State v. Aparo

• Court: Connecticut Supreme Court
• Writing for the Court: Before PETERS; PETERS
• Citation: State v. Aparo, 223 Conn. 384, 614 A.2d 401 (Conn. 1992)
• Decision Date: 11 August 1992
• Docket Number: No. 14443,14443
• Parties: STATE of Connecticut v. Karin APARO.

Page 401

614 A.2d 401

223 Conn. 384

STATE of Connecticut v. Karin APARO.

No. 14443.

Supreme Court of Connecticut.

Argued June 2, 1992.

Decided Aug. 11, 1992.

Hope C. Seeley, with whom, on the brief, was Hubert J. Santos, Hartford, for appellant (defendant).

Judith Rossi, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and James E. Thomas, Senior Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and GLASS, COVELLO, BERDON and SANTANIELLO, JJ.

PETERS, Chief Judge.

The principal issue in this appeal is whether the principles of double jeopardy and collateral estoppel prohibit the state from retrying, on a charge of conspiracy to commit murder, a defendant who has been acquitted of a charge of accessory to murder. The defendant, Karin Aparo, was charged with one count of murder as an accessory in violation of General Statutes §§ 53a-54a(a) ¹ and 53a-8, ² and one count of conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) ³ and 53a-54a(a). a jury acquitted her of the accessory charge but could not reach a verdict on the conspiracy charge. After the trial court declared a mistrial on the conspiracy count, the state announced its intention to retry the defendant on that count. The defendant filed a motion to dismiss all pending charges. Upon the trial court's denial of this motion, the defendant took an interlocutory appeal to the Appellate Court, which we transferred to ourselves pursuant to Practice Book § 4023 and General Statutes § 51-199(c). ⁴ We affirm in part and reverse in part.

The defendant has raised three issues on appeal. She maintains that the trial court should have granted her motion to dismiss and barred her retrial for conspiracy because: (1) principles of double jeopardy preclude retrial when six out of twelve jurors vote for acquittal; (2) principles of collateral estoppel preclude retrial, because the jury necessarily found that she had never intended that her mother be killed; and (3) principles of collateral estoppel require the exclusion of certain evidence, leaving insufficient admissible evidence to warrant a retrial. We reject the first and second of these claims, and accept the third in part.

I

The defendant first claims that, because she obtained six votes for acquittal on the conspiracy count, and because that count could have been tried by a jury of six, the double jeopardy clause of the fifth amendment, which "serves to safeguard defendants in criminal proceedings against multiple punishments or repeated prosecutions for the same offense"; State v. Aillon, 182 Conn. 124, 127, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S.Ct. 883, 66 L.Ed.2d 817 (1981); protects her against a second prosecution.

On February 17, 1988, the defendant moved to sever the murder and conspiracy counts on the ground, inter alia, that she was entitled under General Statutes §§ 54-82b(c) and 54-82(c) to a jury of twelve for the crime of murder and a jury of six for the crime of conspiracy. On April 26, 1990, she supplemented her motion by arguing in the alternative that, if the court denied the motion to sever the counts, two juries should be empaneled, one of twelve jurors for the murder count and one of six jurors for the conspiracy count. The motion was denied and an exception was taken.

The vote on the mistried conspiracy count was seven to five for acquittal. The defendant contends that, having secured at least six votes in her favor, she is protected by principles of double jeopardy from retrial. She claims that this is so, first, because she alleges that the trial court should have granted her request for a jury of six on the conspiracy count, and second, because the factual elements of the conspiracy count were resolved in her favor by six jurors, the same number she would have to persuade on retrial.

Section 54-82b(c) provides: "In any criminal trial by a jury, except as otherwise provided by law, such trial shall be by a jury of six." Section 54-82(c) provides that "no person, charged with an offense which is punishable by death or life imprisonment, shall be tried by a jury of less than twelve without his consent." We do not read these provisions to require that separate juries be provided when only some of the charges against a defendant are punishable by death or life imprisonment. Had the legislature intended such an extraordinary measure, it would have explicitly provided for it. In this case, had the defendant preferred a jury of six, she could have so elected.

We decline the defendant's invitation to speculate that, had she consented to a trial before a jury of six, it would have consisted of six of the seven jurors who voted for acquittal. Because the jury did not come to any conclusion, the vote tally is legally irrelevant. "It is settled doctrine in Connecticut that a valid jury verdict in a criminal case must be unanimous.... A nonunanimous jury therefore cannot render any 'finding' of fact." State v. Daniels, 207 Conn. 374, 388, 542 A.2d 306 (1988), cert. denied, 489 U.S. 1069, 109 S.Ct. 1349, 103 L.Ed.2d 817 (1989). This claim is therefore without merit.

II

Next, the defendant claims that collateral estoppel prevents the state from retrying her on the charge of conspiracy, because such a retrial would permit the state to relitigate issues necessarily decided in her favor in the first trial. Collateral estoppel is given constitutional dimensions by the double jeopardy clause. It is well established that retrial following a jury deadlock does not violate the constitutional provision against double jeopardy. Aillon v. Manson, 201 Conn. 675, 678, 519 A.2d 35 (1986); State v. Aillon, supra, at 129-30, 438 A.2d 30.

We recently discussed in some detail the relationship between double jeopardy and collateral estoppel. In State v. Hope, 215 Conn. 570, 577 A.2d 1000 (1990), cert. denied, --- U.S. ----, 111 S.Ct. 968, 112 L.Ed.2d 1054 (1991), we stated: "In a criminal case, collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 445, 90 S.Ct. 1189, 1195, 25 L.Ed.2d 469 (1970). ' "Collateral estoppel" is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.' Id., [at] 443 . 'Collateral estoppel applies in two ways: (1) it may bar prosecution or argumentation of facts necessarily established in a prior proceeding; or (2) it may completely bar subsequent prosecution where one of the facts necessarily determined in the former trial is an essential element of the conviction the government seeks. United States v. Griggs, 735 F.2d 1318 (11th Cir.1984).' United States v. DeMarco, 791 F.2d 833, 836 (11th Cir.1986).

"To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the government is attempting to relitigate those facts in the second proceeding. De La Rosa v. Lynaugh, 817 F.2d 259, 263 (5th Cir.1987); United States v. Irvin, 787 F.2d 1506, 1515 (11th Cir.1986). 'A defendant who argues that Ashe is applicable to his case carries the burden of establishing that the issue he seeks to foreclose from consideration in the second case was "necessarily" resolved in his favor in the prior proceeding. United States v. Seijo, 537 F.2d 694, 697 (2d Cir.1976), cert. denied, 429 U.S. 1043, 97 S.Ct. 745, 50 L.Ed.2d 756 (1977).' United States v. Castro, 629 F.2d 456, 465 (7th Cir.1980). Furthermore, when a defendant is acquitted of conspiracy and then retried on the substantive offense, 'if it can be determined that the first jury must have determined an ultimate fact common to the conspiracy and substantive crimes in the defendant's favor, acquittal of conspiracy may prevent the government from introducing the evidence necessary to convict the defendant of the substantive offense in a subsequent trial.' United States v. Bollinger, 796 F.2d 1394, 1406 (11th Cir.1986).

" 'The federal decisions have made clear that the rule of collateral estoppel in criminal cases is not to be applied with the hypertechnical and archaic approach of a 19th century pleading book, but with realism and rationality. Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to "examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration." The inquiry "must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings." Sealfon v. United States, 332 U.S. 575, 579 [68 S.Ct. 237, 92 L.Ed. 180 (1948) ]. Any test more technically restrictive would, of course, simply amount to a rejection of the rule of collateral estoppel in criminal proceedings, at least in every case where the first judgment was based upon a general verdict of acquittal.' Ashe v. Swenson, supra, [397 U.S. at] 444, 90 S.Ct. at 1194]." State v. Hope, supra, 215 Conn. at 584-85, 577 A.2d 1000.

In Hope, the state sought to prosecute the defendant for aiding and abetting murder after the defendant had been acquitted of conspiracy to commit capital felony murder and the lesser included offense of conspiracy to commit murder. We held that the trial court should have granted the defendant's motion to dismiss, because in the earlier prosecution the jury had necessarily determined that the defendant lacked the specific intent that the victim be murdered. Because that same intent would have been an element essential to the prosecution for...