Opinion
Nos. CR 04275960T, CR 04-276040-T
May 29, 2008
MEMORANDUM OF DECISION RE MOTION TO DISMISS
I. FACTUAL AND PROCEDURAL BACKGROUND
On November 30, 2007, the defendants, Richard and Janice Anderson, filed a Motion to Dismiss claiming that the prior declaration of a mistrial on July 5, 2007, by the court (Schimelman, J.) had not been based on manifest necessity and, therefore, further prosecution is barred by the double jeopardy clause of the fifth amendment to the United States constitution and article first, §§ 8 and 9, of the Connecticut constitution. The state filed a Request for Additional Hearing and for Findings of Fact regarding the July 5, 2007 proceedings on December 14, 2007. On January 25, 2008, the court (Schimelman, J.) denied that request. On February 14, 2008, the state filed a brief in opposition to the motion to dismiss. The defendants filed a reply brief on March 13, 2008. On April 14, 2008, the state filed a Request to Present Evidence and Testimony During Hearing on Motion to Dismiss. The Motion to Dismiss was thereafter set down for a hearing before this Court on April 18, 2008 and the state's Request was heard on that date and denied.
The issue for this Court's determination on the defendants' Motion to Dismiss is whether the court considered all possible alternatives before the declaration of a mistrial, over the defendants' objection, on the ground of manifest necessity, after the assistant state's attorney became seriously ill during trial.
The following facts are relevant to the disposition of this motion. By way of a Substitute Information, dated May 1, 2007, the defendants have been charged in a three-count information with two counts of the crime of larceny in the first degree, in violation of General Statutes § 53a-122(a)(2) as defined in § 53a-119(1), (2), and (3) and one count of conspiracy to commit larceny in the first degree, in violation of General Statutes §§ 53a-48, 53a-122(a)(2) as defined in § 53a-119(1), (2), and (3). Jury selection commenced on May 2, 2007, continuing for approximately fifteen full days. Six jurors and four alternates were ultimately selected. The jury was sworn and evidence commenced on June 12, 2007. Trial continued until June 22, 2007. During that time, nearly four hundred exhibits were introduced through eight witnesses. On June 24, 2007, the court was informed that the Assistant State's Attorney assigned to this case, John H. Malone, become seriously ill and had to be hospitalized. The court delayed the trial until July 5, 2007, hoping that Malone would be able to return.
General Statutes § 53a-122 provides in relevant part: "(a) A person is guilty of larceny in the first degree when he commits larceny, as defined in section 53a-119, and . . . (2) the value of the property or service exceeds ten thousand dollars . . ."
General Statutes § 53a-119 provides in relevant part: "A person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner. Larceny includes, but is not limited to:
(1) Embezzlement. A person commits embezzlement when he wrongfully appropriates to himself or to another property of another in his care or custody.
(2) Obtaining property by false pretenses. A person obtains property by false pretenses when, by any false token, pretense or device, he obtains from another any property, with intent to defraud him or any other person.
(3) Obtaining property by false promise. A person obtains property by false promise when, pursuant to a scheme to defraud, he obtains property of another by means of a representation, express or implied, that he or a third person will in the future engage in particular conduct, and when he does not intend to engage in such conduct or does not believe that the third person intends to engage in such conduct. In any prosecution for larceny based upon a false promise, the defendants intention or belief that the promise would not be performed may not be established by or inferred from the fact alone that such promise was not performed."
General Statutes § 53a-48 provides in relevant part: "(a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy."
On July 5, 2007, a hearing was held and the state was represented by Supervisory Assistant State's Attorney, John R. Whalen, due to the continued illness of Malone. Prior to the hearing, the court believed, based on information it had received to that date, that the earliest the trial could resume would be August 6, 2007. The court (Schimelman, J.) then spoke with Malone the morning of July 5, 2007, and learned that his condition was going to necessitate further hospitalization, followed by a lengthy period of convalescence. The continuation of the trial until August 6, 2007, was no longer feasible. The court originally intended to poll the jury about a potential September 2007 start date for resuming the trial. The court decided otherwise because the question of whether the trial could resume in September 2007 could not be determined due the seriousness of Malone's illness. Furthermore, the jurors had already been inquiring about scheduling because the state's portion of the trial had been estimated to be about five weeks. The court also found that another attorney would not be able to replace Malone due to the complexity of the case based on his conversation with Whalen and his own observations of the trial thus far.
Specifically, the court (Schimelman, J.) stated: "What I am obviously indicating is that I don't think it's feasible to talk to this jury about a potential September start because that may not even be viable as far as Malone's] availability." (Trial Transcript [Tr], July 5, 2007, p. 4.) The court also stated: "[I]t does not appear that we could start again until probably — and again, I'm estimating . . . probably couldn't start until, at best, sometime into September . . . I used the date of September rather cavalierly because I just don't know how long Mr. Malone, [a]ttorney Malone, is going to be out and how long his convalescence is going to take . . ." (Tr., July 5, 2007, pp. 10-11.)
Specifically, the court (Schimelman, J.) stated: "[W]e have jurors who are already chomping at the bit, so to speak, because of the time constraints that I had originally estimated and because of the fact that these jurors have things that they had planned to do. And certainly, we had not contemplated going into August, much less September, when I discussed with the various panels the time frame that we had originally contemplated." (Tr., July 5, 2007 p. 6.) pp. 6 and 8.)
Specifically, the court (Schimelman, J.) stated: "[B]ased upon my conversation with [a]ttorney Whalen . . . it is not an option, in the state's view, to bring someone in to pick up, so to speak, because of the complexity of this trial; and it certainly is complex. I don't know how many exhibits we have gone through, but I think we're well into the 300s for the state . . . I'm only indicating that based upon what I have seen so far in this trial, it is a complex matter. It requires, as I just indicated, a number of exhibits. We weren't even into the heart of the case, so to speak." (Tr., July 5, 2007, pp. 4-5.)
The court then declared a mistrial because "of the inability to continue [specifically] the manifest necessity of . . . having to do this . . . based upon the totality of the circumstances, meaning the medical condition of [a]ttorney Malone and . . . the lack of the ability to ask another state's attorney to step in because the preparation time . . . would be significant." (Trial Transcript [Tr.], July 5, 2007, pp. 5-6.)
II. DISCUSSION
"The doctrine of double jeopardy is well settled under both the federal and state constitutions. The fifth amendment to the United States constitution provides in relevant part: `[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . .' This clause is applicable to the states through the fourteenth amendment and establishes the federal constitutional standard concerning the guarantee against double jeopardy . . . The protection afforded against double jeopardy under the Connecticut constitution is coextensive with that provided by the constitution of the United States. Although the Connecticut constitution does not include a specific double jeopardy provision, the due process and personal liberty guarantees provided by article first, §§ 8 and 9, of the Connecticut constitution have been held to encompass the protection against double jeopardy. Furthermore, this court has long recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense." (Citations omitted; internal quotations marks omitted.) State v. Kasprzyk, 255 Conn. 186, 191-92, 763 A.2d 655 (2001).
"When a criminal defendant objects to the declaration of a mistrial . . . and the mistrial is declared for reasons that the trial court properly concluded amounted to `manifest necessity,' his right to have his trial completed by his chosen tribunal is no longer protected and the double jeopardy clause does not bar a second trial . . . In construing the double jeopardy clause of the United States constitution in the context of a declaration of a mistrial over a defendant's objection, the seminal decision is United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824). That case enjoys continued vitality . . ." (Citations omitted; internal quotation marks omitted.) State v. Tate, 256 Conn. 262, 277, 773 A.2d 308 (2001); see also Oregon v. Kennedy, 456 U.S. 667, 671-72, 72 L.Ed.2d 416, 102 S.Ct. 2083 (1982); United States v. Sanford, 429 U.S. 14, 15-16, 50 L.Ed.2d 17, 97 S.Ct. 20 (1976); State v. Saunders, 267 Conn. 363, 394, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S.Ct. 2113, 158 L.Ed.2d 722 (2004); State v. Kasprzyk, 255 Conn. 186, 193-94, 763 A.2d 655 (2001); State v. Buell, 221 Conn. 407, 414-15, 605 A.2d 539, cert. denied, 506 U.S. 904, 113 S.Ct. 297, 121 L.Ed.2d 221 (1992).
Justice Story, writing for the United States Supreme Court in Perez, supra, set forth standards for determining when to order a retrial after a mistrial has been declared over a defendant's objection. "We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes . . . But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office." United States v. Perez, supra 29 U.S. 580.
"With respect to construction of the terms `manifest necessity,' a `high degree' of necessity is required before a conclusion may be reached that a mistrial is appropriate, and it is apparent that whether that high degree has been reached is to be answered more easily in some cases than in others . . . Manifest necessity is not amenable to a precise formulation or mechanical application because the high degree of necessity mandated by that phrase can be found in a variety of circumstances." (Citations omitted; internal quotation marks omitted.) State v. Tate, supra, 256 Conn. 277-78.
The defendants argue that the court did not explore all possible alternatives before declaring a mistrial. Specifically, the defendants argue that the court should have polled the jury as to their potential availability to reconvene at a later date. Secondly, the defendants argue that there was no factual showing on whether the incapacitated Assistant State's Attorney was the only lawyer for the state with any familiarity with the matter or whether another state's attorney could prepare as a substitute during a reasonable continuance.
The court clearly took great caution before declaring a mistrial and carefully considered all possible alternatives. The court was not required to poll the jurors as to their availability before declaring a mistrial. Polling the jury would have been futile because there was no date certain for when trial could resume. The court considered polling the jury, but decided otherwise because the contemplated start date may not have even been viable. Malone's condition was serious, and he could not indicate to the court when he would be able to return. No reasonable continuance would have resolved this issue because there was no basis to estimate when Malone would be able to return, if at all. The jury also was concerned about scheduling because the trial was not expected to go into August, much less, September. In a criminal trial, "the interest of the defendant in having his fate determined by the jury first impaneled is itself a weighty one . . . [I]n the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate . . .'Manifest necessity' by definition requires an element of surprise; that is, the reason for the declaration of a mistrial arises or becomes known to the court only after the jury has been sworn and jeopardy has attached." State v. Buell, 221 Conn. 407, 416, 605 A.2d 539 (1992). The court did weigh the defendants' rights before declaration of a mistrial, but under the circumstances it was not feasible to continue the trial and therefore there was no need to poll the jury.
The court (Schimelman, J.) stated: "[T]he Andersons have much invested in this matter as well; and I have certainly taken that into consideration . . . And then learning further about [a]ttorney Malone's condition and the fact that, unfortunately, it is more serious than any of us realized . . . In the court's mind it is not feasible that we continue this trial." (Tr., July 5. 2007, pp. 8-9.)
The defendants' second argument, that the simple representation by the state was insufficient to show that another state's attorney could not replace Malone, lacks merit. The court did inquire as to whether Malone could be replaced but determined from conversations with the supervisory assistant state's attorney that this was not feasible. The court is entitled to credit the state's assertions about the feasibility of replacing Malone. See State v. Michael J., 274 Conn. 321, 335, 875 A.2d 510 (2005) ("[A]ttorneys are officers of the court, and when they address the judge solemly upon a matter before the court, their declarations are virtually made under oath."). Furthermore, the court, in presiding over the proceedings, was well informed about the complexity of the trial, having heard testimony for approximately seven days and having seen nearly four hundred exhibits introduced. The defendants' attorney even stated that, "[k]nowing a trial of this dimension that was projected to be five weeks of presenting of evidence by the state with that many exhibits, it would have been wise had the state got a second lawyer in a case like this." (Tr., July 5, 2007, p. 8.) There was no question concerning the complexity of the case. The court did consider the possibility of a replacement attorney, and there was not one available. Finally, there is simply no authority cited by the defendants for such a proposition nor would administrative feasability provide for such an argument, that the state have "back up counsel" for complex cases.
II. CONCLUSION
The court finds that the mistrial was properly declared by the court (Schimelman, J.) over the defendants' objection, based on manifest necessity, after having considered all possible alternatives and after having weighed the totality of the circumstances. The double jeopardy clause does not bar a second trial. Accordingly, the defendants' Motion to Dismiss is denied.