State v. Butler

Decision Date17 December 2002
Docket NumberNo. 16610.,16610.
Citation262 Conn. 167,810 A.2d 791
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Harold Trent BUTLER.

Avery S. Chapman, for the appellant (defendant).

Robert J. Scheinblum, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, Michael Pepper, senior assistant state's attorney, and Susan C. Marks, supervisory assistant state's attorney, for the appellee (state).

SULLIVAN, C.J.

The sole issue in this interlocutory appeal is whether the trial court properly denied the defendant's motion to dismiss, on double jeopardy grounds, the charges pending against him. We affirm the trial court's decision.

The defendant was convicted of murder as an accessory in violation of General Statutes §§ 53a-54a (a)1 and 53a-82 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a (a) and 53a-48 (a).3 The Appellate Court overturned his conviction in State v. Butler, 55 Conn.App. 502, 739 A.2d 732 (1999), and remanded the case for a new trial. Id., 519, 739 A.2d 732. Following our grant of certification; State v. Butler, 252 Conn. 941, 747 A.2d 520 (2000); we affirmed that decision in a per curiam opinion. State v. Butler, 255 Conn. 828, 769 A.2d 697 (2001).

In its opinion overturning the defendant's conviction, the Appellate Court set forth the following relevant facts: "On March 21, 1994, Officer William Coppola of the New Haven police department was dispatched to 305 Exchange Street, where he discovered the body of the victim, Amenophis Morris. The victim had sustained fatal gunshot wounds. At the defendant's trial, Jeffrey Dolphin testified for the state concerning the circumstances surrounding the murder. Dolphin testified that on March 21, 1994, Terrance Stevenson forced him at gunpoint into a motor vehicle driven by James Baker. Jermaine Harris and the defendant were passengers in Baker's vehicle.

"Dolphin testified that when Baker was driving on Exchange Street, one of the vehicle's occupants noticed the victim standing on the front porch of 305 Exchange Street. Baker then parked the vehicle farther down the block. Dolphin testified that Stevenson and Harris exited the vehicle and walked toward the victim. Baker and the defendant then exited the vehicle and waited near the front of the car. Dolphin testified that shortly after he heard six or seven gunshots, Harris, Baker, Stevenson and the defendant returned to the vehicle, and either Harris or Stevenson stated, `I got the mother ... I got the asshole.'

"Dolphin did not immediately contact the police. On April 22, 1994, the police arrested Dolphin on unrelated narcotics charges, and he provided information about the murder. The police subsequently arrested Harris, Stevenson, Baker and the defendant, and charged them with murder as accessories and conspiracy to commit murder. Dolphin testified at the trials of Baker and Stevenson, which preceded the defendant's trial, and Baker and Stevenson were convicted on both charges. In the present case, the jury found the defendant guilty of murder as an accessory and conspiring to commit murder. He received a total effective sentence of fortyfive years imprisonment....

"The defendant [appealed, claiming] that the trial court improperly denied his motions for a mistrial, which he based on the existence of egregious prosecutorial misconduct that deprived him of his due process right to a fair trial in violation of the federal constitution. ... At trial, the prosecutor claimed that the defendant aided and abetted Baker, Harris and Stevenson in murdering the victim, and conspired with them to commit the murder. In its appellate brief, the state concedes that the jury was informed that the trials of Baker and Stevenson had preceded the defendant's trial and that Dolphin had testified in those trials.

"In closing argument to the jury, defense counsel stated: `[O]ne of the most difficult parts about [this case] has been tracking all of the inconsistencies of the state's witness, Mr. Dolphin. The witness for the state, Jeffrey Dolphin, has lied to you, ladies and gentlemen. He has lied to the police, he has lied to other juries, he has lied to you as members of this jury. He has lied to an officer of the court, attorney [Leo] Ahern. But don't take my word for it, just look at his testimony....' The prosecutor neither objected to this statement when it was made, nor did he object at the conclusion of defense counsel's closing argument, nor did he request a curative instruction or some other remedy.

"Instead, in rebuttal, the prosecutor stated: `[T]he other thing [defense counsel] said to you — I do not want you to be left with the wrong impression — he said that [Dolphin] has lied to other juries. Well, let me tell you, ladies and gentlemen, I wish I could tell you what other juries decided, but I am not allowed to.' ... At the conclusion of the prosecutor's rebuttal, after the court had excused the jury, defense counsel orally moved for a mistrial. The court stated: `That is absolutely some of the most impermissible argument I have heard.... I am so upset about this, and I am going to think about it during the lunch hour....' After the lunch recess, defense counsel filed a written motion for dismissal, mistrial, surrebuttal time or a corrective instruction. The prosecutor claimed that his statement was invited by defense counsel and that he was merely attempting to counteract defense counsel's assertion that Dolphin had lied to other juries. Defense counsel responded that his statement merely referred to the inconsistencies in Dolphin's testimony in this trial and the two previous trials. The court agreed with defense counsel. Despite stating that the prosecutor's comment was prejudicial, improper and unprofessional, the court denied the defendant's motions for dismissal and a mistrial, but granted the request for a curative instruction." State v. Butler, supra, 55 Conn.App. 503-506, 739 A.2d 732. The Appellate Court ruled that a mistrial should have been granted, reversed the judgment of guilty and remanded the case for a new trial. Id., 503, 519, 739 A.2d 732. We affirmed the Appellate Court's decision. State v. Butler, supra, 255 Conn. 830, 769 A.2d 697.

Thereafter, pursuant to the fourteenth amendment to the United States constitution, article first, §§ 7 through 9, of the constitution of Connecticut, and Practice Book § 41-8(6), the defendant moved to dismiss the charges, maintaining that a retrial would deprive him of his right not to stand trial twice for the same offense. The trial court concluded that, in the present case, a retrial would be permissible unless the prosecutor's misconduct in the first trial was done with the intent to provoke the defendant into moving for a mistrial. The trial court found that there had been no such intent, finding instead that "[c]learly ... the circumstances of this case suggest that the comments of the state, though improper and out of proportion to its goal, were, at least, precipitated by and intended to respond to the objectionable comments of defense counsel. The state's comments do not appear to be independently devised or designed to provoke a mistrial." Accordingly, the trial court denied the motion to dismiss. Thereafter, the defendant filed an interlocutory appeal with the Appellate Court, which we transferred to this court pursuant to General Statutes § 51-199(c) and Practice Book § 65-1. We affirm the decision of the trial court.4

The defendant challenges both the legal conclusion and the factual finding of the trial court with regard to his double jeopardy claim. We find neither argument persuasive.5 We consider the defendant's legal claim first.

The defendant claims that the trial court applied an improper legal standard in determining whether double jeopardy barred his retrial. Specifically, although the defendant acknowledges that the double jeopardy clause does not ordinarily bar retrial where, as in the present case, a defendant has moved for a mistrial in the first trial, he claims that there are two exceptions to this rule under which double jeopardy principles will bar retrial notwithstanding a defendant's motion for a mistrial. He claims that retrial is barred when either (1) prosecutorial misconduct in the first trial was designed to provoke a defendant into moving for a mistrial or (2) the misconduct was motivated by an intent to harass or prejudice a defendant, and that the trial court improperly concluded that he could prevail on his double jeopardy claim only if he could demonstrate that the first exception applied. We conclude that the trial court properly recognized that the defendant could not prevail on his double jeopardy claim merely by demonstrating that prosecutorial misconduct in the first trial was motivated by an intent to harass or prejudice the defendant.

We begin by noting that, because this claim presents an issue of law, our review is plenary. See, e.g., State v. Tuchman, 242 Conn. 345, 351, 699 A.2d 952 (1997), cert. dismissed, 522 U.S. 1101, 118 S.Ct. 907, 139 L.Ed. 2d 922 (1998). The basic contours of double jeopardy jurisprudence are well established. "The double jeopardy clause of the fifth amendment to the United States constitution provides: `[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb....' This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment.... The Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy."6 (Citation omitted.) State v. Ferguson, 260 Conn. 339, 360, 796 A.2d 1118 (2002).

"The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.... As a part...

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