Berthiaume v. State

• Decision Date: 03 September 2019
• Docket Number: AC 41496
• Citation: 217 A.3d 1073,192 Conn.App. 322
• Court: Connecticut Court of Appeals
• Parties: Toby A. BERTHIAUME v. STATE of Connecticut

192 Conn.App. 322

217 A.3d 1073

Toby A. BERTHIAUME

v.STATE of Connecticut

AC 41496

Appellate Court of Connecticut.

Argued May 28, 2019

Officially released September 3, 2019

Deborah G. Stevenson, assigned counsel, for the appellant(petitioner).

James A. Killen, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and Thomas Garcia, senior assistant state's attorney, for the appellee(respondent).

Lavine, Devlin and Eveleigh, Js.

DEVLIN, J.

This is an appeal from the summary judgment rendered by the trial court in favor of the respondent, the state of Connecticut, on a civil petition for a new criminal trial filed by the petitioner, Toby A. Berthiaume.This case presents an issue that our courts have not previously addressed: Whether res judicata precludes a civil petition for a new trial based on a claim of newly discovered evidence when that same claim previously was litigated before the criminal court that had jurisdiction over the criminal matter but nonetheless lacked the authority to adjudicate the claim under our rules of practice.We conclude that, because the criminal court lacked the authority to rule on such a claim, it could not have issued a valid final decision, and, thus, the court's rendering summary judgment on the basis of the preclusive effect of that proceeding was improper.Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.¹

Following a jury trial, the petitioner was convicted of burglary in the first degree in violation of General Statutes § 53a-101 (a)(2), and his conviction was affirmed on direct appeal.State v. Berthiaume , 171 Conn. App. 436, 438, 157 A.3d 681, cert. denied, 325 Conn. 926, 169 A.3d 231, cert. denied, ––– U.S. ––––, 138 S. Ct. 403, 199 L. Ed. 2d 296(2017).

On direct appeal, this court set forth the following relevant facts."In mid-2013, the victim, Simone LaPointe, was ninety-three years old and resided at 126 Windsor Street in Enfield, her home for over four decades.She suffered from dementia and short term memory loss, and although she lived alone, was accompanied by either a friend or one of her surviving eleven children ‘most of the time.’Typically, the victim's friend stayed with her overnight, and her children took turns visiting her throughout the day.Despite this visitation schedule, there were gaps of time throughout the day in which the victim was home alone.Because the victim neither drove nor owned a car, her driveway would be empty during these gap periods, thus indicating that she was alone.

"On May 6, 2013, Marita Cunningham, one of the victim's daughters, arrived at 126 Windsor Street around noon, and departed, leaving the victim home alone, at approximately 12:50 p.m.When Cunningham left 126 Windsor Street, nothing inside the residence looked out of order and the victim was uninjured.About one hour later, Jessica Navarro-Gilmore, while passing by in a motor vehicle, saw the [petitioner] and another white man ‘walking suspiciously’ on a road near the victim's home while carrying what appeared to be ‘a twenty inch flat screen ... TV or monitor ....’The two men were ‘walking quickly and looking over their shoulder[s] suspiciously.’Drawing on her own experience committing theft offenses, Navarro-Gilmore immediately suspected that the two men had stolen something from a home in the neighborhood.After doubling back to get a better look at the men, Navarro-Gilmore called the police at 1:53 p.m. and reported what she had seen.

"At approximately 3 p.m., the victim called Norma Shannon, another of her daughters, and told Shannon that her knee was bleeding.Shannon went to 126 Windsor Street in response to the call, and upon entering, noticed that ‘the house had been ransacked ....’Various drawers and cabinets inside the house had been left open, jewelry and other items were lying on the victim's bed and dresser ‘as if they had been dumped there,’ and the dining room chandelier was broken.There was blood on the floor of the dining room, and the phone line in the living room, which was adjacent to the dining room, had been cut.The victim's knee was bandaged, and she had sustained a ‘mark on her nose,’ a bruise on her face, and a chipped tooth.A search of the home revealed that the victim's ring, which contained fourteen birthstones, and her nineteen inch flat screen television, had been stolen.

"At 3:44 p.m., the [petitioner] sold what was later determined to be the victim's ring and television at the Money Shop, a pawn shop and jewelry store located in Springfield, Massachusetts.In order to make the sales, the [petitioner] provided Jeffrey Fiske, the owner of the pawn shop, with his identification and had his photograph taken.The [petitioner] also provided his address, 116 Windsor Street, and telephone number.Fiske identified the [petitioner] as the person who received the sales proceeds.

"Thereafter, police showed Navarro-Gilmore a sequential photographic array that did not include a photograph of the [petitioner], and she did not identify anyone as one of the men she saw carrying the television on May 6, 2013.After developing the [petitioner] as a suspect, Detective Brian Callaghan of the Enfield Police Department searched the New England State Police Information Network, a database wherein local pawn shops record their daily transactions, which returned information on the Money Shop.On June 11, 2013, Fiske provided Detective Callaghan with sales slips, the [petitioner's] photograph, and the victim's television and ring.

"The [petitioner] was arrested on July 3, 2013, and charged with burglary in the first degree and several other offenses.Two days later, the [petitioner's] booking photograph, along with an article referencing the burglary, was published in the Enfield Patch, a local online newspaper.While browsing online, Navarro-Gilmore saw the [petitioner's] photograph and immediately recognized him as one of the men she saw carrying the television on May 6, 2013.Thereafter, Detective Callaghan contacted Navarro-Gilmore to request that she view another photographic array.Navarro-Gilmore indicated that she already had seen the [petitioner's] photograph in the Enfield Patch and therefore could not fairly participate in an identification procedure."(Footnotes omitted.)Id., at 438–41, 157 A.3d 681.

On June 10, 2014, after the jury's verdict, the trial court in the petitioner's criminal case, Mullarkey, J. , held a hearing originally intended for sentencing.Instead, the prosecutor notified the court that one of the state's witnesses, Navarro-Gilmore, recently had contacted the prosecutor's office seeking assistance regarding an arrest warrant for the witness' daughter.In response to this new information, the court postponed the sentencing and scheduled a subsequent hearing to allow the parties to question Navarro-Gilmore about this newly discovered information.Defense counsel then requested additional time to file a motion for a new trial.

On June 27, 2014, the court convened the first of a series of hearings regarding Navarro-Gilmore's telephone call to the prosecutor.Although defense counsel had not yet filed a motion for a new trial, she presented a number of witnesses to testify in support of this anticipated motion.Then, on August 8, 2014, defense counsel filed a petition for a new trial pursuant to Practice Book§ 42-55andGeneral Statutes § 52-270.The petitioner sought a new trial on the basis of newly discovered evidence regarding Navarro-Gilmore's alleged ulterior motives in testifying.This prompted a lengthy colloquy in which the court discussed whether this petition was proper:

"The Court: All right.So, as we discussed before court, this [petition] needs to be filed with the civil clerk's office because it is a civil action....

"[The Prosecutor]: Is it a civil motion for a new trial since he hasn't been sentenced yet?

"The Court: Well, [he's] filed a petition for new trial.

"[Defense Counsel]: I filed the petition under ... Practice Book [§] 42-55, which is under the Superior Court rules for criminal matters and—which does not make any reference to its being a civil action....

"The Court: Well, I wished it were under the criminal rules, or it remained under the criminal rules, but it doesn't....All I'm telling you is the [rules of] practice [require] you to file it across the street, and I will go forward with whatever evidence you have today.And if you both agree, I will use the evidence that we have already heard on this issue....And as long as the state goes along with that, we will treat it as evidence.All I can say to you is that I have no expertise in these civil concerns, but I have two or three others of these pending, and they are all filed across the street....

"[Defense Counsel]: I will try to learn as soon and as much as I can about the proper way to file the motion.I'd just like to be clear—

"The Court: My—my job is to make the decisions based on the evidence, and the arguments, and the law, which I'm prepared to go forward with today, and you go over and square up whatever you have to do with those people.I don't interfere with them or their processes....

"[The Prosecutor]: Your honor, I think the more appropriate motion is filed under [Practice Book §] 42-53, which is a motion for new trial.

"The Court: I'm not saying I disagree with you, but the [petitioner] has filed this motion.I cannot tell [him] what to file.

"[The Prosecutor]: I understand.But I think if it comes in as a petition for new trial, they don't have a perfected record for you to even entertain it because no—it's—it's not a disposed of matter.He hasn't even been sentenced yet.I believe the petitions require just that, and that's why it is separated from one to the other.And I think the court holds exclusive jurisdiction over a matter that is not yet sentenced.So, it wouldn't even be a civil filing where we would agree to this court hearing this.

"The Court:...