State v. Anderson
State v. Anderson
Opinion of the Court
The issue in this interlocutory
The record reveals the following relevant facts and procedural history. In connection with the alleged embezzlement of tens of thousands of dollars, the defendants, Richard Anderson and Janice Anderson, each were charged with, in separate informations, two counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2),
On July 5, 2007, the court held a hearing for the purpose of discussing potential dates to resume the trial. At the hearing, the state was represented by John R. Whalen, a supervisory assistant state’s attorney, due to the continued illness of Malone. Initially, the court believed, on the basis of the information it had received to that date about Malone’s health, that the earliest date on which the trial could resume was August 6, 2007. The court intended to discuss this potential date with the jurors, even though some of the jurors already had expressed scheduling concerns before Malone was hospitalized. Just minutes before coming out to the courtroom, however, the court, with the agreement of defense counsel, spoke with Malone on the telephone and learned that his condition was going to necessitate further hospitalization and a period of convalescence that was longer than the parties and the court originally had anticipated. On the basis of this new information, the court concluded that the resumption of the trial on August 6,2007, would not be possible. The court further concluded that it would not be feasible to talk to the jurors about the possibility of resmning the trial in September, 2007, because of the seriousness of Malone’s illness and the uncertainty regarding when he might be able to return to complete the trial.
The trial court also noted that, during its discussion with counsel in chambers, Whalen had represented that it was the state’s view that another prosecutor would
Prior to declaring a mistrial, the court afforded counsel the opportunity to be heard on the record. Whalen stated that he did not think another prosecutor “could step in at this point and try to salvage this case until [Malone] returns, or finish it if he doesn’t return.” Whalen further stated that “we have all been caught by surprise. This is certainly one of those incidents where there is manifest necessity, and . . . the court is well within the law in declaring a mistrial.” Defense counsel objected to a mistrial and stated that “the defendants have a valid constitutional right to have the case decided by a jury of their choice,” and that it was his “feeling that this jury was attentive to this case and that [the defense] had made significant points in establishing reasonable doubt ... if not complete innocence with respect to [the defendants].” Defense counsel further argued that “the state . . . should have been prepared,” and, in view of the projected length and complexity of the trial, “it would have been wise [for] the state [to have obtained] a second lawyer in a case like this [one].”
After hearing the parties’ arguments, the court summoned the jurors and declared a mistrial on the ground of manifest necessity. Specifically, the trial court found manifest necessity on the basis of “the totality of the
The defendants thereafter filed a joint motion to dismiss the charges against them, claiming that the trial court’s declaration of a mistrial, over their objection, had not been based on manifest necessity and, therefore, that further prosecution would violate the guarantee against double jeopardy. The trial court, Handy, J., denied the defendants’ motion to dismiss and concluded that “the mistrial was properly declared by the court . . . over the defendants’ objection, based on manifest necessity, after [the court] considered all possible alternatives and after [it] weighed the totality of the circumstances.” This appeal followed.
On appeal, the defendants claim that the trial court’s finding of manifest necessity was improper because the court failed to explore the alternative of a “reasonable, even if somewhat lengthy, continuance in order to allow another [prosecutor] to assume responsibility for the case.” Specifically, the defendants claim that the trial court’s reliance on Whalen’s representations that, due to the complexity of the case, another prosecutor would not be able to replace Malone, was, “without more . . . insufficient to outweigh [the] defendants’ valued right to have the original jury decide the case.” In addition, the defendants claim that the trial court improperly failed to poll the jurors on their “availability in September [of 2007], or beyond.” (Emphasis in original.)
The state responds that the trial court was entitled to credit Whalen’s representations regarding the
We begin with a review of the doctrine of double jeopardy under the federal and state constitutions. The fifth amendment to the United States constitution provides in relevant part: “No person shall ... 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 due process clause of the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); and establishes the federal constitutional standard concerning the guarantee against double jeopardy. Although the Connecticut constitution does not include a specific double jeopardy provision,
The constitutional protection against double jeopardy includes the defendant’s “valued right to have his trial completed by a particular tribunal.”
“The primary definition for when ‘manifest necessity’ justifies declaring a mistrial was articulated by the United States Supreme Court in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824) State v. Kasprzyk, supra, 255 Conn. 193. Justice Joseph Story, writing for the court in Perez, stated: “[I]n all cases of this nature, the law has invested [c]ourts 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 .... [T]he faithful, sound, and conscientious exercise of this discretion . . . rests . . . upon the responsibility of the [j]udges, under their oaths of office.” United States v. Perez, supra, 580.
Our standard of review for whether a mistrial was justified by manifest necessity is well settled. “Because of the importance of the defendant’s right to have his trial concluded by a particular tribunal, ‘the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate “manifest
On appellate review, “ ‘the trial judge’s decision whether manifest necessity exists to declare a mistrial should be afforded the “highest degree of respect.” ’ ” United States v. Millan, 17 F.3d 14, 19-20 (2d Cir. 1993); see also State v. Daniels, 207 Conn. 374, 394-95 n.12, 542 A.2d 306 (1988) (“the trial corut’s assessment of the necessity for a mistrial is accorded great deference”). The United States Supreme Court “has long
Applying this standard of review to the present case, we conclude that the trial court did not abuse its discretion in declaring a mistrial on the ground of manifest necessity. The trial court reasonably concluded that manifest necessity existed on the basis of the totality of the circumstances because (1) Malone unexpectedly became ill during the trial, (2) no other prosecutor would have been able to assume the prosecution within a reasonable time in light of the complexity of the case, and (3) there were jurors who were already “chomping
Our conclusion is consistent with our decision in State v. Van Sant, supra, 198 Conn. 369. In Van Sant, we held that the trial court in that case properly exercised its discretion in declaring a mistrial, over the defendant’s objection, on the ground of manifest necessity when a key state’s witness became ill while testifying. Id., 370, 384. The witness, a police detective, suffered a seizure on the stand while being cross-examined by defense counsel and was removed from the courthouse on a stretcher by medical personnel. Id., 370-71, 380 and n.8. In concluding that the trial court properly exercised its discretion in declaring a mistrial, we relied on five factors. See generally id., 380-82.
First, a key witness became seriously ill during trial, and his condition prevented him from testifying for an indefinite period. See id., 380. With regard to the witness’ medical condition, we noted the significant circumstance that the trial judge personally saw the witness as “he keeled over the stand . . . .” (Internal quotation marks omitted.) Id. The judge stated that it was “obvious that there was something drastically wrong with [the witness]” and that he “was convinced that there was no malingering going on.”
Second, “the trial court proceeded deliberately and not precipitously” in exercising its discretion and declaring the mistrial. Id., 381. Specifically, the trial court delayed declaring the mistrial for about three weeks after the witness’ seizure. See id. Third, “the trial court properly . . . gave counsel the opportunity to be heard extensively on the matter.” Id. Fourth, the court considered the double jeopardy implications of its ruling by carefully weighing “the defendant’s right to have his trial completed,” on the one hand, and “the public’s interest in a fair trial and just judgment,” on the other. Id., 382. Finally, the trial court “realistically considered the alternatives to a mistrial . . . .” Id., 381. The court reasonably concluded that a continuance was not a viable option because “[t]here was no fair basis [on] which to estimate when [the witness] could testify.” Id., 382. In addition, the court determined that striking the testimony of the witness would not “resolve the problem”; id.; because the witness’ testimony constituted “critical prosecution evidence . . . .” (Internal quotation marks omitted.) Id., 380.
On the basis of our decision in Van Sant, we conclude that the trial court in the present case did not abuse its discretion in declaring a mistrial. First, as with the state’s witness in Van Sant, Malone became seriously ill during the trial, and his condition necessitated hospitalization, followed by a lengthy and indefinite period of convalescence. In addition, just as the trial judge in Van Sant personally observed the condition of the witness on the stand, the trial judge in the present case personally spoke with Malone on the telephone regarding the severity of his illness and concluded that it was evident that he “certainly . . . did not sound
Second, as with the trial court in Van Sant, the trial court in the present case “proceeded deliberately and not precipitously . . . .” State v. Van Sant, supra, 198 Conn. 381. The court did not rush to declare a mistrial after first learning of Malone’s illness on June 24, 2007, but, rather, waited eleven days, until July 5, 2007, and until after he learned more about Malone’s condition and the unavailability of a substitute prosecutor before taking such action. Third, prior to declaring the mistrial, the court properly gave counsel the opportunity to be heard. Fourth, the court considered the implications of its ruling and weighed the necessity of a mistrial against the defendants’ right to have their trial completed. Specifically, the court stated: “I understand the necessity and the fact that, obviously, the [defendants] have much invested in [the] matter as well; and I certainly have taken that into consideration. But . . . [i]n the court’s mind, it is not feasible that we continue this trial.”
Finally, as with the trial court in Van Sant, the trial court in the present case considered the alternatives to a mistrial and reasonably concluded that they were not feasible.
Our conclusion also is consistent with the decisions of courts from other jurisdictions that have reviewed
Notwithstanding the reasonableness of the trial court’s exercise of discretion in the present case, the defendants claim that the trial court’s finding of manifest necessity was improper because the trial court failed to explore the alternative of a “reasonable, even if somewhat lengthy, continuance in order to allow another [prosecutor] to assume responsibility for the case.” Specifically, the defendants claim that the trial court’s reliance on Whalen’s uncontroverted representations that, due to the complexity of this case, another prosecutor would not be able to replace Malone, was, “without more . . . insufficient to outweigh [the] defendants’ valued right to have the original jury decide the case.” In addition, the defendants claim that the trial court improperly failed to poll the jurors on their “availability in September [of 2007], or beyond.” (Emphasis in original.) These claims have no merit.
The defendants’ claim that the trial court improperly failed to poll the jurors on their “availability in September [of 2007], or beyond(emphasis in original); also is without merit. The defendants claim that our decision in State v. Tate, 256 Conn. 262, 773 A.2d 308 (2001), required the trial court to poll the jurors as to their availability after a continuance as part of the court’s duty to explore alternatives to declaring a mistrial. We disagree and conclude that the defendants’ reliance on Tate is misplaced. In Tate, “the defendant [James Tate] asked the trial court to inquire of the jury reporting its deadlock whether it had, in fact, reached a partial verdict.” Id., 285. Tate argued that, if the jury had found him not guilty of the murder charge but was deadlocked with respect to one of the lesser included offenses, then the state would be precluded from retrying him on the ground of double jeopardy. See id., 275, 285-86. The trial court declined Tate’s request and, over Tate’s objection, declared a mistrial. Id., 285-86. On appeal, we held that the trial court improperly declared a mistrial and concluded that the trial court should have polled the
Tate is clearly distinguishable from the present case. Unlike in Tate, the subject of the requested inquiry in this case was not whether the jurors had reached a partial verdict but, rather, the jurors’ availability after a lengthy continuance. In addition, unlike the usefulness of the jury inquiry in Tate, a jury inquiry in the present case would have been futile in light of the uncertainty regarding when Malone would be able to return to trial and the impracticality of having another prosecutor step in mid-trial. See State v. Van Sant, supra, 198 Conn. 382 (continuance not feasible because “[t]here was no fair basis [on] which to estimate when [the witness] could testify”). Lastly, unlike the defendant in Tate, the defendants in the present case did not ask the court to make any inquiry of the jury.
In this opinion ROGERS, C. J., and PALMER, VERTE-FEUILLE and McLACHLAN, Js., concurred.
A ruling on a motion to dismiss criminal charges on grounds of double jeopardy is subject to interlocutory review. See, e.g., State v. Tate, 256 Conn. 262, 276, 773 A.2d 308 (2001).
The defendants appealed to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
Although § 53a-122 (a) was the subject of technical amendments in 2000; see Public Acts 2000, No. 00-103, § 1; those amendments have no bearing on the merits of this appeal. In the interest of simplicity, we refer to the current revision of the statute.
Hereinafter, all references to the trial court are to the court, Schimelman, J., unless otherwise noted.
In State v. Michael J., 274 Conn. 321, 875 A.2d 510 (2005), we discussed the historical development of the protection against double jeopardy under Connecticut law and noted that, dining the 1965 constitutional convention, the delegates specifically rejected an amendment that would have added a double jeopardy clause to our constitution because they wished to “maintain then-existing law, even though they recognized that it afforded Connecticut citizens less protection than that provided by the United States constitution. ” Id., 352-53.
Article first, § 8, of the Connecticut constitution provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”
Article first, § 9, of the Connecticut constitution provides: “No person shall be arrested, detained or punished, except in cases clearly warranted by law.”
In Arizona v. Washington, 434 U.S. 497, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978), the United States Supreme Court set forth the reasons behind the constitutional protection of a criminal defendant’s right to have his trial completed by a particular tribunal: “[A second prosecution] increases the financial and emotional burden on the accused, prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing, and may even enhance the risk that an innocent defendant may be convicted. The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed. Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.” Id., 503-505.
We note that our previous case law has not been entirely clear with respect to the standard of review that we apply to a trial court’s decision to declare a mistrial on the ground of manifest necessity. Specifically, we have previously articulated the standard of review as follows: “Given the constitutionally protected interest involved, reviewing courts must be satisfied, in the words of Justice Story in Perez, that the trial judge exercised sound discretion in declaring a mistrial.” (Internal quotation marks omitted.) State v. Kasprzyk, supra, 255 Conn. 194; accord State v. Tate, 256 Conn. 262, 279, 773 A.2d 308 (2001); State v. Autorino, 207 Conn. 403, 408, 541 A.2d 110, cert. denied, 488 U.S. 855, 109 S. Ct. 144, 102 L. Ed. 2d 116 (1988); State v. Van Sant, supra, 198 Conn. 379. Whether this standard is satisfied turns on the reviewing court’s conclusion as to whether the trial court acted reasonably in declaring the mistrial, in light of the totality of the circumstances. This is the same inquiry that we engage in under the abuse of discretion standard. In any event, if there is any doubt as to what standard should be applied on appeal, United States Supreme Court and federal circuit court case law makes it clear that it is the abuse of discretion standard that is applied in reviewing a trial court’s decision to declare a mistrial on the ground of manifest necessity. See, e.g., Illinois v. Somerville, supra, 410 U.S. 468; United States v. Jorn, supra, 400 U.S. 486; United States v. Razmilovic, 507 F.3d 130, 137 (2d Cir. 2007); United States v. Millan, supra, 17 F.3d 20; see also United States v. Williams, 205 F.3d 23, 36 (2d Cir.), cert. denied, 531 U.S. 885, 121 S. Ct. 203, 148 L. Ed. 2d 142 (2000). Accordingly, we take this opportunity to clarify our case law and explicitly apply the abuse of discretion standard to the present case.
We further note that the United States Supreme Court has applied a different standard of review, specifically, the “strictest scrutiny” standard of review, in cases in which there has been intentional misconduct on the part of the government. See Arizona v. Washington, supra, 434 U.S. 508 (“the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the [s]tate to harass or to achieve a tactical advantage over the accused”). Because the present case does not concern any allegations of intentional misconduct on
Immediately prior to the witness’ sudden illness, the witness “had become enmeshed in some inconsistency vis-a-vis his earlier testimony [relating to a] motion to suppress, which the trial court indicated raised questions about his trial testimony.” State v. Van Sant, supra, 198 Conn. 380. In light of the timing of the witness’ illness, the trial judge stated on the record that it was his belief that the witness was not feigning illness. Id.
“A trial judge has acted within his sound discretion in rejecting possible alternatives in granting a mistrial if reasonable judges could differ about the proper disposition, even [when], [i]n a strict literal sense, the mistrial [is] not necessary.” (Internal quotation marks omitted.) State v. Van Sant, supra, 198 Conn. 381 n.10.
Implicit in the trial court’s finding is that the complexity of the case would prevent another prosecutor from stepping in within a reasonable amount of time because of the significant preparation time that would be required.
We note that, in Van Sant, the trial court conducted an evidentiary hearing at which the family physician who examined the ill witness testified regarding the witness’ condition. State v. Van Sant, supra, 198 Conn. 371. In addition, the trial court in Van Sant based its finding of manifest necessity in part on a letter from the witness’ cardiologist. See id., 373. Our decision in Van Sant, however, does not require such a formal evidentiary hearing to be held in all cases in order to justify a finding of manifest necessity. Instead, we evaluate challenges to the propriety of a declaration of a mistrial on the basis of the specific circumstances of each case. See id., 383 (“[A] trial court considering the exigencies of a potential mistrial situation cannot be bound by the strict rules of evidence applicable at formal proceedings .... In such a situation a court must be free to act [on] the information at hand, [as] long as it is reliable.” [Internal quotation marks omitted.]). In Van Sant, the trial court held an evidentiary hearing because the witness “had become enmeshed in some inconsistency vis-a-vis his earlier testimony [relating to a] motion to suppress, which the trial court indicated raised questions about his trial testimony.” Id., 380. Thus, the trial court in Van Sant needed to ensure that there was “no malingering going on.” (Internal quotation marks omitted.) Id. In addition, the trial court’s finding of manifest necessity in Van Sant was subject to the “strictest scrutiny” standard of review on appeal; (internal quotation marks omitted) id.; because the basis for the mistrial was the unavailability of critical prosecution evidence. See id.; see also Arizona v. Washington, supra, 434 U.S. 508 (“the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence, or when there is reason to believe that the prosecutor is using the superior resources of the [sjtate to harass or to achieve a tactical advantage over the accused”).
In contrast, in the present case, there were no concerns of malingering and no reason to doubt the veracity of the representations of Malone and Whalen. Moreover, unlike in Van Sant, in which “the strictest scrutiny” standard of review applied; (internal quotation marks omitted) State v. Van Sant, supra, 198 Conn. 380; we apply the abuse of discretion standard of review in the present case. Therefore, the trial court in the present case was entitled to credit those representations and did not abuse its discretion in failing to hold a formal evidentiary hearing.
Our conclusion also is consistent with that reached by the Supreme Court of South Carolina in State v. Kirby, supra, 269 S.C. 25. In Kirby, there was no indication that the trial court held an evidentiary hearing prior to declaring a mistrial following the death of the prosecutor. Rather, it appears that the trial court based its decision to declare a mistrial on its own observations
Although “[t]he [United States] [constitution does not require the trial judge to . . . conduct a hearing”; United States v. Bates, 917 F.2d 388, 397 n.12 (9th Cir. 1990); the better practice would have been for the trial court in this case to inquire in greater detail as to the feasibility of having another prosecutor take over the case, so as to rule out any question as to the necessity of the mistrial. On appeal, however, we do not review the trial court’s actions to determine whether they accord with the “best practices,” but, rather, we review them for an abuse of discretion. In the present case, we conclude that, although the trial court did not take the “best” course of action, it nevertheless did not abuse its discretion.
At oral argument, appellate counsel intimated that, prior to the trial court’s declaration of a mistrial, defense counsel requested the trial court to poll the jurors as to their availability after a continuance. The transcript
Dissenting Opinion
dissenting. It is black letter law that, as a part of the constitutional protection against multiple prosecutions, “ ‘the [d]ouble [j]eopardy [c]lause affords a criminal defendant a valued right to have his trial completed by a particular tribunal.’ Oregon v. Kennedy, 456 U.S. 667, 671-72, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982).” State v. Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002). In order to safeguard this right adequately, before a trial court properly may declare a mistrial, it is the state’s heavy burden to prove manifest necessity and the trial court’s responsibility to give due consideration to feasible alternatives in determining whether the state has satisfied that burden. Although a trial court’s decision to order a mistrial is entitled to some deference, in my view, in the present case, it acted improperly because the process by which it reached that determination does not reflect the requisite scrupulous, sound exercise of discretion. I reach this conclusion because the record did not reflect an adequate basis to inform the court’s decision to order a mistrial in lieu of other alternatives. Specifically, there was an inadequate basis from which the trial court could make a reasoned determination that it was not feasible to order a continuance to allow substitute counsel to take over the case for the state. That deficiency resulted from both the state’s failure to provide relevant information to the trial court and the trial court’s failure to make appropriate inquiries. Because the majority’s
The majority has set forth the general principles regarding declarations of mistrial, which need not be repeated. I would highlight, however, the following essential obligations of the state, the trial court and the reviewing court. “[T]he words manifest necessity appropriately characterize the magnitude of the prosecutor’s burden. Arizona v. Washington, [434 U.S. 497, 505, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978)]. . . . [That] burden is a heavy one. ... Id. ... [A] high degree of necessity is required before a conclusion may be reached that a mistrial is appropriate .... Id., [506].” (Emphasis added; internal quotation marks omitted.) State v. Tate, 256 Conn. 262, 278, 773 A.2d 308 (2001). “A trial judge must therefore engage in a 'scrupulous exercise of judicial discretion’; United States v. Jorn, [400 U.S. 470, 485, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971)];
“A reviewing court looks for manifest necessity by examining the entire record in the case without limiting itself to the actual findings of the trial court. ... It is the examination of the propriety of the trial court’s action against the backdrop of the record that leads to the determination [of] whether, in the context of a particular case, the mistrial declaration was proper. Given the constitutionally protected interest involved, reviewing courts must be satisfied . . . that the trial judge exercised sound discretion in declaring a mistrial.” (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Van Sant, 198 Conn. 369, 379, 503 A.2d 557 (1986); accord United States v.
Turning to the facts of the present case, I agree that the trial court did not abuse its discretion in deciding that continuing the case until Senior Assistant State’s
The aforementioned inquiry and the facts gleaned from that inquiry stand in stark contrast to the basis, however, for the trial court’s determination that it was not feasible to order a continuance to allow substitute counsel to take over the case. The only statement made on the record by the state relative to this matter was the following sweeping, self-serving statement by State’s Attorney John Whalen: “I don’t think anyone could step in at this point and try to salvage this case until [Malone] returns or finish it if he doesn’t return.”
Despite the state’s failure to provide such information and its responsibility in creating the situation at hand by assigning only one attorney to what it now characterizes as a highly complicated case,
First, the trial court, Schimelman, J., stated that the case was complicated, pointing to the more than 300 exhibits that had been submitted in the eight days of trial as evidence of that fact, and, therefore, concluded that substitute counsel would require significant preparation time. I would agree that the case was not a simple one.
Second, the trial court pointed to the fact that there were jurors who were impatient because of the original trial schedule of five and one-half weeks, plans that jurors had made and the delay that already had occurred.
With regard to the jury, however, there is no indication that the trial court gave any weight to the fact that it had taken one month to select this jury. Nor is there any indication that the court considered the fact that there were four alternate jurors, some of whom might have been willing to serve in the place of any of the six jurors who might have been unavailable at a later date. Rather, the trial court suggested that, if it were to order a continuance, the jury might be prejudiced against the defendants. The defendants, however, had asserted their desire to continue with this jury. In the absence of some concrete reason to believe that the jury would have such bias, the trial court’s speculation should not override the defendants’ “valued right to have [their] trial completed by a particular tribunal.” (Internal quotation marks omitted.) State v. Butler, supra, 262 Conn. 174; see also United States v. Shafer, 987 F.2d 1054, 1058 (4th Cir. 1993) (“As an initial matter, we must put aside any statements by the [District [C]ourt that the mistrial was partially motivated by concerns of prejudice to the defense. . . . We note that such reservations were not shared by [the defendant], who wanted the trial to continue.” [Citations omitted.]).
Accordingly, I respectfully dissent.
The majority concludes that there are two possible levels of scrutiny afforded to the trial court’s decision regarding whether manifest necessity exists, strict or highly deferential, and that the present case necessarily requires the highly deferential standard by default because it does not involve the circumstances specifically identified by the United States Supreme Court under which strict scrutiny applies. Several courts, however, have characterized those two standards as extremes at either end of a spectrum of degrees of deference accorded, depending on the basis for the mistrial. See, e.g., Baum v. Rushton, 572 F.3d 198, 207 (4th Cir. 2009); United States v. Campbell, 544 F.3d 577, 581 (5th Cir. 2008), cert. denied, 555 U.S. 1145, 129 S. Ct. 1019, 173 L. Ed. 2d 308 (2009); United States v. Wecht, 541 F.3d 493, 505-508 (3d Cir.), cert. denied, 555 U.S. 1049, 129 S. Ct. 658, 172 L. Ed. 2d 616 (2008); United States v. Berroa, 374 F.3d 1053, 1057 (11th Cir. 2004), cert. denied, 543 U.S. 1076, 125 S. Ct. 932, 160 L. Ed. 2d 817 (2005); United States v. Stevens, 177 F.3d 579, 583 (6th Cir. 1999); United States v. Ruggiero, 846 F.2d 117, 123 (2d Cir.), cert. denied, 488 U.S. 966, 109 S. Ct. 491, 102 L. Ed. 2d 528 (1988); see also Arizona v. Washington, 434 U.S. 497, 510, 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978) (citing “spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny”). At one end of the spectrum, strict scrutiny has been applied when the mistrial either is prompted by the unavailability of critical prosecution evidence or is being used by the prosecution to gain a tactical advantage, whereas, at the other end of the spectrum, great deference has been accorded when the mistrial results from the classic grounds for a mistrial, a jury deadlock. See Baum v. Rushton, supra, 207 (citing Supreme Court case law to this effect). As the court in Baum noted: “Other cases lie somewhere between these two extremes on the spectrum of necessity, and may (or may not) satisfy the manifest necessity test.” Id. The facts of the present case are not akin to jury deadlock or even jury bias, which “lies on the spectrum between these two extremes but is considered ‘an area where the trial judge’s determination is entitled to special respect.’ ” United States v. Stevens, supra, 583. Moreover, I question whether stricter scrutiny may be called for in a case, such as the present one, in which the state is wholly responsible for the mistrial. Nonetheless, I need not determine whether two tiers or a spectrum of deference should be accorded to a trial court’s ultimate decision to order a mistrial because, in the present case, the process by which the trial reached its conclusion does not reflect the requisite sound exercise of its discretion. See United States v. Wecht, supra, 507 (“ ‘[T]he deference accorded the trial judge’s finding of manifest necessity can disappear, even in the classic case of a hung jury, when the trial judge has not exercised sound discretion.’ [United States v. Berroa, supra, 1057] .... Exactly how much deference is lessened is not an exact science: we still are much more likely to sustain a mistrial declaration based on a genuinely deadlocked jury than on any other basis, but our review will be somewhat more rigorous when we perceive procedural flaws in a [D]istrict [C]ourt’s decision.” [Citation
Although the scrupulous exercise of discretion language is derived from the plurality opinion in United States v. Jorn, supra, 400 U.S. 485, many Circuit Courts of Appeals, this court and many other state courts have adopted and applied that standard. See, e.g., Baum v. Rushton, 572 F.3d 198, 207 n.5 (4th Cir. 2009); United States v. Taylor, 569 F.3d 742, 746 (7th Cir. 2009); United States v. Lara-Ramirez, 519 F.3d 76, 83 (1st Cir. 2008); United States v. Huang, 960 F.2d 1128, 1134 (2d Cir. 1992); United States v. Dixon, 913 F.2d 1305, 1311, 1313 (8th Cir. 1990); Jones v. Hogg, 732 F.2d 53, 56-57 (6th Cir. 1984); United States v. Grasso, 552 F.2d 46, 52 (2d Cir. 1977); United States v. Tinney, 473 F.2d 1085, 1089 (3d Cir.), cert. denied, 412 U.S. 928, 93 S. Ct. 2752, 37 L. Ed. 2d 156 (1973); State v. Saunders, 267 Conn. 363, 394, 838 A.2d 186, cert. denied, 541 U.S. 1036, 124 S. Ct. 2113, 156 L. Ed. 2d 722 (2004); People v. Segovia, 196 P.3d 1126, 1133 (Colo. 2008); Swanson v. State, 956 A.2d 1242, 1244 (Del. 2008); People v. Edwards, 388 Ill. App. 3d 615, 623, 902 N.E.2d 1230 (2009); State v. Fassero, 256 S.W.3d 109, 115 (Mo. 2008); State v. Kornbrekke, 156 N.H. 821, 829, 943 A.2d 797
See Ross v. Petro, 515 F.3d 653, 664 (6th Cir. 2008) (“the failure of a lower court to explicitly explain its ruling in terms of the governing standard is not determinative, as long as the record provides sufficient justification for the ruling”), cert. denied sub nom. Ross v. Rogers, 555 U.S. 1099, 129 S. Ct. 906, 173 L. Ed. 2d 109 (2009); United States v. Razmilovic, 507 F.3d 130, 140 (2d Cir. 2007) (“[w]hile a trial judge is not constitutionally mandated to explain the decision to declare a mistrial if the record provides significant justification . . . when we are unable to discern from the record that a jury was genuinely deadlocked, a trial judge’s explanation, elaborating on the decision to declare a mistrial, can aid our inquiry” [citation omitted; internal quotation marks omitted]); United States v. Bates, 917 F.2d 388, 397 n.12 (9th Cir. 1990) (“[t]he [c]onstitution does not require the trial judge to consider the alternatives on the record or conduct a hearing . . . but the record must support the finding that manifest necessity justified the mistrial” [citation omitted]); United States v. Smith, 621 F.2d 350, 351 (9th Cir. 1980) (“The record gives no indication that the court here even considered the possibility of a continuance before ordering a mistrial. Since the court did not consider, or have before it the facts necessary for thorough consideration of, an obvious alternative to a mistrial, we cannot say that there was a ‘manifest necessity’ to terminate the trial at that time. ” [Emphasis added.]); Dunkerley v. Hogan, 579 F.2d 141, 146 (2d Cir. 1978) (“Although findings of fact or a statement of the trial court’s reasons for the declaration of a mistrial are not constitutionally mandated, the failure of the record to provide adequate support for the trial judge’s action may bar a retrial. It is not, enough that plausible reasons might conceivably exist for the trial judge’s action. If we are to review his exercise of discretion, to which deference should ordinarily be accorded, we must know the basis for that decision as disclosed by the record, including argument of counsel prior to the judge’s ruling.” [Internal quotation marks omitted.]), cert. denied, 439 U.S. 1090, 99 S. Ct. 872, 59 L. Ed. 2d 56 (1979).
Because the state took such an unequivocal position, the defendants, in addition to stating clearly that they wanted to go forward with the present jury, limited their response to the court as follows: “[T]he state, with all due respect, should have been prepared. Knowing 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.” I note, however, that the defendants had no burden to produce evidence or make specific objections to the mistrial decision. See State v. Van Sant, supra, 198 Conn. 381-82 n.11.
The state later essentially conceded that it had not provided such information to the court on the record prior to the declaration of a mistrial. In its second request for an evidentiary hearing and factual findings, which was filed along with its opposition to the defendants’ motion to dismiss, the state asserted: “[T]he trial court was not presented with certain evidence concerning the preparation time required for a substitute assistant state’s attorney to familiarize himselfdierself with the case and to resume trial, apart from the complexity of the trial itself to the point at which it was interrupted and the large number of exhibits, because [Malone] who was the only person knowledgeable about the necessary preparation time was the attorney who had tried the cases and was hospitalized on July 5 [2007] and unable to travel to court to provide that evidence to the presiding judge.” We note that the fact that the trial court had spoken directly with Malone on the same day that it ordered the mistrial suggests that someone from the office of the chief state’s attorney also could have spoken to Malone. Alternatively, because other members of the office of the chief state’s attorney had been involved in the case; see footnote 6 of this dissenting opinion; information could have been sought from them.
According to the affidavit in support of Richard Anderson’s arrest warrant, at least three people from the office of the chief state’s attorney, in addition to Malone, had been involved in the case: (1) Michael O’Connor, an inspector for the computer crimes task force with thirty years of experience, who was the affiant in the arrest warrant and had investigated the allegations of the complainant, Luigi Chinettd, Jr.; (2) Vic Sharma, a forensic fraud examiner, who had met with the complainant in 2003 and was scheduled to testify in the cases for the state; and (3) Senior Assistant State’s Attorney Gary Nicholson, who also had met with the complainant in 2003.
The state look a slightly different position in its motion to consolidate the cases against the two defendants. In that motion, the state represented: “Each information is supported by a relatively uncomplicated series of facts that will not be confusing to the jury when presented in the course of the same trial . . . .”
I would also point out, however, that public defenders are all too familiar with circumstances wherein they routinely are assigned to cases on short notice and the trial court nonetheless expects them to quickly familiarize themselves with the details of the case and to provide a competent defense. I see no reason why there should be a double standard for the state, especially when the right to protection against double jeopardy is implicated and the state has chosen to assign a single state’s attorney to a case that it deems complex.
The log for the exhibits reveals that 80 percent of the approximately 350 state exhibits were introduced on the same day, and almost all of these exhibits were checks. According to the trial court’s daybook, on that day, three witnesses testified for brief periods ranging from ten to fifty minutes.
Given the original scheduled end date of the trial, near the end of July, 2007, the most reasonable assumption is that these jurors had summer vacation plans. Indeed, in its memorandum of law in opposition to the defendants’ motion to dismiss the case, the state asserted: “It must be remembered that the trial began in late spring and extended into the summer months, a time when many people take their annual vacation.” If that were the case, the jurors might have been more amenable to a long continuance rather than a short one.
Reference
- Full Case Name
- State of Connecticut v. Richard Anderson; State of Connecticut v. Janice Anderson
- Cited By
- 14 cases
- Status
- Published