Opinion
No. CR 02-0563846
January 10, 2011
MEMORANDUM OF DECISION IN RE DEFENDANT'S MOTION TO DISMISS
The issue currently before this court is yet another in the now long line of issues — all dealing with allegations of prosecutorial misconduct and the appropriate remedy for it — that this court and others have been forced to grapple with and to rule upon during the pendency of this case. The instant issue, which eludes simple articulation, stems from the defendant's conviction on charges in two cases jointly tried before a jury that had been improperly instructed that the evidence in each case was "cross-admissible" — that is, the jury erroneously was permitted to consider the evidence in each case collectively if it found that the evidence established a common scheme or plan. After the Supreme Court's reversal of those convictions due to this instructional error; State v. Randolph, 284 Conn. 328 (2007); it was judicially determined on remand that prosecutorial misconduct had occurred during the joint trial and so tainted the presentation of evidence in one of the two joined cases that double jeopardy principles warranted a dismissal of that case. This court is now confronted with the question of whether this prior judicial determination compels the dismissal of the other case as well, even in the absence of any proof that distinct prosecutorial misconduct occurred at the joint trial during the presentation of evidence in that other case. For the reasons set forth below, this court concludes that, under the unique circumstances of this case, such a dismissal is compelled, and accordingly, grants the defendant's motion to dismiss.
Procedural History
In 2004, the defendant was tried under two informations for crimes in connection with two separate incidents. The first information concerned an armed robbery at a Burger King restaurant (the Burger King case). The second information concerned an armed robbery and homicide at Empire Pizza (the Empire Pizza case). The state moved to consolidate the cases for trial, arguing that the "evidence in one case would be admissible in the trial of the other to establish that the defendant had a common scheme or plan to rob fast food restaurants . . ." Id., 335. The defendant objected to the state's motion for joinder, as well as its characterization of the evidence as cross-admissible. Id. After a hearing, the trial court, Koletsky, J., granted the state's request and consolidated the two cases for trial.
It is this information that bears the above-captioned docket number and is the subject of the present motion.
During the presentation of the Empire Pizza evidence at trial, an issue was raised by the defendant concerning the state's pretrial preparation of the sole eyewitness in that case, Wanda Carrasquillo, and her review during that preparation of a photo array which included a photograph of the defendant. The defense challenged the impact that review may have had on the witness' in-court identification of the defendant. The trial court queried the prosecutor with regard to the circumstances surrounding the witness' preparation and in-court identification and, on the basis of the prosecutors' responses, rejected the defendant's claim that prosecutorial misconduct had occurred.
Upon the conclusion of the evidence, the trial court instructed the jury, consistent with the state's theory, that if the jury found that the crimes had been part of common scheme or plan, then it would be permissible to apply the evidence in each case collectively. The defendant objected to the instruction, and took exception to it at the conclusion of the trial court's charge. See id., 336. The jury ultimately found the defendant guilty on all charges arising from both the Burger King and Empire Pizza cases. The defendant was subsequently sentenced to a total effective term of seventy years incarceration, suspended after sixty-five years, followed by five years of probation.
The defendant appealed the verdicts directly to the Connecticut Supreme Court. In his appeal, the defendant raised multiple issues, including a claim that the trial court had improperly allowed the jury to consider the evidence collectively, and a claim of prosecutorial impropriety concerning the pretrial review of the photo array by Carrasquillo and her subsequent in-court identification of the defendant. Finding that the instruction pertaining to the cross-admissibility of evidence was improper and harmful error, the Supreme Court reversed the defendant's convictions in both cases and remanded them for new trials. Because the court's ruling on the instructional error was dispositive, it did not address the merits of the defendant's claim of prosecutorial impropriety. See id., 331 n. 2.
Upon remand, the defendant moved this court to dismiss the charges against him on the ground that double jeopardy principles, as set forth in State v. Colton, 234 Conn. 683 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L.Ed.2d 892 (1996), barred further prosecution because his convictions in the original trial had been secured by prosecutorial impropriety. In support of this claim, the defendant sought to raise the same allegations of prosecutorial impropriety concerning witness Carrasquillo that the trial court had considered and rejected but which the Supreme Court did not address on appeal.
This court heard argument on the defendant's motion to dismiss on April 22, 2009. At the hearing, the original trial prosecutor objected to the motion and the allegations of prosecutorial misconduct set forth within it. Noting that "the record is very clear on what happened" and that the state was "happy to rely on the record" of the first trial for the purposes of the motion to dismiss; Tr., April 22, 2009, p. 28; the prosecutor implicitly assured this court that Judge Koletsky had been fully apprised of the events that had transpired with Carrasquillo.
In a written opinion dated July 16, 2009, this court denied the defendant's motion to dismiss. Significant to the court's ruling at that time was the fact that the defendant had failed to present any new evidence of prosecutorial impropriety that had not previously been considered and rejected by Judge Koletsky. Absent such newly discovered evidence, this court concluded that the doctrine of collateral estoppel barred a reexamination of the defendant's claims and a reconsideration of Judge Koletsky's ruling.
The defendant's cases were subsequently scheduled for retrial. The state, which by that time was represented by a different assistant state's attorney, chose not to seek the consolidation of the Burger King and Empire Pizza cases for the retrial and instead elected to proceed first with the Burger King case. After jury selection had commenced in that case, the defendant elected to enter into a plea agreement with the state that called for him to plead guilty to the charges of robbery in the first degree and conspiracy to commit robbery in the first degree in exchange for an agreed-upon sentence of twenty years incarceration, execution suspended after seven years, followed by five years of probation. This court canvassed the defendant's pleas and accepted them after finding that they were knowingly and intelligently entered. Thereafter, on October 15, 2009, this court sentenced the defendant in accordance with the plea agreement.
The new prosecutor, Senior Assistant State's Attorney Dennis O'Connor, assumed responsiblity for these cases after the original trial prosecutor had left the Hartford State's Attorney's Office to pursue a new employment opportunity. Attorney O'Connor has continued to represent the state's interests in these matters since that time.
After efforts to resolve the Empire Pizza case proved unfruitful, this court referred that case to the court, O'Keefe, J., for trial. With Judge O'Keefe presiding, and after jury selection had begun, it became known to the state — which then immediately alerted the defendant and the court — that the original trial prosecutor had engaged in certain behavior with witness Carrasquillo that had not been disclosed either to Judge Koletsky at the original trial or to this court during its consideration of the defendant's post-remand motion to dismiss. Specifically, the state reported that during its preparation for retrial it had learned from Carrasquillo that she and the original trial prosecutor had had an agreement — in essence, a prearranged signal — which concerned Carrasquillo's ability to make an in-court identification of the defendant at the first trial.
Judge O'Keefe thereupon commenced a hearing on this issue, during which he heard sworn testimony from Carrasquillo as to what had occurred. Based upon that testimony, Judge O'Keefe concluded that the prosecutor had indeed arranged a covert signal with the witness concerning her in-court identification of the defendant. Specifically, Judge O'Keefe found that Carrasquillo had been told by the trial prosecutor to respond in the affirmative to an offer of a drink of water if she, Carrasquillo, would be able to make a positive in-court identification of the defendant. Tr., October 30, 2009, pp. 2-3. Judge O'Keefe further concluded that when the prosecutor's prearranged offer was accepted, the prosecutor (but neither the defense nor the court) knew then that an in-court identification could be made.
This procedure provided the prosecutor with a significant tactical advantage. Armed with this knowledge, the prosecutor was in a position to safely seek from Carrasquillo an in-court identification of the defendant, without the risk and uncertainty that typically adheres to such an inquiry. Given the facts of this case, the importance of this in-court identification cannot be overstated. While a positive in-court identification unquestionably is always an important piece of evidence in any prosecution, the in-court identification of the defendant by Carrasquillo was of particular significance to the state's case because she was the state's only eyewitness in the Empire Pizza case, and she had been unable to make an out-of-court identification of the defendant from a photo array shown to her by the police during the investigative stage of the case.
Based upon this newly discovered evidence, the defendant moved yet again to dismiss the Empire Pizza case based on the principles of double jeopardy and prosecutorial misconduct set forth in State v. Colton, supra, 234 Conn. 683. In rendering a decision on the renewed motion to dismiss, Judge O'Keefe agreed with the defendant that new evidence of misconduct had been uncovered: a signal between the original trial prosecutor and witness Carrasquillo concerning the identification of the defendant. Tr., October 30, 2009, p. 3. The court further found that once the signal was made at the trial, the prosecutor knew the witness could make an identification and yet failed to be forthcoming about this awareness either to the defense or Judge Koletsky even in the face of specific inquiries by Judge Koletsky concerning the circumstances surrounding Carrasquillo's in-court identification. Tr., October 30, 2009, pp. 3-5. Indeed, Judge O'Keefe noted that the trial prosecutor demonstrated a similar lack of forthrightness to this court as well, when it had considered aspects of this same issue during the hearing on the defendant's post-remand motion to dismiss. Tr., October 30, 2009, p. 6.
Based on these findings, Judge O'Keefe concluded that the trial prosecutor had engaged in a course of misconduct at the original trial specifically for the purpose of avoiding an acquittal that the prosecutor believed was likely to occur in the absence of the misconduct. Tr., October 30, 2009, p. 9. In light of this determination, and consistent with the holding in Colton, Judge O'Keefe held that principles of double jeopardy barred the defendant's retrial in the Empire Pizza case and thereupon dismissed the charges stemming from that case against the defendant. Tr., October 30, 2009, p. 9. The state did not appeal the ruling.
On November 23, 2009, the defendant filed a petition for a writ of error coram nobis with this court seeking to vacate his guilty pleas and convictions in the Burger King case, and to dismiss the charges against him. In an oral decision issued on February 26, 2010, this court made an initial determination that a writ of error coram nobis was the appropriate vehicle for the defendant's claim concerning his convictions in the Burger King case and that this court had jurisdiction to consider the merits of the writ. In accordance with an order of this court, both parties then filed briefs to address the questions of whether, first, the newly discovered facts found by Judge O'Keefe and determined by him to constitute prosecutorial misconduct, rendered the defendant's convictions in the Burger King case void or voidable, and, second, if so, this court should vacate those convictions.
The court has signed a copy of the transcript of this oral ruling. Pursuant to Practice Book § 6-1(a), the signed transcript constitutes this court's memorandum of decision.
There were two conditions precedent the defendant was required to satisfy in order to avail himself of the writ of error coram nobis. The first was that the claim must have been brought within three years from the entry of the disputed judgment. State v. Das, 291 Conn 356, 370 (2009). The second was that there existed no adequate remedy provided by law that could cure the claimed injustice. Id., 371.
On June 16, 2010, this court issued a second oral decision that answered these questions in the affirmative. Based upon Judge O'Keefe's factual findings and legal determinations, and given the nature of the evidence implicated by the prosecutor's misconduct, this court concluded that the defendant's convictions in the Burger King case were voidable. On the basis of that finding, the court granted the writ of error coram nobis, and thereby vacated the defendant's guilty pleas and the resulting judgments of conviction. The state did not appeal from this court's issuance of the writ of error coram nobis.
See footnote 4 of this decision.
On July 13, 2010, the defendant filed the current motion to dismiss. On December 17, 2010, this court held a hearing on the motion, at the conclusion of which the court indicated that a written decision on the motion would follow.
Discussion of Law
"Ordinarily, `the Double Jeopardy Clause imposes no limitation upon the power of the government to retry a defendant who has succeeded in persuading a court to set his conviction aside, unless the conviction has been reversed because of [the] insufficiency of the evidence.' Oregon v. Kennedy, [ 456 U.S. 667, 676 n. 6, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)]. In Kennedy, however, the United States Supreme Court held that double jeopardy also bars a subsequent prosecution if there was prosecutorial misconduct in the first trial that goaded the defendant into seeking a mistrial. `Only where the governmental conduct in question is intended to "goad" the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.' Id., 676." State v. Colton, supra, 234 Conn. 691-92.
In Colton, our Supreme Court extended the rule announced in Kennedy to "bar a new trial, even in the absence of a mistrial or reversal because of prosecutorial misconduct, if the prosecutor in the first trial engaged in misconduct with the intent to prevent an acquittal that the prosecutor believed at the time was likely to occur in the absence of his misconduct." (Internal quotation marks omitted.) Id., 696. This is precisely the finding that Judge O'Keefe made in ordering the dismissal of the Empire Pizza case. Judge O'Keefe found that the trial prosecutor had engaged in improper conduct concerning the in-court identification of the defendant with the intent to prevent an acquittal that the prosecutor believed at the time was likely to occur absent the impropriety. On the basis of this determination Judge O'Keefe concluded that a retrial of that case was barred by the principles of double jeopardy.
The issue raised by the instant motion to dismiss logically extends from that ruling, but was not before Judge O'Keefe at the time of his consideration of the trial prosecutor's misconduct. Moreover, this issue was neither relevant to nor considered by the court in Colton, or in any other reported case that this court was able to locate through its research. In a matter that may well be one of first impression, this court must now determine whether the impropriety that has been found to have occurred during the joint trial of the Empire Pizza and Burger King cases, and which already has foreclosed the state's effort to retry this defendant on the Empire Pizza case, must be held to bar the defendant's reprosecution on the Burger King case as well.
The state argues that the impact of the prosecutorial impropriety that occurred during the original trial was confined solely to the Empire Pizza case. In support of this contention and in an effort to insulate the Burger King case from a claim of double jeopardy, the state notes that there is no direct evidence of prosecutorial misconduct in the record other than that concerning Carrasquillo, a witness whose testimony was limited to her observations at the time of the Empire Pizza incident. The state argues that absent some proof that there was prosecutorial misconduct directly relating to the Burger King evidence, the Burger King case, particularly because it was strong, cannot be found to have been tainted by the misconduct concerning Carrasquillo. Thus, in the state's view, a retrial of the Burger King case, unlike a retrial of the Empire Pizza case, should not be foreclosed by the principles of double jeopardy that our Supreme Court recognized in Colton.
In response, the defendant asserts that the impact of the prosecutorial misconduct at issue here cannot be compartmentalized in the manner the state proposes and that, consequently, additional evidence of misconduct is not a factual predicate to the dismissal of the present matter. The defendant's contention is premised on the fact that the misconduct already identified occurred while the Empire Pizza and Burger King cases were consolidated for a single trial in which the jury, at the state's request, was specifically instructed that under certain circumstances it could consider the evidence in the Empire Pizza case as proof of the defendant's guilt in the Burger King case. In other words, the defendant contends that while it may be correct that Carrasquillo's testimony was elicited during the Empire Pizza portion of the joint trial, it is not correct that her testimony pertained solely to that case. Rather, the court's instruction on cross-admissibility rendered Carrasquillo's testimony relevant as proof of the defendant's guilt in the Burger King case as well, if the jury accepted the state's claim that the crimes had been committed as part of a common scheme or plan.
Having considered the competing claims presented by the state and the defendant, this court concludes that because the misconduct at issue occurred during a joint trial at which the evidence was cross-admissible, and because the original jury may have used the tainted evidence in convicting the defendant on the Burger King charges, the double jeopardy bar that Judge O'Keefe applied to the reprosecution of the Empire Pizza case cannot now be confined to that case alone. That bar must be found to apply with equal force to the Burger King case. Accordingly, the charges in the instant case, like those in the Empire Pizza case, must be dismissed.
In reaching this conclusion, this court has been guided by the unique facts and procedural history present here, as well as the nature of the legal determinations that have already become the law of the case. The Empire Pizza and Burger King cases had been consolidated for trial upon motion of the state and over the specific objection of the defense. This "[j]oinder gave the state the opportunity to present the jury with the intimate details of each of these [cases], an opportunity that would have been unavailable if the cases had been tried separately." (Internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 365. Similarly, it was the state, again over the objection of the defendant, that advocated that the crimes were committed by the defendant as part of a common scheme or plan — a theory that, if adopted, enabled the jury not only to learn about the particularly disturbing evidence of the Empire Pizza robbery and homicide, but also to consider that evidence as proof of the defendant's guilt in the Burger King robbery. Finally, the court also takes note of the fact that the defendant's theory of defense was that he had not been the perpetrator of the crimes stemming from either incident. Id., 364. It is beyond question that the defendant's burden in advancing this theory was made more difficult by virtue of the joinder of the two cases, and became almost herculean by virtue of the trial court's instruction authorizing the cross-admissibility of evidence.
It is within this context that the impact of Judge O'Keefe's finding of prosecutorial misconduct must be considered. Judge O'Keefe determined that the trial prosecutor feared the Empire Pizza case was likely to end in an acquittal and thus engaged in a course of behavior with witness Carrasquillo to avoid that unfavorable result. As found by Judge O'Keefe, this behavior constituted blatant prosecutorial misconduct that improperly bolstered the state's evidence on the crucial issue of identification. Implicit in Judge O'Keefe's ruling is the finding that the prosecutor's misconduct served its intended purpose, and contributed to the defendant's conviction of the charges in the Empire Pizza case.
In this court's view, the impact of the prosecutor's malfeasance cannot be said to have ended there. Prior to the start of the joint trial, the court had indicated, and therefore the prosecutor was aware, that the jury ultimately was to be instructed that the evidence in each case would be cross-admissible if the robberies were found to be a part of a common scheme or plan. See id., 335. Thus, by improperly bolstering the evidence of identification in the Empire Pizza case, the state was able to achieve a benefit that extended beyond the parameters of that case alone. Because the identification evidence in the Empire Pizza case could have been considered by the jury as proof of the defendant's guilt in the Burger King case, the prosecutor's misconduct reinforced the evidence that implicated the defendant in the Burger King case. In other words, the prosecutorial misconduct here not only tainted both cases, but also helped to lessen the likelihood of an acquittal in both cases. Under such circumstances, the double jeopardy bar must likewise extend to both cases.
This broad remedy is required notwithstanding the strength of the state's evidence in the Burger King case. Although that evidence may have been strong; id., 365; it was significantly bolstered by the cross-admissibility of the emotionally charged evidence from the Empire Pizza case, which included the tainted identification testimony from Carrasquillo. As the Supreme Court noted, the evidence relating to the Empire Pizza case was "likely to have excited the passions of the jurors" because it involved the commission of a homicide during the course of a robbery. Id., 365-66. That evidence, including Carrasquillo's testimony, "which the jury explicitly was permitted to consider while deliberating on the defendant's guilt in the Burger King case, impermissibly suggested to the jury that the defendant had a bad character or a propensity to engage in criminal behavior and, further, that the defendant was a violent and dangerous individual." Id., 366.
For this reason, the assertion by the state that the strength of the Burger King case should somehow deprive the defendant of the protection of double jeopardy's shield "has a hollow ring . . . [and] would suggest that in a strong case the defendant is not entitled to [double jeopardy protection] and therefore anything goes." State v. Couture, 194 Conn. 530, 564 (1984). The Burger King evidence may well have been strong, but certain prosecutorial misconduct "may so poison the minds of the jurors even in a strong case that the accused may be deprived of [his rights]." (Emphasis added; internal quotation marks omitted.) Id. In fact, while our Supreme Court recognized the strength of the Burger King evidence, it refused to conclude that the "improper admission of the evidence relating to the Empire Pizza case was harmless" to the verdicts in the Burger King case. State v. Randolph, supra, 284 Conn. 365-66. In the context of the instant motion, this court similarly must conclude that the strength of the Burger King evidence does not insulate that case from either the impact of the prosecutor's misconduct or the application of double jeopardy principles.
In reaching this conclusion, this court has given due consideration to the decision in State v. Spencer, 275 Conn. 171 (2005), which is relied upon by the state in its opposition to the present motion. That case involved a direct appeal by a defendant, convicted of four charges, alleging that improper comments made by the state in closing argument had deprived him of his due process right to a fair trial. The court in Spencer held that where prosecutorial misconduct has occurred, "the inquiry into whether there was a fair trial requires [a separate] examination of the impact of the misconduct on each conviction." Id., 182. Such an inquiry also requires a determination of whether there was a "reasonable likelihood that the jury's verdict [as to any particular charge or charges] would have been different absent the . . . improprieties." (Internal quotation marks omitted.) Id., 190. The court thus concluded that "[d]epending on the outcome of the analysis, the conviction on some charges may be allowed to stand, while others may be reversed." Id., 182.
Applying this type of compartmentalized analysis to the facts at issue there, the Spencer court held that the prosecutor's misconduct in closing argument had deprived the defendant of his right to a fair trial on only two of the charges. In allowing the convictions on the other two charges to stand, the court stressed that the defendant, by his own trial testimony and through his attorney's closing argument, had essentially conceded his guilt on these remaining offenses; id., 188; thereby ensuring that the jury's verdict on those charges would not have been different absent the misconduct.
While it is true that Spencer requires courts in certain circumstances to apply the type of compartmentalized analysis that the state advocates here, this court concludes that those circumstances are not present in the instant case and that, as a result, the state's reliance on Spencer is misplaced. First, the defendant here did not concede his guilt on any charge. He vigorously defended against both of his cases, arguing that he had been misidentified in each. Thus, from a purely factual standpoint, there can be no doubt that "the misconduct's impact on the jury is easier to isolate in the [ Spencer] case;" id., 190; than it is to isolate here.
Second, while Spencer concerned a due process claim advanced on direct appeal, the claim here arises in a pretrial setting, and implicates a defendant's right not to be placed twice in jeopardy. Therefore, this is not a case like Spencer in which a reviewing court is considering whether prosecutorial misconduct had occurred, and, if so, assessing which of the defendant's convictions were sufficiently impacted by it. Rather than being asked to decide whether a particular conviction should be set aside or allowed to stand, this court is considering whether a particular prosecution should be terminated or allowed to continue.
Finally, and most importantly, the nature of the prosecutorial impropriety in Spencer further serves to distinguish that case from the instant one. Although the misconduct in Spencer was characterized as "severe;" id., 182; a judicial determination was never made as to whether that misconduct was intentional or an honest mistake, or whether it was the product of mere overzealousness or motivated by a more sinister purpose. To be sure, prosecutors may make flawed judgment calls under pressure and ill-advised statements in the heat of argument, but errors committed under such circumstances do not necessarily implicate deliberate wrongdoing or the intent to facilitate an unjust result. Absent such intention, Spencer properly directs a reviewing court to employ a type of compartmentalized analysis that may, in a given case, result in certain convictions being allowed to stand.
Here, however, the court is faced with far more disturbing prosecutorial behavior than that at issue in Spencer. The misconduct identified by Judge O'Keefe involves not merely imprudent, impulsive comments made during closing argument, but premeditated behavior that led to the introduction of tainted identification testimony that may have impacted upon the jury's deliberations in both cases. Moreover, the trial prosecutor here acted with a culpable mental state: that is, with the specific intent to prevent an acquittal the prosecutor thought was likely to occur absent the misconduct. Worse still, the prosecutor compounded the seriousness of the misconduct by demonstrating an alarming lack of candor in responding to the inquiries of the trial court concerning the identification. Under these circumstances, this court concludes that it is wholly inappropriate to rely on Spencer as the basis to undertake the type of separate analysis of the defendant's cases that the state proposes here.
Conclusion
Based on the foregoing, this court simply cannot, and will not, engage in the type of "judicial microsurgery;" id., 180 that the state seeks as a means of salvaging the Burger King prosecution. To allow the state to retry the defendant in the face of the factual and legal findings here would effectively absolve the state of responsibility for the predicament in which it now finds itself, and place upon the defendant a burden he should not be required to bear. Accordingly, this court concludes that double jeopardy principles prohibit the reprosecution of the defendant on the Burger King charges.
The defendant's motion to dismiss is hereby granted.