State v. Aillon

CourtSupreme Court of Connecticut
Writing for the CourtBefore COTTER; COTTER
Citation182 Conn. 124,438 A.2d 30
PartiesSTATE of Connecticut v. Guillermo AILLON.
Decision Date12 August 1980

Howard A. Jacobs, Sp. Public Defender, with whom was John W. Watson, Deputy Asst. Public Defender, for appellant (defendant).

Linda K. Lager, Asst. State's Atty., with whom was Arnold Markle, State's Atty., for appellee (state).


COTTER, Chief Justice.

This appeal raises the issue whether the double jeopardy clause of the United States constitution prohibits a third trial of a defendant who successfully petitioned for a new trial after his first trial, which resulted in a conviction, and whose second trial terminated in a mistrial when the jury could not agree on a verdict.

The defendant was arrested and charged with three counts of murder alleged to have occurred in August, 1972. On September 1, 1973, after a trial to a jury, he was found guilty of murder on all three counts.

The accused after a conviction filed a petition for a new trial, which the trial court granted after a hearing on his petition. The state appealed from that order granting the accused a new trial and this court ordered a new evidentiary hearing which concerned a two-minute conversation between the presiding judge and a juror as to the continuance of deliberations after 10 p. m. Aillon v. State, 168 Conn. 541, 544, 363 A.2d 49 (1975). After the second hearing on the propriety of this brief conversation at which the juror but not the judge testified, the trial court denied the new trial petition. The defendant appealed from that denial and this court reversed, concluding that the state failed to overcome the presumption of prejudice since the juror's testimony was not rebutted, and ordered a new trial. Aillon v. State, 173 Conn. 334, 377 A.2d 1087 (1977). The second full trial concluded on March 11, 1979, when the jury were discharged because they were unable to reach a verdict.

When a mistrial was declared after his second trial, the defendant moved for entry of a judgment of acquittal on three grounds: (1) double jeopardy; (2) Practice Book, 1978, §§ 889 and 898; and (3) judicial discretion. Upon the trial court's (Quinn, J.) denial of the defendant's motion, the defendant appealed to this court. The state moved to dismiss the appeal and we granted this motion except as to the defendant's double jeopardy claim on the ground that no final judgment had been entered in the cases appealed. 1 Thus, the sole matter now before us is the defendant's contention that the state cannot proceed with a third trial because such a trial would violate the federal constitutional guarantee against placing a criminal defendant twice in jeopardy for the same offense. 2

The argument underlying the defendant's claim is essentially two-pronged. In seeming recognition of the principle that when a mistrial is declared at the defendant's request or with his consent, the double jeopardy clause does not bar subsequent retrial; see, e.g., United States v. Dinitz, 424 U.S. 600, 608, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267; United States v. Jorn, 400 U.S. 470, 484, 91 S.Ct. 547, 556, 27 L.Ed.2d 543; United States v. Tateo, 377 U.S. 463, 467, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448; see also United States v. Gordy, 526 F.2d 631, 635 n.1 (5th Cir.); United States v. Goldstein, 479 F.2d 1061, 1066 (2d Cir.), cert. denied, 414 U.S. 873, 94 S.Ct. 151, 38 L.Ed.2d 113; the defendant contends, as a threshold matter, that his actions at the time the trial court declared a mistrial are not a bar to a consideration of his double jeopardy claim. Secondly, the defendant seeks, by arguing for a characterization of his situation as presenting a case where two juries have failed to agree on a verdict, to have this court deem reprosecution barred by the double jeopardy clause. We cannot agree with either of the defendant's arguments, both of which would have the effect of circumventing settled analysis and doctrine under the double jeopardy clause. The novelty of the defendant's claim in this jurisdiction, however, necessitates our discussion of his two-pronged argument.

The double jeopardy clause of the fifth amendment serves to safeguard defendants in criminal proceedings against multiple punishments or repeated prosecutions for the same offense. United States v. Dinitz, supra, 424 U.S. 606, 96 S.Ct. 1079. This constitutional protection, however, does not guarantee a defendant that the government will be prepared, in all circumstances, to vindicate society's interest in law enforcement by a single proceeding for a given offense. United States v. Jorn, supra, 400 U.S. 483-84, 91 S.Ct. 556. 3 To compel the government to do so "would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed." Wade v. Hunter, 336 U.S. 684, 688-89, 69 S.Ct. 834, 837, 93 L.Ed. 974. Thus, a defendant's double jeopardy interests, which include his right to have his criminal trial completed by a particular tribunal, must in some instances be subordinated to society's interest "in fair trials designed to end in just judgments." Id., 689, 69 S.Ct. 837.

Where a mistrial has been declared, Mr. Justice Story's 1824 opinion in United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165, has provided the guiding principles for determining when trials should be discontinued. In that seminal case, the court held that the question of whether under the double jeopardy clause there can be a new trial after a mistrial depends on whether "there is manifest necessity for the (mistrial), or the ends of public justice would otherwise be defeated." Id., 580. See, e.g., United States v. Dinitz, supra, 424 U.S. 606-607, 96 S.Ct. 1079; Illinois v. Somerville, 410 U.S. 458, 461, 93 S.Ct. 1066, 1069, 35 L.Ed.2d 425; Gori v. United States, 367 U.S. 364, 368-69, 81 S.Ct. 1523, 1526, 6 L.Ed.2d 901; Simmons v. United States, 142 U.S. 148, 153-54, 12 S.Ct. 171, 172, 35 L.Ed. 968.

However, as Perez and its progeny, e.g., United States v. Dinitz, supra, 424 U.S. 608, 96 S.Ct. 1080, and United States v. Jorn, supra, 400 U.S. 484, 91 S.Ct. 556, make clear, when a defendant consents to a declaration of a mistrial, no finding of manifest necessity for the declaration need be made. This is so because when a mistrial declaration is made without a defendant's consent, the defendant has been deprived of his "valued right to have his trial completed by a particular tribunal"; Wade v. Hunter, supra, 336 U.S. 689, 69 S.Ct. 837; and the Perez doctrine of manifest necessity serves to ensure that this right is not foreclosed without the exercise of scrupulous judicial discretion. 4 United States v. Jorn, supra, 400 U.S. 485, 91 S.Ct. at 557.

When, however, as a result of a jury's inability to reach a verdict, a mistrial is declared at the defendant's request or with his consent, any barrier to reprosecution is removed. In these circumstances, the principle underlying the double jeopardy clause that the defendant retain primary control over the course of the proceedings; United States v. Scott, 437 U.S. 82, 93-94, 98 S.Ct. 2187, 2194-2195, 57 L.Ed.2d 65; has been followed. Thus reprosecution where a defendant requests or consents to a mistrial declaration is barred only when prosecutorial or judicial overreaching is designed to provoke the defendant into asking for a mistrial, thereby avoiding an acquittal or affording the state another, perhaps more favorable, opportunity to convict, or the prosecutorial or judicial error was otherwise motivated by bad faith or attempted in order to harass or prejudice the defendant. See, e.g., Lee v. United States, 432 U.S. 23, 33-34, 97 S.Ct. 2141, 2147, 53 L.Ed.2d 80; United States v. Dinitz, supra, 424 U.S. 611, 96 S.Ct. 1081; Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 1034, 10 L.Ed.2d 100. This result is clearly dictated by logic since in the absence of intentional misconduct on the prosecutor's or judge's part and prejudice stemming from the misbehavior, a defendant's decision to ask for a mistrial or consent to one is voluntary and a strategic choice clearly not coerced by the defect in the trial. See Drayton v. Hayes, 589 F.2d 117, 122 (2d Cir.). 5

Thus, since no allegation of prosecutorial or judicial bad faith has been made, it would seem that our inquiry should first be whether the defendant did consent to the court's mistrial declaration and, if and only if we determine that his actions did not constitute consent, should a determination be made as to whether the trial court's declaration of a mistrial was within its sound discretion. See, e.g., Drayton v. Hayes, supra, 121. Apparently in the recognition, however, that in this case consent 6 or manifest necessity 7 could readily be found, the defendant does not contend that he did not consent to the trial court's declaration of a mistrial or that there was not manifest necessity for the court's declaration. Rather the defendant claims, in essence, that this is a case where two juries have failed to agree, in spite of the fact that the first jury brought in a conviction, and as such is one where this court should review not whether there was manifest necessity for a mistrial declaration but whether there is manifest necessity for a retrial. The defendant seeks to have us determine, under the double jeopardy clause, whether there is a need for a new trial by balancing the public's right to seek a final resolution of the charges against the defendant against his interest in putting his risk at an end. The defendant does not deny that his interest, which is usually expressed as his right "to have his trial completed by the particular tribunal summoned to sit in judgment on him"; Downum v. United States, supra, 372 U.S. 736, 83 S.Ct. 1034; has been taken...

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    ...State v. Kemp, 124 Conn. 639, 646-47, 1 A.2d 761 (1938) (permitting defendant access to grand jury minutes); compare State v. Aillon, 182 Conn. 124, 126, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981) (colorable double jeopardy claim immediately appeal......
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    • 10 Septiembre 1985 a previous appeal to this court had argued that his retrial was barred under principles of double jeopardy. See State v. Aillon, 182 Conn. 124, 438 A.2d 30, cert. denied, 449 U.S. 1090, 101 S.Ct. 883, 66 L.Ed.2d 817 (1980) (Aillon I ). The basis of his double jeopardy claim concerned the......
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