previous week, held an evidentiary hearing in a fourth case. Judge Miaño reported that his recollection of Judge Purtill’s comments to him was that Judge Purtill had found, from the testimony of one of the jury clerks, that on May 15 the jury clerk had selected, in a nonrandom fashion, five additional venirepersons, three white and two African-American, and sent them down to Judge Corrigan in the Webb case. This was corroborated by the state’s attorney in the Hooks case, upon the basis of his conversation with the state’s attorney who had handled the evidentiary hearing before Judge Purtill. Because the jury in the Hooks case had been selected from a panel on May 23, the state’s attorney conceded that the Hooks panel had been tainted. The court, Miaño, J., dismissed the Hooks jury.

In moving to strike this entire issue and the accompanying portion of the appendix from the defendant’s brief, the state presented several arguments. First, the state argued that, although the issue that had been raised in the trial court in this case concerned the validity of the defendant’s May 14 panel, the issue raised on appeal concerned, not the validity of that panel, which had been brought into the courtroom the day before the Webb case occurrence, but the validity of the defendant’s May 17 panel. That issue, the state pointed out, had not been raised by the defendant in this case, except tangentially in his August 23 argument on his motion for a new trial, and, furthermore, the tangential reference had been misleading because it incorrectly implied that the alleged Webb panel manipulation had been raised earlier in the context of this case.

Second, the state argued that the defendant had defaulted on his claim of jury panel manipulation. The state contended that, if the defendant’s counsel had known of the purported jury taint during the jury voir dire or the trial, he should have brought it to the attention of the court at that time and, having failed to do so, the defendant was barred from raising it on appeal.

Third, the state argued that the record was inadequate to raise the issue of the validity of the May 17 panel because it consisted of only (1) the defendant’s counsel’s representations regarding the alleged Webb panel manipulation, and (2) the Webb and Hooks transcripts. The representations by counsel, the state contended, were insufficient under our case law as a record of jury array invalidity. The state also argued that the transcripts could not be judicially noticed for the purpose of establishing the alleged manipulation of the Webb panel. Moreover, the state argued, the two transcripts were conflicting on that issue.

Finally, the state argued that, if the Appellate Court were to draw the factual inferences sought by the defendant from those transcripts, namely, that the Webb jury clerk had tainted the pool of jurors on May 15, the state would be prejudiced because it would have had no opportunity to offer evidence to counter the defendant’s claims of improper manipulation of his May 17 panel.

On the basis of this record, the Appellate Court granted the state’s motion to strike. This motion for review followed.

The defendant’s motion for review raises a jurisdictional issue. The vote by the two dissenters in this court to transfer the entire case to this court at this time, and to restore the stricken material, however, raises other, more discretionary concerns.

With respect to the defendant’s motion for review by this court of the Appellate Court’s action in striking the issue from his brief, the defendant relies on Practice Book §§ 4053, 4183 and 4187. That reliance is misplaced. General Statutes § 51-197f limits our jurisdiction over review of decisions of the Appellate Court to final judgments of that court. State v. Ayala, 222 Conn. 331, 338, 610 A.2d 1162 (1992). We have consistently adhered to that statutory mandate. Id. We have, moreover, consistently refused to interpret Practice Book rules “as having been intended to enlarge our statutory jurisdiction.” Id. Indeed, because our jurisdiction is ordinarily based upon statute, it is doubtful that a Practice Book rule could enlarge that jurisdiction without an appropriate statutory basis. See General Statutes § 51-14 (a).

It is clear that the action of the Appellate Court in striking one of the defendant’s four issues on appeal is not a final judgment of that court from which review would lie in this court. State v. Ayala, supra, 338-41. The motion must, therefore, be dismissed.

The vote by the two dissenting members of this court, however, to transfer the case to our docket at this time and to restore the issue and appendix stricken by the Appellate Court, raises different concerns and calls for a different response. There is no question that we have the discretion under General Statutes § 51-199 (c) to transfer this case, a discretion that we have declined to exercise at this time.

Our decision not to transfer the appeal does not mean that we would, on a proper record, countenance an unconstitutional, nonrandom selection of venirepersons. It does mean, however, that, given the current state of this record, we prefer to await the ultimate outcome of the Appellate Court appeal before considering whether to review the defendant’s claim. Awaiting the certification process in this case has two advantages. First, if the defendant prevails on his appeal in the Appellate Court and is awarded a new trial on the basis of his other appellate claims, this issue will be moot. Second, if the defendant is unsuccessful on his appeal in the Appellate Court, the certification process will, if we deem it appropriate, enable us to limit our consideration to this or any other appropriate issue, without the necessity of also considering issues that do not warrant review by this court.

The dissenting opinion concludes, however, that “the arbitrary order [of the Appellate Court] to strike the principal issue in the defendant’s appeal deprives him of” his constitutional right to appeal. The unstated premise of this conclusion is that this record is so clear that we should exercise our discretion to intervene now by transferring the case and restoring the stricken issue and appendix, rather than awaiting the outcome of the Appellate Court appeal. We do not view this record as having that degree of clarity.

The dissent appears to rely on four arguments for our immediate exercise of discretionary review. The first is that the defendant’s claim of manipulation of his May 17 panel “was squarely raised before the trial court.” We disagree.

It is arguable, perhaps, that the defendant’s counsel’s tangential reference to Webb in his argument on August 23,1991, alerted Judge Purtill to such a claim. It is difficult, however, to characterize this record, taken in its entirety, as squarely raising the claim of taint of the defendant’s May 17 panel, the claim that he raises on appeal, as opposed to a claim that his May 14 panel was invalid. Insofar as the record supplied to us thus far indicates, the only claim squarely raised in the trial court concerned his May 14 panel, which could not have been tainted by whatever occurred in Webb on May 15.

The second argument of the dissent is that there is no basis for the state’s claim that the Webb and Hooks transcripts (1) were never before the trial court, (2) are unrelated factually to this case, and (3) were never made part of this record. There is such a basis. It is undisputed that those transcripts were not before the trial court when it denied the defendant’s motion for a new trial and that they were not made a part of the record of this case in the trial court. Whether the transcripts are related factually to this case depends, however, on the resolution of the factual conflict disclosed by the Webb and Hooks transcripts: according to Judge Corrigan’s report of his conversation with the jury clerk, there was no nonrandom selection of venirepersons in Webb; according to Judge Miano’s recollection of his conversation with Judge Purtill regarding the fourth case, in which Judge Purtill had held a hearing, there was such a nonrandom selection. Neither Judge Corrigan nor Judge Miaño, however, held an evidentiary hearing, and we do not have a record of the hearing held by Judge Purtill in the fourth case.

This leads to the third reason advanced by the dissent, namely, that the Appellate Court and, presumably, this court should take judicial notice of those transcripts. We have no quarrel with the general legal propositions stated by the dissent regarding our authority to take judicial notice of files of Superior Court cases. The more troublesome question, however, which the dissent does not address, is whether it is appropriate for us to reach factual conclusions from those transcripts about (1) what is apparently a factual conflict regarding the conduct of the jury clerk in Webb, and (2) what Judge Purtill actually found in the evidentiary hearing held in the fourth case, based solely upon Judge Miaño’s report of his conversation with Judge Purtill. The resolution of that legal question is far from clear, and counsels for judicial patience in addressing the issue of jury panel manipulation in this case.

The dissent’s fourth reason draws on what it infers as Judge Purtill’s grave concern in this case for this issue of jury selection. There are two responses to this reason. First, it is clear that Judge Purtill was addressing, not any issue regarding the defendant’s May 17 panel, which had never been raised prior to the defendant’s counsel’s tangential reference thereto on August 23, but solely the issue regarding the defendant’s May 14 panel, which had been litigated and rejected by the court on that date. Second, we perceive no such concern on the part of Judge Purtill. Judge Purtill stated: “The issue was raised, I think it was resolved. I don’t think that there was any serious— any difficulty with it and I don’t think that—I think the rulings made were correct.”

The motion is dismissed.

Berdon, J.,

with whom Katz, J., joins, dissenting. The majority refuses to review the summary order of the Appellate Court striking the principal issue in the defendant’s appeal, together with related brief and appendix pages. The issue that was stricken is: “Did the court’s denial of the motion for a new trial based on a challenge to the manner in which the jury panels were selected violate federal and/or state constitutional guarantees to due process and to an impartial jury?” The defendant, an African-American, claims that fewer minority members of the jury pool were available for jury selection at his trial because improper jury selection procedures were used. The defendant must, as a matter of justice and as a constitutional right, be allowed to pursue this important and sensitive issue.

It is conceded that this court has held that we do not have jurisdiction to grant similar motions to review, despite Practice Book § 4183, which places the “supervision and control of the proceedings on appeal in the court having appellate jurisdiction. . . .” and Practice Book § 4187, which requires liberal interpretation of our rules. In this case, in which the core of the defendant’s appeal has been stricken, we should alternatively transfer the defendant’s appeal to this court pursuant to the provisions of Practice Book § 4023 and General Statutes § 51-199 (c) and upon transfer, reinstate the stricken issue, and the brief and appendix pages. The record should note that Justice Katz and I moved to transfer the appeal, without success.

The defendant claims, in the issue that was stricken from his appeal, that at the time of jury selection in his case, minority jurors were purposely removed from the jury pool and sent for voir dire in order to accommodate two other criminal cases—State v. Webb, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 89 371150 (September 12, 1991), and State v. Hooks, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CR 90 394660 (August 9, 1991)—thereby depleting the number of minority jurors available for his trial under the “luck of the draw” from the same pool. The issue was squarely raised before the trial court. We have long held that “any attempt to stack a jury panel by intentionally including or excluding any members of a discernable class runs afoul of both due process and the right to a jury trial.” State v. Nims, 180 Conn. 589, 595-96, 430 A.2d 1306 (1980). “The end result . . . is irrelevant. It is the method of selection which offends the constitution. ... No harm or prejudice need be shown in an individual case.” (Citations omitted; emphasis in original.) Id., 597.

Although the Appellate Court did not give us the benefit of its reasoning by writing an opinion explaining why it struck the principal issue raised by the defendant, I presume that it agreed with the state’s written motion to strike, upon which it acted. The state in its motion argued that excerpts from the Webb and Hooks transcripts, which were contained in the defendant’s brief and appendix, should be stricken “because they were never before the trial court in the present case, they are factually unrelated, and they were never made part of the record.”

Evidence to prove the illegal diversion of minority venirepersons from the jury array must necessarily come from the cases to which these venirepersons were directed. Furthermore, the Appellate Court, like the trial court, “may take judicial notice of files of the Superior Court in the same or other cases.” McCarthy v. Commissioner of Correction, 217 Conn. 568, 580 n.15, 587 A.2d 116 (1991) (this court took judicial notice of trial court records from other unrelated, yet similar habeas cases on appeal to the Supreme Court, in order to determine the method by which the commissioner of correction aggregated sentences); Davis v. Maislen, 116 Conn. 375, 384, 165 A. 451 (1933) (trial court took judicial notice of the records of several cases regarding transactions that the defendant had engaged in, but that were unrelated to the plaintiff, in order to establish a fraudulent scheme); see also State v. McDermott, 190 Conn. 20, 23, 458 A.2d 689 (1983) (judicial notice taken of defendant’s previous conviction).

Even more troubling in this matter is the breadth of the Appellate Court’s order. Not only did it strike the references to the transcripts in Webb and Hooks, but it went further and struck the issue itself. “Although there is no constitutional right of appeal [under the federal constitution] . . . the right to appeal, once granted, invokes so significant a protection of liberty that it must be made available to all persons convicted of crimes. . . .” (Citations omitted.) Gaines v. Manson, 194 Conn. 510, 515, 481 A.2d 1084 (1984). In this case, the arbitrary order to strike the principal issue in the defendant’s appeal deprives him of those rights. The majority endeavors to justify its position by attempting to undermine the merits of the claim. The merits of the defendant’s claim are not before us at this time. The issue is whether the defendant is deprived of his right to be heard on appeal with regard to the claim that the procedures used by the court during the selection of his jury were unconstitutional.

This issue raised by the defendant, and summarily stricken by the Appellate Court, goes to the heart of our criminal justice system. State v. Tillman, 220 Conn. 487, 510, 600 A.2d 738 (1991) (Berdon, J., dissenting), cert. denied, U.S. , 112 S. Ct. 3000, 120 L. Ed. 2d 876 (1992). Indeed, the trial judge, although he denied the defendant’s motion for a new trial, was so concerned about this issue that he stated the following for the record: “With respect to the jury selection, [defense counsel], if you are not going to be appellate counsel in this matter and an appeal is taken, then I think you should apprise whoever takes it over that that issue was raised.”

Finally, the majority claims that if the defendant is unsuccessful before the Appellate Court on his other claims, the propriety of striking the issue could be reviewed by this court through the certification process. This claim fails to acknowledge that an appeal to the Appellate Court or an appeal on transfer to this court is a matter of constitutional right for the defendant. That simply means that as a matter of right an appellate court should review the issue. On the other hand, appeals to this court through the certification process are not a matter of right but are only allowed if this court certifies an issue for review. General Statutes § 51-197Í; 6 Practice Book § 4127 (“[certification by the supreme court on petition by a party ... is not a matter of right but of sound judicial discretion and will be allowed only where there are special and important reasons therefor. . . .”). Accordingly, the possibility of this court certifying the issue for review is not a valid substitute for the defendant’s right to appeal the issue.

In sum, I would transfer the appeal to this court and upon transfer reinstate the issue, and the brief and appendix pages that were stricken.

Accordingly, I dissent.

       The defendant also claimed that the trial court improperly: (1) permitted testimony related to police broadcast and 911 emergency telephone tapes that had been destroyed; (2) instructed the jury on an essential element of larceny and robbery; and (3) instructed the jury on reasonable doubt.

       As an alternative to his claim that this issue had been distinctly raised in the trial court, the defendant sought to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), and the plain error rule.

       We refer to that case as the fourth case, considering this case, the Webb case and the Hooks case as the first three cases.

       Practice Book § 4053 provides in relevant part: “[motion for REVIEW]—IN GENERAL
      “The court may, on written motion for review stating the grounds for the relief sought, modify or vacate any order made by the trial court under Sec. 4040 (a) or any action by the appellate clerk under Sec. 4040 (c) (2) or any order relating to the perfecting of the record for the appeal or the procedure of prosecuting or defending against the appeal, or any order made by the trial court concerning a stay of execution on appeal. ...”
      Practice Book § 4183 provides: “supervision of procedure
      “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed, or earlier, if appropriate, and, except as otherwise provided in these rules, any motion the purpose of which is to complete, correct or otherwise perfect the trial court record for presentation on appeal shall be made to the court in which the appeal is pending. The court may, on its own motion, modify or vacate any order made by the trial court, or a judge thereof, in relation to the prosecution of the appeal. It may also, for example, on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial court record for the proper presentation of the appeal; (2) when it appears that by reason of omission from the prepared record of matters of record in the trial court the questions of law in the case are not properly presented, order the appellant to cause to be photocopied the portions so omitted; (3) order improper matter stricken from the record or from a brief; (4) order a stay of any proceedings ancillary to a case on appeal; (5) order the addition to the prepared record of parts of the file necessary to present correctly or fully the matters comprehended by Secs. 4065 (a) and 4066 (a); (6) order that a party for good cause shown may file a late appeal; (7) order that a hearing be held to determine whether it has jurisdiction over a pending matter; (8) order that a hearing be held to determine whether sanctions should be imposed pursuant to Sec. 4184; (9) order an appeal to be dismissed unless the appellant complies with specific orders of the trial court, submits to the process of the trial court, or is purged of contempt of the trial court; (10) remand any pending matter to the trial court for the resolution of factual issues where necessary; (11) correct technical or other minor mistakes in a published opinion which do not affect the rescript.”
      Practice Book § 4187 provides: “rules to be liberally interpreted “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice.
      “In the interest of expediting decision, or for other good cause shown, the court in which the appeal is pending may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.”

       General Statutes § 51-197f provides: “further review by certification only.
      “Upon final determination of any appeal by the appellate court, there shall be no right to further review except the supreme court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of two justices of the supreme court so to certify and under such other rules as the justices of the supreme court shall establish. The procedure on appeal from the appellate court to the supreme court shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court, unless modified by rule of the justices of the supreme court.”

       General Statutes § 51-14 provides in relevant part: “rules of court. DISAPPROVAL OF BY GENERAL ASSEMBLY. HEARINGS, (a) The judges of the supreme court, the judges of the appellate court, and the judges of the superior court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. . . . Such rules shall not abridge, enlarge or modify any substantive right nor the jurisdiction ofany of the courts. . . (Emphasis added.)

       General Statutes § 51-199 provides in relevant part: “jurisdiction. . . .
      “(c) The supreme court may transfer to itself a cause in the appellate court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the constitution, the supreme court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1,1983, to the appellate court. The court to which a cause is transferred has jurisdiction.”

       Upon final determination of the defendant’s appeal by the Appellate Court, however, if that determination is adverse to him, the defendant will certainly have the opportunity to raise, as a ground for certification to appeal, the Appellate Court’s action in striking this issue and the accompanying appendix.

       Even that tangential reference, however, must be understood in the context of the other misleading references, before and after it, to the defendant’s challenge to his May 14 panel. The defendant opened his argument by noting that “these are all issues . . . that were raised during the course of the trial.” The only issue he had raised, however, concerned the May 14 panel. Then, after referring to Webb, he stated: “We did have a hearing. The hearing disclosed that there was nothing unusual about it, [it] just seemed that all the jurors were from certain suburbs and none from the urban areas and that’s what [piqued] my interest in the first place, with regard to that. Be that as it may, this has already previously been argued. The record is clear. ” (Emphasis added.) Again, the only issue that had been argued and upon which the record was clear was the challenge to the May 14 panel.

       We do not intend to imply by our discussion of the dissent’s arguments that the defendant could not ultimately prevail, upon a grant of certification, on his claim that the material was improperly stricken from his brief. Nor do we suggest that the defendant could not prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), or the plain error doctrine.

       The dissent states: “Indeed, [Judge Purtill], although he denied the defendant’s motion for a new trial, was so concerned about this issue that he stated the following for the record: ‘With respect to the jury selection, [defense counsel], if you are not going to be appellate counsel in this matter and an appeal is taken, then I think you should apprise whoever takes it over that that issue was raised.’ ”

       Practice Book § 4183 provides in part: “The supervision and control of the proceedings on appeal shall be in the court having appellate jurisdiction from the time the appeal is filed . . . .”

       Practice Book § 4187 provides in part: “The design of these rules being to facilitate business and advance justice, they will be interpreted liberally in any case where it shall be manifest that a strict adherence to them will work surprise or injustice. . . .”

       Practice Book § 4023 provides in part: “The supreme court may transfer to itself a cause in the appellate court. . . .”

       See footnote 7 of the majority opinion.

       General Statutes § 51-197f provides: “Upon final determination of any appeal by the appellate court, there shall be no right to further review except the supreme court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of two justices of the supreme court so to certify and under such other rules as the justices of the supreme court shall establish. The procedure on appeal from the appellate court to the supreme court shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the superior court, unless modified by rule of the justices of the supreme court.”


source: Caselaw Access Project

author: Callahan, J. Katz, J.,

license: Public Domain

text:
    State of Connecticut v. Frances I. Stevens
    (14525)

      (Two justices dissenting)

    Argued November 5, 1992
    decision released February 23, 1993

      William W. Fisher, Jr., with whom was John J. O’Brien, for the appellant (defendant).

      LeonF. Dalbec, Jr., assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Peter McShane, assistant state’s attorney, for the appellee (state).
   Callahan, J.

The defendant challenges the authority of a Connecticut police officer to conduct a consensual postarrest investigation in another state. The defendant, Frances I. Stevens, was charged in a two count information with assault in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-60d and with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. The trial court admitted into evidence the results of two sobriety tests that were administered in Rhode Island and of tests on two blood samples that were obtained from the defendant in Rhode Island. The evidence had been gathered at the request of Officer Louis Diamanti of the Stonington police department. Following the defendant’s conviction by a jury on both counts, the trial court sentenced her to a term of imprisonment of one year, execution suspended, on the first count and a concurrent term of six months imprisonment, execution suspended, on the second count. The trial court also suspended the defendant’s motor vehicle operator’s license for one year and placed her on probation for a period of one year subject to certain conditions. The defendant appealed to the Appellate Court, which affirmed the trial court’s judgment. State v. Stevens, 26 Conn. App. 805, 603 A.2d 1203 (1992). We granted the defendant’s petition for certification to appeal to this court. We now affirm the judgment of the Appellate Court.

The Appellate Court accurately set forth the facts relevant to this appeal. “On January 31, 1990, the defendant, a Rhode Island resident, was driving her car accompanied by a dinner companion, Rose Buck, in the Pawcatuck section of Stonington at about 11 p.m. on a poorly lighted, narrow hilly road. The defendant had been drinking wine at a restaurant earlier that evening with Buck and another friend. Behind the defendant’s car, Keith Beebe, an off duty Stonington police officer, was driving with a friend, Amos Steadman. The defendant’s car rounded a curve on the two lane road and Beebe lost sight of it. As he reached the other end of the curve, he saw that the defendant’s car had gone off the road and crashed into a tree. The car’s front end was heavily damaged.

“While Steadman went to summon help, Beebe tried unsuccessfully to open the car doors as Buck screamed in pain. While talking with the defendant, Beebe noticed that her eyes were bloodshot and glassy, her speech slurred. He smelled alcohol on her breath, and she told him she had been drinking wine that evening. At about 11:07 p.m., two on duty Stonington police officers, Randy Holt and Louis Diamanti, arrived. They also spoke with the defendant, smelled alcohol on her breath, noticed her glassy eyes and concluded, as did Beebe, that she was under the influence of alcohol. The defendant also told Diamanti that she had been drinking wine that evening.

“At about 11:15 p.m., an ambulance came to take the women to the Westerly Hospital in Westerly, Rhode Island, the closest medical facility. Buck had suffered serious chest and rib injuries, and internal bleeding. She underwent surgery for removal of her spleen and remained in intensive care for three weeks thereafter. The defendant, after being fitted with a neck brace, was removed from the car and placed in an ambulance. Before the ambulance left, however, Diamanti entered the vehicle and conducted a horizontal gaze nystagmus test to determine if the defendant was intoxicated. Because the results, along with his prior observations, led him to conclude that she was intoxicated, he then placed her under arrest at about 11:30 p.m. as she lay on a stretcher in the ambulance, waiting to leave for the hospital.

“Diamanti then rode to the hospital in the ambulance with the defendant. In the emergency room, a doctor examined her and told Diamanti she was suffering from chest bruises. At 12:07 a.m. on February 1,1990, after the examination was completed, Diamanti gave the defendant Miranda warnings. She was coherent and sitting upright in a bed at this time. Diamanti then asked if he could perform two more sobriety tests, and the defendant agreed. He also read her Connecticut’s implied consent law and offered her the chance to contact an attorney, which she chose not to do. When he requested that she submit to two blood tests, she voluntarily consented. At 1 a.m. and again at 1:30 a.m., blood was taken by the defendant’s attending doctor, a physician licensed by the state of Connecticut. Diamanti then issued the defendant a summons. After the blood was sealed and placed in a kit Diamanti had brought from Stonington, he took it back to Connecticut for laboratory analysis. The first sample showed a blood alcohol level of .13; the second disclosed a .12 level. At trial, Sanders F. Hawkins, the state’s chief toxicologist, estimated that at the time of the collision, the defendant’s blood alcohol level was between .14 and .17.” State v. Stevens, supra, 807-809.

The defendant does not challenge the Appellate Court’s conclusion that “Diamanti had lawfully arrested the defendant at the accident scene pursuant to General Statutes § 14-227a.” Id., 811. The defendant concedes, moreover, that the results of the tests on the blood that the officer obtained in Rhode Island would have been admissible if the blood had been taken at either of the more distant Connecticut hospitals rather than at the Rhode Island hospital to which she was transported. The defendant, nonetheless, challenges the conclusion of the Appellate Court that the results of the tests of the two blood samples were properly admitted into evidence by the trial court. Specifically, she argues that Diamanti had no authority to act as a police officer outside his territorial jurisdiction. To attack the authority of Diamanti to gather evidence in Rhode Island, the defendant relies upon § 14-227b (b). That subsection designates a “police officer” as the one who shall request a chemical analysis after advising an arrestee of the choices available under the “implied consent” statute and who also must advise the arrestee of the right to contact an attorney and who must make the appropriate related notations upon the records of the police department. The defendant strictly interprets the term “police officer” and maintains that because Diamanti lacked any official capacity to conduct a postarrest investigation outside of his territorial jurisdiction he was not acting as a “police officer” when he advised the defendant and obtained samples of her blood.

“Although we recognize the fundamental principle that criminal statutes are to be construed strictly, ‘it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent.’ ” State v. Dolphin, 203 Conn. 506, 523-24, 525 A.2d 509 (1987), quoting State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985). “It is also a rule of statutory construction that those who promulgate statutes or rules do not intend to promulgate statutes or rules that lead to absurd consequences or bizarre results.” State v. Siano, 216 Conn. 273, 278, 579 A.2d 79 (1990), and cases cited therein. We, therefore, reject the defendant’s construction of the statute because it leads to the absurd result that mere fortuity would bar the progress of the criminal prosecution against her in any jurisdiction despite the overwhelming evidence of the existence of probable cause to believe that she had committed serious violations of the law.

Because the violations occurred in Connecticut, the courts of Rhode Island would have had no jurisdiction over the defendant’s offenses. Gilbert v. Steadman, 1 Root (Conn.) 403 (1792); A. Spinella, Connecticut Criminal Procedure (1985) § 3A, pp. 18-19. The extent of a sovereignty’s jurisdiction to enforce its civil and criminal laws has long been viewed as being coterminous with its territory. See Pennoyer v. Neff, 95 U.S. 714, 722, 24 L. Ed. 565 (1878). “It is a general rule of universal acceptation that one State or sovereignty cannot enforce the penal laws of another, nor punish offenses committed in and against another State or sovereignty.” State v. Volpe, 113 Conn. 288, 294, 155 A. 223 (1931); Taintor v. Taylor, 36 Conn. 242, 252-53 (1869); see also The Antelope, 23 U.S. (10 Wheat.) 337, 344, 6 L. Ed. 268 (1825) (Marshall, C. J., with, inter alios, Story, J.); J. Story, Conflict of Laws (1834) § 620; 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 393. If, therefore, the defendant cannot be effectively prosecuted in Connecticut, she cannot be prosecuted at all.

Even substantive rights based on foreign laws, however, have been given extraterritorial effect. Broderick v. McGuire, 119 Conn. 83, 101-102, 174 A. 314 (1934). Courts have also held that even a criminal statute may have extraterritorial effect. See, e.g., Strassheim v. Daily, 221 U.S. 280, 284, 31 S. Ct. 558, 55 L. Ed. 735 (1910) (upholding prosecution in Michigan for acts of bribery and obtaining public money under false pretenses by defendant in Illinois, offenses by their nature peculiarly injurious to the state of Michigan); see also People v. Tyler, 7 Mich. 161, 221 (1859) (“every sovereignty has the right, subject to certain restrictions, to protect itself from, and to punish as crimes, certain acts which are peculiarly injurious to its rights or interests, or those of its citizens, wherever committed”). (Emphasis in original.) The Model Penal Code, moreover, expands the concept of territorial jurisdiction to include a variety of interstate activities. See, e.g., 1 American Law Institute, Model Penal Code and Commentaries (1985) § 1.03 (providing that a state has jurisdiction over any crime in which at least one element of the crime occurred within the state).

Provided that due process is accorded to the accused, we need only balance the legitimate interests of the adjoining sovereignties to determine whether an extraterritorial police investigation implicates protections normally associated with the territorial concept of jurisdiction. In light of Rhode Island General Law § 12-7-16, which authorizes “any one” to arrest or to seize evidence after the commission of “any offense,” and Rhode Island General Law § 12-8-3, which authorizes peace officers from other states who enter Rhode Island in fresh pursuit to make arrests, we discern no interest of Rhode Island that was violated by the taking of blood samples that must be balanced against Connecticut’s statutory scheme reflecting an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers. See State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990); Quinnett v. Newman, 213 Conn. 343, 350 n.1, 568 A.2d 786 (1990) (Peters, C. J., dissenting); State v. Boucher, 207 Conn. 612, 617-18, 541 A.2d 865 (1988); Shore v. Stonington, 187 Conn. 147, 162 n.2, 444 A.2d 1379 (1982) (Peters, C. J., dissenting); Nelson v. Steffens, 170 Conn. 356, 364, 365 A.2d 1174 (1976).

“As a general rule, a police officer acting outside his or her jurisdiction does not act in his or her official capacity and does not have any official power to arrest.” State v. Slawek, 114 Wis. 2d 332, 335, 338 N.W.2d 120 (1983). That does not mean, however, that the results of tests to determine intoxication administered by an officer outside of the officer’s territorial jurisdiction are not admissible in court as evidence. People v. Rowe, 128 Ill. App. 3d 721, 471 N.E.2d 578 (1984).

It is ludicrous to suggest that, because Diamanti was sensitive to the defendant’s medical needs in conducting his investigation of the accident, the results of that investigation must now be suppressed. Diamanti commendably did not insist that the defendant be transported to one of the more distant Connecticut hospitals for the taking of the blood samples because “the dictates of public policy require . . . that police officers who have a citizen in their lawful custody be not deterred from acting to protect the well-being of such person, particularly in circumstances arising out of an emergency . . . .” Cioci v. Santos, 99 R.I. 308, 315, 207 A.2d 300 (1965). Diamanti deferred instead to the judgment of emergency medical personnel who had decided to transport the injured defendant to the closest hospital, which happened to be located in Rhode Island. In similar circumstances, courts of other states have held that the fact that evidence had been gathered outside an officer’s territorial jurisdiction does not require suppression of the evidence. State v. Locke, 418 A.2d 843 (R.I. 1980) (police officer was justified in transporting defendant outside of the jurisdiction and properly conducted a breathalyzer test). “The transport of defendant across State lines was merely fortuitous and should not work to clear defendant of the charges.” People v. Preston, 205 Ill. App. 3d 35, 42, 563 N.E.2d 80 (1990) (officer lawfully crossed state line in order to provide Illinois implied consent warning for purpose of obtaining blood test to check blood alcohol level of motorist who had been transported to Iowa hospital); see also State v. Griffiths, 113 Idaho 364, 369-70, 744 P.2d 92 (1987) (officer outside territorial limits of his authority could request motorist to submit to blood alcohol content test in accordance with the Idaho implied consent statute); State v. Torgerson, 453 N.W.2d 698 (Minn. 1990) (Minnesota officer properly arrested and administered sobriety tests to defendant after ambulance personnel had transported defendant to a nearby North Dakota hospital); State v. Steinbrunn, 54 Wash. App. 506, 512, 774 P.2d 55 (1989) (defendant, injured in car accident in Washington, transported to Oregon hospital where Washington state trooper arrested him while he lay unconscious and ordered nurse to draw blood samples; held that Washington officer acted lawfully).

We find nothing in the language or legislative history of § 14-227b to suggest that the legislature intended that a police officer should endanger the life of an arrestee by contravening the judgment of emergency medical personnel and requiring them to transport the arrestee to a more distant hospital so that the officer may gather evanescent evidence on Connecticut soil. The United States Supreme Court has stated that “the individual’s right to immunity from such invasion of the body as is involved in a properly safeguarded blood test is far outweighed by the value of its deterrent effect due to public realization that the issue of driving while under the influence of alcohol can often by this method be taken out of the confusion of conflicting contentions.” Breithaupt v. Abram, 352 U.S. 432, 439-40, 77 S. Ct. 408, 1 L. Ed. 2d 448 (1957).

The defendant argues, however, that Diamanti was without authority to request an evidentiary test because he ceased to be a “police officer” for purposes of § 14-227b when he entered Rhode Island. We disagree. “It would be absurd to allow an intrusive measure such as an arrest and, yet, prohibit the lesser intrusion of requesting a blood-alcohol test. Absurd or unreasonable consequences must be avoided when construing statutes.” State v. Griffiths, supra, 369. We find no justification in law or in reason to conclude that the Rhode Island state line, crossed to accommodate the medical needs of an accident victim, constitutes an impenetrable barrier to the introduction of evidence of test results from blood obtained by a Connecticut police officer with the consent of a defendant who had been lawfully arrested. Diamanti, although bereft of some of his statutory and common law authority outside of Connecticut and the municipality that employed him, did not cease to be a Connecticut “police officer” for the purposes of § 14-227b when he crossed the Rhode Island border.

Accordingly, we conclude that Diamanti’s actions were lawful, as well as reasonable, and that the trial court properly denied the defendant’s motion to suppress the evidence of test results from blood tests obtained in Rhode Island.

The judgment of the Appellate Court is affirmed.

In this opinion Borden and Santaniello, Js., concurred.

Katz, J.,

with whom Berdon, J., joins, dissenting. Because I believe that General Statutes § 14-227b (b) authorizes only police officers to order intoxication tests and that Officer Diamanti ceased to have the authority of a police officer when he crossed the Rhode Island border, I respectfully dissent. The state introduced the results of the defendant’s blood test into evidence to prove intoxication pursuant to General Statutes § 14-227b (b). Section 14-227b (b) grants to police officers the authority to request a blood, breath or urine test to determine if a driver is intoxicated. Unlike the cases cited by the Appellate Court, as well as those referenced in footnote 19 of the majority opinion, which provide that a police officer may make arrests as a private citizen, § 14-227b (b) permits only a police officer to perform under its aegis.

Enacted in 1963, § 14-227b has been frequently-amended. In 1981, the statute was amended to require the police officer making the arrest to report the operator’s refusal to submit to a blood test. Public Acts 1981, No. 81-446. The statute was amended in 1983 to enable the police officer to determine whether to administer the breath or urine test to the driver who has refused or is unable to submit to a blood test. This amendment further required that the police officer advise the driver that evidence of his refusal to submit to a test will be admissible and may be used against him in a criminal prosecution and to make a report that he had so informed the driver. Public Acts 1983, No. 83-534. In 1985, Public Acts 1985, No. 85-596 amended subsection (b) to add the requirement of affording the operator a reasonable opportunity to telephone an attorney prior to performance of the test. Each of these amendments, as well as others less central to the claim before this court, makes significant demands on the law enforcement officer with serious ramifications to the operator. See Volck v. Muzio, 204 Conn. 507, 511, 529 A.2d 177 (1987). Accordingly, the results of these tests can be introduced into evidence pursuant to General Statutes § 14-227b (b) only if they are obtained by a police officer.

When Diamanti crossed the Connecticut border into Rhode Island, he no longer possessed the authority to act as a police officer. The Connecticut police generally have no authority to enforce Connecticut laws beyond this state’s boundaries. See General Statutes § 7-148 (c) (4) (A) (authorizing municipalities to provide police protection within the limits of that municipality); General Statutes § 29-7 (providing that “[a]ll state policemen shall have, in any part of the state, the same powers with respect to criminal matters and the enforcement of the law relating thereto as . . . policemen . . . have in their respective jurisdictions”). As the majority recognized, “[a]s a general rule, a police officer acting outside his or her jurisdiction does not act in his or her official capacity . . . .” State v. Slawek, 114 Wis. 2d 332, 335, 338 N.W.2d 120 (1983); see also People v. Vigil, 729 P.2d 360, 365-66 (Colo. 1986); State v. Hodgson, 57 Del. 383, 385, 200 A.2d 567 (1964); State v. Hart, 149 Vt. 104, 106, 539 A.2d 551 (1987). The Connecticut legislature has enacted only one pertinent exception to this general rule. General Statutes § 54-156 permits out-of-state police officers to retain their authority only to the extent that the officers are pursuing a fleeing felon into Connecticut in order to make an arrest and that the officers’ state affords reciprocity. The Rhode Island legislature also has enacted a statute that allows out-of-state police officers to retain their authority as police officers to the extent that the officers are pursuing a fleeing felon into Rhode Island in order to make an arrest. Since it is undisputed that the defendant in this case was arrested in Connecticut, this statute does not apply to this case. Neither the Connecticut nor the Rhode Island legislature has recognized any other exceptions to the rule that police officers have no authority to act as police officers outside of their state. Cf. Idaho Code § 67-2337 (b) (“[c]ities or political subdivisions may enter into mutual assistance compacts with other cities or political subdivisions ... of states immediately adjacent”).

The majority nevertheless reasons that because Diamanti behaved reasonably in “allowing” the defendant to be taken to a Rhode Island hospital and not insisting that she be transported to a more distant Connecticut hospital, the state should not be penalized. This position, which at first blush appears sympathetic, disintegrates upon slightly closer scrutiny. First, Diamanti was obligated to defer to the judgment of the emergency medical personnel if it was in the best interest of the defendant’s health and well-being. See State v. Torgerson, 453 N.W.2d 698 (Minn. 1990); State v. Locke, 418 A.2d 843, 847 (R.I. 1980) (“public policy require[s] . . . that police officers who have a citizen in their lawful custody be not deterred from acting to protect the well-being of such person, particularly in circumstances arising out of an emergency”). Second, if the state is penalized as a result of its inability to rely on § 14-227b (b), it is solely as a result of its own misjudgment.

The defendant’s blood was drawn and tested pursuant to routine medical treatment at the hospital in Rhode Island. The results of that test could have been the subject of a search and seizure warrant prepared through proper channels and could then have been introduced into evidence. Because the state did not pursue this other avenue, but instead chose to help itself to the defendant’s blood test, the results of that test were suppressed at trial. This left the state with § 14-227b (b) only upon which to rely. That the state committed what I believe to be a fatal mistake in its eagerness does not make strict adherence to the statute upon which it is forced to rely “absurd” or unworkable.

The majority cites to a few cases to support the position that a police officer, acting as a private citizen, can gather evidence outside his territorial jurisdiction. That is not the issue. As a private citizen, Diamanti was free to gather evidence within the constraints of the laws of Rhode Island. But as a private citizen he could not order intoxication tests pursuant to § 14-227b (b). As a police officer, Diamanti could have exercised his authority as a Connecticut police officer extraterritorially only if there was explicit legislation enabling him to act in Rhode Island. No such extraterritorial legislation exists.

The cases cited by the majority to support their conclusion that Diamanti had the authority to act as a police officer in Rhode Island are distinguishable. In People v. Preston, 205 Ill. App. 3d 35, 563 N.E.2d 80 (1990), the issue of the police officer’s authority to act as a law enforcement officer outside his state territory was not raised; the only issue placed before the court was whether a lawful arrest preceded the request for the blood test. In State v. Steinbrunn, 54 Wash. App. 506, 774 P.2d 55 (1989), the court reviewed the conduct of a Washington police officer who followed an individual being transported by ambulance to an Oregon hospital and then arrested the person and ordered the drawing of blood samples. The court concluded, however, that the Uniform Act on Fresh Pursuit enabled the officer to arrest the person in a foreign jurisdiction. Moreover, the blood test was not specifically required by statute to have been ordered by a law enforcement officer. Id., 512.

In both State v. MacDonald, 260 N.W.2d 626 (S.D. 1977), and State v. Griffiths, 113 Idaho 364, 744 P.2d 92 (1987), the courts were presented with the issue that is presently before this court. Police officers, acting outside of their jurisdictions, administered tests that only law enforcement officers could administer by statute. In concluding that the tests were admissible, neither court relied upon anything other than a theory that whatever made sense should prevail. Acting in a summary fashion without benefit of analysis, both courts acknowledged that the police officers were private citizens when they made the arrests in neighboring jurisdictions, but upheld the introduction into evidence of the test results despite the fact that only law enforcement officers could administer the tests pursuant to the statute.

The majority obviates the jurisdiction issue by relying on cases that allowed law enforcement officers to act outside of their jurisdiction because private citizens could do so. The legislature has explicitly provided that only a police officer can act pursuant to General Statutes § 14-227b (b). The majority does not take issue with this statute or its plain meaning. Nor does the majority quarrel with the body of law or legislation that precludes a Connecticut officer from acting as a police officer in another state. Nevertheless, it has carved out an exception in derogation of this law without, in my opinion, authority or sufficient justification.

I respectfully dissent.

       “[General Statutes] Sec. 53a-60d. assault in the second degree with a motor vehicle: class D felony, (a) A person is guilty of assault in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes serious physical injury to another person as a consequence of the effect of such liquor or drug.
      “(b) Assault in the second degree with a motor vehicle is a class D felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”
      General Statutes § 14-227a (a) provides: “operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       The one year period of probation imposed on the defendant included the following special conditions: no operation of a motor vehicle, performance of community service, alcohol counseling and treatment.

       We granted certification to appeal on the following issue: “Does a Connecticut police officer who has made a valid arrest in this state have the authority to accompany the arrested person to Rhode Island and there to conduct sobriety and blood tests with the consent of the arrested person?” State v. Stevens, 221 Conn. 926, 608 A.2d 691 (1992). In her brief and before this court, the defendant limited her argument to the question of the authority of the police officer to request the two blood samples on which tests were conducted. For that reason and because we conclude that the officer had the authority to request the blood samples, a request that required a greater intrusion, we do not separately analyze the authority of the officer extraterritorially to conduct sobriety tests.

       “The Rhode Island hospital is about five to ten minutes from the accident scene. The nearest medical facilities in Connecticut, Lawrence and Memorial Hospital in New London, and Backus Hospital in Norwich, are about twenty-five to thirty minutes away.” State v. Stevens, 26 Conn. App. 805, 808 n.1, 603 A.2d 1203 (1992).

       “A gaze nystagmus test is a method of detecting whether a person is under the influence of alcohol by observing the movement of the eyes. State
        v. Henderson, 114 Idaho 293, 302 n.1, 756 P.2d 1057 (1988) (Walters, J., pro tem., dissenting).” State v. Stevens, 26 Conn. App. 805, 808 n.2, 603 A.2d 1203 (1992).

       “Diamanti charged her with operating a motor vehicle under the influence of alcohol in violation of General Statutes § 14-227a. Prior to trial, by way of an amended information, the state added the charge of assault in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-60d.” State v. Stevens, 26 Conn. App. 805, 808 n.3, 603 A.2d 1203 (1992).

        “Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).” State v. Stevens, 26 Conn. App. 805, 808 n.4, 603 A.2d 1203 (1992).

       “Diamanti had the defendant recite the alphabet and perform a finger count test.” State v. Stevens, 26 Conn. App. 805, 808 n.5, 603 A.2d 1203 (1992).

       “See General Statutes § 14-227b.” State v. Stevens, 26 Conn. App. 805, 809 n.6, 603 A.2d 1203 (1992).

       See footnote 1.

       General Statutes § 14-227b (b) provides: “If any such person, having been placed under arrest for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and thereafter, after being apprised of his constitutional rights, having been requested to submit to a blood, breath or urine test at the option of the police officer, having been afforded a reasonable opportunity to telephone an attorney prior to the performance of such test and having been informed that his license or nonresident operating privilege will be suspended in accordance with the provisions of this section if he refuses to submit to such test or if he submits to such test and the results of such test indicate that at the time of the alleged offense the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight, and that evidence of any such refusal shall be admissible in accordance with subsection (f) of section 14-227a and may be used against him in any criminal prosecution, refuses to submit to the designated test, the test shall not be given; provided, if the person refuses or is unable to submit to a blood test, the police officer shall designate the breath or urine test as the test to be taken. The police officer shall make a notation upon the records of the police department that he informed the person that his license or nonresident operating privilege would be suspended if he refused to submit to such test or if he submitted to such test and the results of such test indicated that at the time of the alleged offense the ratio of alcohol in his blood was ten-hundredths of one per cent or more of alcohol, by weight.”

       Many of the defendant’s assertions in her brief appear to imply a claim that the evidence collected in Rhode Island was obtained in violation of her right to due process. Because, as the defendant concedes, however, the blood samples were not drawn until after Diamanti had advised her of her Miranda rights, had informed her of Connecticut’s implied consent statute and had provided her with the opportunity to contact an attorney, we conclude that the evidence gathering in Rhode Island did not violate the defendant’s due process rights. See People v. Rowe, 128 Ill. App. 3d 721, 724-25, 471 N.E.2d 578 (1984) (although the police officers had no authority to arrest the defendant outside of their jurisdiction, evidence of breathalyzer test was admissible provided that the evidence was voluntarily given after receiving Miranda warnings). We did not certify and do not here decide the case in which consent is lacking.

       The parties concede that Rhode Island police officers could not have administered the tests pursuant to Connecticut General Statutes § 14-227a.

       In the aftermath of International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945), many states adopted “long arm” statutes in order to bring within the civil jurisdiction of forum courts persons involved in specified events or transactions that could be regarded as providing “minimum contacts” with the forum state. See, e.g., General Statutes § 52-59b (a); see also P. Kurland, “The Supreme Court, the Due Process Clause and the In Personam Jurisdiction of State Courts,” 25 U. Chi. L. Rev. 569 (1958); note, “Transient Jurisdiction is Here to Stay: Burn-ham v. Superior Court of California, ” 23 Conn. L. Rev. 1125, 1131-47 (1991). Subsequently, California and other states adopted long arm civil statutes that reach as far as their state constitutions and the federal constitution permit. See Cal. Civ. Proc. Code § 410.10 (Deering 1991). For an example of a long arm penal statute that mirrors the California approach, see Georgia Code Ann. § 17-2-1 (a) (1990), which provides: “It is the policy of this state to exercise its jurisdiction over crime and persons charged with the commission of crime to the fullest extent allowable under, and consistent with, the Constitution of this state and the Constitution of the United States.”

       See footnote 12.

       Rhode Island General Law § 12-7-16 provides: “The authority given to any one to arrest any person or seize any thing, while such person is actually engaged or such thing is actually used or employed in the commission of any offense, shall not be so construed as to prevent, if not so arrested or seized, the arrest of such person or the seizure of such thing after the commission of such offense, upon due process of law.”

       Rhode Island General Laws § 12-8-3 provides: “Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in close pursuit, and continues within this state in such close pursuit, of a person in order to arrest him on the ground that he has committed a felony in such other state, shall have the same authority to arrest and hold in custody such person, as members of a duly organized state, county or municipal peace unit of this state have, to arrest and hold in custody a person on the ground that he has committed a felony in this state.”

       The defendant neither disputes that the arrest took place in Connecticut nor contends that her arrest was otherwise illegal.

       Extraterritorial arrests by police officers have been upheld when made under circumstances that authorize a citizen’s arrest. See State v. Hodgson, 57 Del. 383, 200 A.2d 567 (1964); People v. O’Connor, 167 Ill. App. 3d 42, 44, 520 N.E.2d 1081 (1988); State v. O’Kelly, 211 N.W.2d 589, 595 (Iowa 1973), cert. denied, 417 U.S. 936, 94 S. Ct. 2652, 41 L. Ed. 2d 240 (1974); State v. Shienle, 218 Kan. 637, 642-43, 545 P.2d 1129 (1976); State v. Bickham, 404 So. 2d 929, 932 (La. 1981); Wright v. State, 58 Md. App. 447, 453-54, 473 A.2d 530 (1984); Commonwealth v. Gullick, 386 Mass. 278, 283, 435 N.E.2d 348 (1982); State v. McDole, 734 P.2d 683, 688 (Mont. 1987); State v. Baton, 488 A.2d 696, 700 (R.I. 1985); State v. MacDonald, 260 N.W.2d 626, 627 (S.D. 1977).
      At common law, a sheriff could legally retake a prisoner who had escaped into another jurisdiction. Pearl v. Rawdin, 5 Day (Conn.) 244, 249-50 (1812), and cases cited therein. “When an officer holds any person a prisoner in legal custody, on arrest, and the prisoner escapes by force, or otherwise, against his will, the officer has a right to his body, and the power to retake him, at any place to which he may abscond. It is a matter of no consideration, whether his original writ could have been legally served within the jurisdiction, in which he retakes him; for he retakes him, not by that writ, but by virtue of the hold he had on him by the arrest.” Id., 249.

       In State v. MacDonald, 260 N.W.2d 626 (S.D. 1977), the court reviewed an extraterritorial arrest by a police officer and held that the officer had the authority to make the arrest as a private citizen. The defendant claimed further that the officer could not request chemical testing for intoxication because the implied consent statute required that the testing be administered at the direction of a law enforcement officer. The court held that the policeman was a law enforcement officer for the purposes of the implied consent statute. Id., 628.

       See footnote 11 of the majority opinion.

       In Volck v. Muzio, 204 Conn. 507, 511, 529 A.2d 177 (1987), we held that only certain violations of General Statutes § 14-227b (b) impact the administrative license suspension hearing provided in § 14-227b (d). As this court noted in Weber v. Muzio, 204 Conn. 521, 523, 528 A.2d 828 (1987), however, if a criminal prosecution is involved, as in this case, noncompliance with the requirements of § 14-227b (b) can have a significant impact on the use of the evidence of the results of the intoxication tests or the refusal to submit to these tests.

       General Statutes § 54-156 provides in pertinent part: “(a) Any member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in fresh pursuit, and continues within this state in such fresh pursuit, of a person, in order to arrest him on the ground that he is believed to have committed a felony in such other state, shall have the same authority to arrest and hold such person in custody as has any member of any duly organized state, county or municipal peace unit of this state to arrest and hold in custody a person on the ground that he is believed to have committed a felony in this state. . . .
      “(f) The provisions of this section shall apply only to those states which by their laws grant similar rights to the duly constituted officers of this state.”

       The state has also enacted an intrastate exception; General Statutes § 54-lf (c); that allows police officers to “pursue the offender outside of their respective precincts into any part of the state in order to effect the arrest.” See State v. Miller, 29 Conn. App. 207, 614 A.2d 1229, cert. granted, 224 Conn. 914, 915, 617 A.2d 170 (1992).

       Rhode Island General Law § 12-8-3 provides that “[a]ny member of a duly organized state, county or municipal peace unit of another state of the United States who enters this state in close pursuit, and continues within this state in such close pursuit, of a person in order to arrest him on the ground that he has committed a felony in such other state, shall have the same authority to arrest and hold in custody such person, as members of a duly organized state, county or municipal peace unit of this state have, to arrest and hold in custody a person on the ground that he has committed a felony in this state.”

       There is a common law rule that allows citizens to make an arrest. See Commonwealth v. Gullick, 386 Mass. 278, 282, 435 N.E.2d 348 (1982); State v. Baton, 488 A.2d 696, 700 (R.I. 1985); see also 1 Restatement (Second), Torts § 121, comment a. The majority reasons (p. 742) that even if Diamanti did not have the authority of a police officer, but could make the arrest as a private citizen, “ ‘[i]t would be absurd to allow an intrusive measure such as an arrest and, yet, prohibit the lesser intrusion of requesting a blood alcohol test.’ ” This court has recognized a distinction in consequence, however, between unlawfully seizing a person and seizing evidence. “[A]n illegal arrest will not bar a subsequent prosecution or void a resulting conviction.” State v. Fleming, 198 Conn. 255, 259, 502 A.2d 886, cert. denied, 475 U.S. 1143, 106 S. Ct. 1797, 90 L. Ed. 2d 342 (1986). Rather, any evidence obtained from the illegal arrest may be suppressed. Id., 261. Thus, I find unpersuasive the majority’s claim that there is no reason to distinguish between an arrest and gathering of evidence from the arrestee.


author: Peters, C. J.

text:
    Michael J. Madigan v. Michelle A. Madigan
    (14574)
    Peters, C. J., Callahan, Borden, Berdon and Katz, Js.
    Argued December 1, 1992
    decision released March 2, 1993

      Louis Kiefer, for the appellant (plaintiff).

      Emily J. Moskowitz, with whom was Robert J. Kor, for the appellee (defendant).

      Gaetano Ferro filed a brief for the American Academy of Matrimonial Lawyers as amicus curiae.
   Peters, C. J.

The only issue in this appeal is whether a temporary custody order entered in the course of dissolution proceedings is a final judgment for the purpose of appellate review. The plaintiff, Michael J. Madigan, brought a dissolution action pursuant to General Statutes § 46b-45 to terminate his marriage to the defendant, Michelle A. Madigan. Pending a trial on the merits, the trial court entered an order pursuant to General Statutes § 46b-56 for temporary custody and visitation of two of the parties’ three minor children. The plaintiff appealed the order to the Appellate Court, which, sua sponte, dismissed the appeal on the ground that it was not from a final judgment. We granted the plaintiffs petition for certification to review this issue, and now reverse the Appellate Court’s dismissal of his appeal.

The trial court’s memorandum of decision accompanying the temporary order and the record reveal the following. The parties were married on December 17, 1988. The plaintiff filed a dissolution action on August 27, 1991, alleging extreme cruelty, adultery and irretrievable marital breakdown. The defendant filed a cross complaint for dissolution, also alleging extreme cruelty, as well as nonsupport of the parties’ children, physical and psychological abuse, and the irretrievable breakdown of the marriage. See General Statutes § 46b-40.

Both parties moved the trial court to enter temporary orders for custody and visitation. 6The plaintiff asked the court to order joint custody, with each parent having the children for alternating three day periods, while the defendant asked for sole custody, with visitation rights for the plaintiff. After a hearing at which the parties testified concerning their views on custody, of the children, the trial court ordered joint custody of the two children, their primary residence to be with the defendant, as well as a visitation schedule designed to match an existing schedule that the Probate Court had established regarding the third, oldest, child. See footnote 3.

The plaintiff appealed from the trial court’s order of temporary custody, as well as the court’s denial of two earlier pretrial motions. The Appellate Court dismissed the appeal for lack of a final judgment. We granted the plaintiff permission to appeal the issue of the finality of the temporary custody order.

The immediate appealability of temporary custody orders entered in the course of dissolution actions must be determined in accordance with established jurisdictional principles. With the exception of certain statutory rights of appeal that are not relevant here, appellate jurisdiction is limited to appeals from final judgments. See General Statutes §§ 51-197a, 51-199 and 52-263; see also Practice Book § 4000. Interlocutory appeals must, therefore, be dismissed. See, e.g., Melia v. Hartford Fire Ins. Co., 202 Conn. 252, 254, 520 A.2d 605 (1987). Limiting appeals to judgments that are final serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings. See id., 258; E. J. Hansen Elevator, Inc. v. Stoll, 167 Conn. 623, 626, 356 A.2d 893 (1975).

Although the rule requiring an appealable order to be final is well settled, it is difficult to devise a comprehensive definition of what constitutes a final judgment. “It is apparent that there are certain judgments which are undoubtedly final and others that are clearly interlocutory and not appealable. The problem, of course, arises in the gray area between these obvious certainties. . . .” E.J. Hansen Elevator, Inc. v. Stoll, supra, 627. To evaluate those orders that lie in the “gray area,” we have in recent years relied on the standard articulated in State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983). That standard permits the immediate appealability of an order “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.” Id., 31; Success Centers, Inc. v. Huntington Learning Centers, Inc., 223 Conn. 761, 769, 613 A.2d 1320 (1992).

Applying the Curdo standard and its antecedents, we have allowed the immediate appeal of arguably interlocutory orders in a variety of circumstances. See, e.g., Solomon v. Keiser, 212 Conn. 741, 747-48, 562 A.2d 524 (1989) (order opening a judgment if issue raised is power of trial court to open the judgment); Kerite Co. v. Alpha Employment Agency, Inc., 166 Conn. 432, 438, 352 A.2d 288 (1974) (order to inter-plead); Hiss v. Hiss, 135 Conn. 333, 336, 64 A.2d 173 (1949) (order for temporary alimony and support); Wardell v. Killingly, 96 Conn. 718, 722, 115 A. 539 (1921) (order denying mandamus). We have, however, denied the immediate appealability of other orders in civil cases, despite their serious consequences for the litigants. See, e.g., Burger & Burger, Inc. v. Murren, 202 Conn. 660, 667, 522 A.2d 812 (1987) (disqualification of attorney); Melia v. Hartford Fire Ins. Co., supra, 254-59 (discovery orders); see also State v. Parker, 194 Conn. 650, 656-58, 485 A.2d 139 (1984) (denial of motion to dismiss charges pursuant to then existing accelerated rehabilitation statute not immediately appealable, because, even if a defendant had a right to dismissal before trial, the right to dismissal could be vindicated on appeal after trial).

The defendant contends that we have already decided, in Hall v. Hall, 186 Conn. 118, 439 A.2d 447 (1982), that a temporary order of custody is not immediately appealable. We disagree. In Hall, the parties appealed after a final judgment of dissolution. Declining to review the propriety of the trial court’s modification of its temporary custody award by the final decree, we held that the only issue then before us was whether the trial court had abused its discretion “in deciding which parent was the better custodian at the time of the final decree dissolving the marriage.” Id., 123. Our decision in Hall did not purport to address the appealability of the temporary order. To the extent that Hall has any bearing on the present case, it furnishes support for the position of the plaintiff. Because Hall precludes appellate review of the merits of a temporary custody order in any appeal from the final dissolution decree, it suggests that the temporary order satisfies the second Curdo test as an order that “so concludes the rights of the parties that farther proceedings cannot affect them.” State v. Curcio, supra, 31.

Hall furnishes persuasive authority, therefore, for the conclusion that a temporary order of custody is a final judgment for the purpose of an immediate appeal because a parent’s custodial rights during the course of dissolution proceedings cannot otherwise be vindicated at any time, in any forum. In this respect, orders relating to temporary custody closely resemble temporary orders for alimony and support, which we have held, in Hiss v. Hiss, supra, 336, to be immediately appealable. Our reason for considering temporary orders of alimony and support to be “final” was that, once paid by one spouse to another, such sums could not subsequently be recovered on appeal from the final dissolution judgment. Id. This reasoning applies with equal force to temporary custody orders that affect the irreplaceable time and relationship shared between parent and child. It would be anomalous, therefore, to permit the appealability of otherwise nonreviewable orders relating to financial matters and to deny the appealability of orders relating to the personal interaction between a parent and a child.

The defendant maintains, however, that temporary custody orders should not be considered final because interlocutory appeals would interfere greatly with the orderly determination of dissolution actions and would disserve the goal of providing stability for children during the course of the litigation. Regarding the maintenance of dissolution actions, the defendant argues first that a right to immediate appeal of temporary orders of custody will disrupt and delay these actions. The defendant points out that, as an alternative to the resulting delay caused by an immediate appeal, a disappointed parent can seek a change in custody through judicial modification. See General Statutes § 46b-56. Second, she maintains that a conclusion that temporary custody orders are final judgments that may be appealed will sanction appeals of every interlocutory order in a dissolution action. The consequent delays in the proceedings, she asserts, will burden both the courts and the parties. The defendant also emphasizes the importance of ensuring a stable and secure environment for children affected by the pendency of a dissolution proceeding. Such children are at psychological risk when their parents’ pending divorce results in an emotionally precarious and unstable domestic environment. See Yontef v. Yontef, 185 Conn. 275, 293, 440 A.2d 899 (1981). The defendant maintains that allowing appeals of the trial court’s temporary orders, otherwise “permanent” until the finalization of the dissolution, may make more tumultuous an already stressful event in the lives of children.

The plaintiff, to the contrary, urges this court to recognize the importance of the parent-child relationship and the irreparable consequences of a temporary custody order for that relationship. A lost opportunity to spend significant time with one’s child cannot be replaced by a subsequent order of custody as part of an ultimate dissolution judgment. A contested custody case is often lengthy and typically involves, as does this case, a family relations study conducted over time in order to assist the court in its final decision. To deny immediate relief to an aggrieved parent interferes with the parent’s custodial right over a significant period in a manner that cannot be redressed by a later appeal. Furthermore, although § 46b-56 allows a party to move for modification even of temporary custody orders, such modification may not be an adequate substitute for the right to file an appeal in order to vindicate evidentiary as well as substantive rights implicated by the trial court’s order. See General Statutes § 46b-56; cf. Theonnes v. Theonnes, 181 Conn. 111, 114, 434 A.2d 343 (1980). Finally, a temporary custody order may have a significant impact on a subsequent permanent custody decision. Especially if both parents would be suitable custodians, an order of temporary custody may establish a foundation for a stable long-term relationship that becomes an important factor in determining what final custodial arrangements are in the best interests of the child. See General Statutes § 46b-56; see also 2 J. McCahey et al., Child Custody and Visitation Law and Practice (1992) § 8.01 [2]. Accordingly, not only is any impropriety in granting an initial order for temporary custody not subsequently reversible, but it may also have an adverse spillover effect on the ultimate determination of custody.

Persuaded by the plaintiffs arguments, we conclude that temporary custody orders are immediately appeal-able because an immediate appeal is the only reasonable method of ensuring that the important rights surrounding the parent-child relationship are adequately protected. Our holding is not intended to signal that a trial court must stay dissolution proceedings upon the filing of such an appeal. Orders relating to dissolution actions have explicitly been excluded from the automatic stay provisions of Practice Book § 4046, indicating that in these actions delay is likely to dis-serve the interests of the parties. That rule applies here. Furthermore, we do not anticipate a sudden influx of appeals to exacerbate resolution of disputed dissolution proceedings. The standard of review in an appeal of a custody decision remains abuse of discretion; General Statutes § 46b-56; Hall v. Hall, supra, 123-24; and our appellate decisions emphasize that an abuse of discretion leading to reversal is rare.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 46b-45 provides in relevant part: “(a) A proceeding for annulment, dissolution of marriage or legal separation shall be commenced by the service and filing of a complaint as in all other civil actions in the superior court. . . .”

       General Statutes § 46b-56 provides in relevant part: “superior court ORDERS RE CUSTODY AND CARE OF MINOR CHILDREN IN ACTIONS FOR DISSOLUTION OF MARRIAGE, LEGAL SEPARATION AND ANNULMENT. . . .(a)In any controversy before the superior court as to the custody or care of minor children, and at any time after the return day of any complaint under section 46b-45, the court may at any time make or modify any proper order regarding the education and support of the children and of care, custody and visitation ....
      “(b) In making or modifying any order with respect to custody or visitation, the court shall be guided by the best interests of the child, giving consideration to the wishes of the child if he is of sufficient age and capable of forming an intelligent preference, provided in making the initial order the court may take into consideration the causes for dissolution of the marriage or legal separation if such causes are relevant in a determination of the best interests of the child.”

       The parties have three children, only two of whom are subject to the orders of the trial court presiding over this action. The oldest child, bom January 20,1986, was placed in the custody of a third party, pursuant to an earlier Probate Court order, and is not subject to the jurisdiction of the trial court. The two other children are a daughter bom on July 19, 1989, and a son born on June 22, 1990.

       The order on the plaintiffs petition for certification to appeal limited the appeal to the foEowing question: “Is an appeal from pendente Ete orders of custody and visitation, entered in a dissolution of marriage action, of such finality as to permit appeEate review?” Madigan v. Madigan, 223 Conn. 908,612 A.2d 55 (1992). Our order did not encompass immediate appeEate review of orders of visitation unrelated to custody.

       The defendant also moved for an order of support and alimony pendente lite. The trial court subsequently ordered the plaintiff to pay the defendant $68 per week for child support, and concurrently to reduce a support arrearage of $2148 at a rate of $5 per week. This portion of the trial court’s order is not at issue in this appeal.

       The plaintiff sought to appeal the trial court’s denial of (1) a motion to strike the defendant’s motions for custody, child support and alimony, and (2) a motion to recuse itself because of certain preliminary orders already entered in favor of the defendant. These claims are not within the certified question, and we do not address them here. Subsequent to the trial court’s temporary order for custody and visitation, the plaintiff also filed a motion to stay the trial court proceedings, pursuant to Practice Book § 4047, pending resolution of this appeal. The trial court denied the motion, and the plaintiff has not sought review of that order.

       Because we determine that an order of temporary custody is a final judgment on the basis of its effect on the rights of the plaintiff, we need not decide whether it would merit immediate appeal under the first Curdo test, as a “separate and distinct proceeding.”

       A final dissolution order of support is generally prospective, and cannot address antecedent temporary orders. See Litvaitis v. Litvaitis, 162 Conn. 540, 548-49, 295 A.2d 519 (1972).

       An inquiry into the law of other jurisdictions supports our conclusion that temporary custody orders are immediately appealable. Although a number of jurisdictions have held that such orders are not immediately appeal-able, emphasizing the broad rule that interlocutory orders must await the end of an action to be appealed; see, e.g., Chancellor v. Chancellor, 282 Ark. 227, 230, 667 S.W.2d 950 (1984); In re Temporary Custody of Five Minors, 105 Nev. 441, 443, 777 P.2d 901 (1989); Craft v. Craft, 579 S.W.2d 506, 508 (Tex. App. 1979); others recognize that temporary orders may be appealed pursuant to local rules recognizing interlocutory appeals. See, e.g., Sanchez v. Walker County Department of Family & Children Services, 235 Ga. 817, 818, 221 S.E.2d 589 (1976); In re Marriage of Kitchen, 126 Ill. App. 3d 192, 194-95, 467 N.E.2d 344 (1984). Likewise, a limited number of jurisdictions recognize temporary custody orders as final for the purpose of immediate appeal. See, e.g., In re Interests of L. W., 241 Neb. 84, 486 N.W.2d 486, 495 (1992); In re Murray, 52 Ohio St. 3d 155, 159-61, 556 N.E.2d 1169 (1990). On balance, we find that the rationale for allowing immediate appeals adopted in the latter jurisdictions, in conjunction with the practice in other jurisdictions that allow these appeals by special interlocutory appeals rules, to be more persuasive than the traditional reasons of judicial economy generally offered as a justification to adhere to a rule of nonappealability.

       Practice Book § 4046 provides in relevant part: “[automatic stay of EXECUTION]-IN GENERAL
      “In all actions, except where otherwise provided by statute or other law, proceedings to enforce or carry out the judgment shall be automatically stayed until . . . the final determination of the cause; and, if the case goes to judgment on appeal, until ten days after the decision is announced . . . . This section shall not apply . . . to periodic alimony and support orders, as well as to custody or visitation orders in domestic relations matters.”