State v. Anderson

• Decision Date: 02 March 2010
• Docket Number: No. 18350.,18350.
• Citation: 988 A.2d 276,295 Conn. 1
• Parties: STATE of Connecticut v. Richard ANDERSON State of Connecticut v. Janice Anderson.
• Court: Connecticut Supreme Court

988 A.2d 276

295 Conn. 1

STATE of Connecticut v. Richard ANDERSON

State of Connecticut v. Janice Anderson.

No. 18350.

Supreme Court of Connecticut.

Argued October 19, 2009.

Decided March 2, 2010.

Allison Near, with whom, on the brief, were William F. Dow II and Trisha M. Morris, New Haven, for the appellants (defendants).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Kevin T. Kane, chief state's attorney, John R. Whalen, supervisory assistant state's attorney, and John H. Malone, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and KATZ, PALMER, VERTEFEUILLE, ZARELLA and McLACHLAN, Js.

ZARELLA, J.

The issue in this interlocutory¹ appeal² is whether the trial court abused its discretion in declaring a mistrial, over the defendants' objection, on the ground of manifest necessity after the senior assistant state's attorney had become seriously ill and was unable to continue with the trial. We conclude that the trial court did not abuse its discretion.

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),³ and one count of conspiracy to commit larceny in the first degree in violation of § 53a-122(a)(2) and General Statutes § 53a-48(a). The two informations were consolidated for trial. On May 2, 2007, jury selection commenced and continued for approximately fifteen days. Six jurors and four alternate jurors ultimately were selected. During voir dire of the potential jurors, the court, Schimelman, J.,⁴ informed the jurors that the trial was expected to start on June 12, 2007, and to last approximately five and one-half weeks.

On June 12, 2007, the jury was sworn, and the state began its case-in-chief. The trial continued until Friday, June 22, 2007. During that time, eight witnesses testified and nearly 400 exhibits were introduced. On June 24, 2007, the trial court was informed that the senior assistant state's attorney prosecuting the case, John H. Malone, had become seriously ill and had to be hospitalized. The court delayed the trial until July 5, 2007, in the hope that Malone would be able to return.

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 resuming 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 not be able to replace Malone because of the complexity of this case. The court agreed, on the basis of its own observations, that the case was "very complex," and noted that the state already had offered more than 300 exhibits into evidence but had not yet reached "the heart of the case...." The court further observed that the forensic accountants had yet to testify and that their testimony was expected to be lengthy. The court informed the parties that it did not believe that it was feasible to continue with the trial and, therefore, that it intended to declare a mistrial on the ground of manifest necessity.

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 circumstances," including (1) "the medical condition of ... Malone," (2) "the lack of the ability to ask another [prosecutor] to step in because the preparation time ... would be significant," and (3) "the fact that [there are] jurors who [were] already chomping at the bit, so to speak, because of the time constraints that [the court] had originally estimated and because of the fact that these jurors [had] things that they had planned to do."

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 unavailability of a substitute prosecutor and that the defendants never disputed or challenged such representations or the court's finding that the case was "very complex...." Accordingly, the state argues that the trial court was not required to poll the jurors as to their availability before declaring a mistrial because such an act would have been futile, as there was no future date certain when the trial could resume. The state therefore argues that, on the basis of the totality of the circumstances, the trial court properly exercised its discretion in declaring a mistrial on the ground of manifest necessity. We agree with the state and, therefore, conclude that the court, Handy, J., properly denied the defendants' motion to dismiss.

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,⁵ we have held that "the due process and personal liberty guarantees provided by article first §§ 8⁶ and 9,⁷ of the Connecticut constitution . . . encompass the protection against double jeopardy." (Internal quotation marks omitted.) State v. Kasprzyk, 255 Conn. 186, 192, 763 A.2d 655 (2001). The protection afforded against double jeopardy under the Connecticut constitution "mirrors, rather than exceeds," that which is provided by the constitution of the United States. (Internal quotation marks omitted.) State v. Michael J., 274 Conn. 321, 350, 875 A.2d 510 (2005). In a trial by jury, "[j]eopardy attaches once the jury has been selected and sworn. . . . Illinois v. Somerville, 410 U.S. 458, 467, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973)." (Citation...