State v. Colton

• Decision Date: 08 August 1995
• Docket Number: No. 14885,14885
• Citation: 663 A.2d 339,234 Conn. 683
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Murray COLTON.

Page 339

663 A.2d 339

234 Conn. 683

STATE of Connecticut v. Murray COLTON.

No. 14885.

Supreme Court of Connecticut.

Argued May 31, 1995.

Decided Aug. 8, 1995.

Kenneth Rosenthal, with whom was Bonnie L. Patten, New Haven, for appellant (defendant).

Jack W. Fischer, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and James G. Brown, Asst. State's Atty., for appellee (State).

Before PETERS, C.J., and CALLAHAN, BERDON, NORCOTT and KATZ, JJ.

CALLAHAN, Associate Justice.

The defendant, Murray Colton, appeals from the judgment of the trial court denying his motion to dismiss, on the ground of double jeopardy, the criminal prosecution pending against him. The defendant has been tried three times for the murder of Patricia Konesky, whose body was found on January 13, 1987, in the dugout of a baseball field in New Haven. ¹ See General Statutes §§ 53a-54a and 53a-8. ² The first two trials were conducted in 1989 and 1990 and both resulted in mistrials after the jurors had reported that they were deadlocked. After a third trial, which was conducted in 1991, the defendant was convicted of murder and was sentenced to a fifty year term of imprisonment. On the defendant's appeal from his conviction, we reversed the judgment of the trial court and remanded the case for a new trial, concluding that the trial court had violated the defendant's constitutional right to confrontation by precluding certain evidence showing motive and bias on the part of the state's chief witness, Janice Tourangeau. State v. Colton, 227 Conn. 231, 233, 630 A.2d 577 (1993). ³

Subsequently, the state initiated a fourth prosecution of the defendant on the same charge. The defendant moved to dismiss, asserting that: (1) double jeopardy principles bar a fourth trial because of prosecutorial misconduct at the third trial; (2) there is insufficient evidence to proceed to trial because the testimony of the state's chief witness, who is now deceased, is unavailable; (3) a fourth trial would undermine the integrity of the court; and (4) a fourth trial would undermine the interests of justice. After a two day evidentiary hearing, the trial court denied the defendant's motion, reasoning that the claim of prosecutorial misconduct could not be brought in a motion to dismiss, because the defendant had not alleged prosecutorial misconduct either in a motion for mistrial during the previous trial or on appeal from his conviction at that trial. ⁴

The defendant appeals ⁵ from the trial court's ruling claiming that: (1) the court improperly concluded that his double jeopardy ⁶ claim on the basis of prosecutorial misconduct was barred as a matter of law; and (2) the trial court improperly prevented him from questioning the prosecutor to support his claim of double jeopardy on the basis of prosecutorial misconduct. ⁷ We are persuaded by the defendant's first argument. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.

I

The defendant first claims that the trial court improperly denied his motion to dismiss his fourth prosecution on double jeopardy grounds on the basis of alleged prosecutorial misconduct at his third trial. Under Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), and its progeny, the double jeopardy clause will bar the retrial not only of a criminal defendant whose conviction was reversed for evidentiary insufficiency, but also of a defendant whose conviction in the first trial was secured by prosecutorial misconduct.

The defendant's claim concerns the prosecutor's conduct in connection with the testimony of the state's chief witness, Tourangeau. Tourangeau's testimony at the third trial was summarized in Colton I as follows: "At trial, Tourangeau gave the following account of her activities on the night of the victim's murder. On the night of January 12, 1987, Tourangeau had been dropped off on Kimberly Avenue [in New Haven] by her friend, Cathleen Jones. Tourangeau was looking for the victim because she wanted the victim to obtain drugs for her. Tourangeau found the victim at Don Phillips Cafe, a bar owned by the defendant's father. The victim agreed to take drugs with Tourangeau, but told Tourangeau that Tourangeau would have to wait because she had something to do first.

"The victim told Tourangeau that she had to meet someone on Kimberly Avenue and, after Tourangeau persisted in asking to go along, the victim agreed that Tourangeau could accompany her as long as she remained unseen. The two separated briefly and were to meet on Kimberly Avenue near Saint Peter's Church. Tourangeau arrived at the church and, shortly thereafter, saw the victim on the corner of Kimberly Avenue and Second Street. Tourangeau approached the victim and asked if she had the drugs yet. The victim responded that she had to go to Saint Peter's Street and reminded Tourangeau to remain out of sight. The victim and Tourangeau took separate routes to Saint Peter's Street. Tourangeau walked down Kimberly Avenue to a path that led to the baseball field, which was located at the end of Saint Peter's Street. She walked several steps out from the path onto the field when she saw the victim standing with the defendant by a manhole cover. Tourangeau backed up to some bushes at the edge of the field to stay out of sight, and observed the victim and the defendant walk to the third base dugout and sit on the dugout bench. At this point Tourangeau was positioned approximately 190 feet from the third base dugout.

"Tourangeau observed the defendant suddenly stand up and pull the victim by her hair. Tourangeau then saw another man come from the side of the dugout and hit the victim on the side of the head. She described this man as having dark hair and a mustache, wearing tan boots and probably being Hispanic because he had dark skin. On cross-examination Tourangeau testified that when the victim had been struck she had seen something squirt out of the victim's head and had heard a 'squishing sound.' As a result of this blow, the victim was knocked forward facing the ground. Tourangeau then saw both the defendant and the second man kick the victim.

"At this point Tourangeau ran from the area. The second man noticed Tourangeau and yelled after her. Tourangeau kept running and sensed someone running behind her. She ran out onto Kimberly Avenue where she flagged down a car and jumped in. The driver of the car drove Tourangeau to her home. Tourangeau claimed that she then went into the bathroom and lay down in the bathtub until dawn, 'put[ting] it together.'

"Tourangeau did not learn that the victim had been killed until she watched the evening news on television later that day. During both the 6 p.m. and the 11 p.m. news broadcasts reporting the discovery of the victim's body, Tourangeau stated to her companions, 'That's Patty,' although neither broadcast had mentioned the name of the victim. ⁸ Tourangeau covered up for knowing the identity of the person on the news by saying that she had recognized the victim's boots. She never told anyone about her presence at the field the night before because she was afraid of retaliation and of being known as a snitch on the street and therefore being unable to get drugs. When Tourangeau was interviewed by the police one week later, she did not mention what she had seen, and provided no information about the murder until March, 1988." ⁹ State v. Colton, supra, 227 Conn. at 235-237, 630 A.2d 577.

"Tourangeau also testified on direct examination that, at the time of the murder, she had been addicted to heroin. She described her lifestyle at that time as a street life in which her principal interests were surviving and getting drugs, and explained that one of the reasons she had not come forward sooner had been the difficulty she would have had obtaining drugs if she had become known as a snitch. Tourangeau testified that prostitution was how she had made money at that time, and that she would spend all of her earnings on drugs. Tourangeau further testified that at the present time she was no longer addicted to drugs or engaged in prostitution. She stated that she had managed to overcome her addiction while in jail in 1989.

"When questioned about her desire for the reward money, ¹⁰ Tourangeau testified that when she had first come forward she had had no interest in the reward. She maintained, both in her statement to the police and at trial, that the sole motivating factor in deciding to reveal what she had seen was the emotional anguish she experienced from 'keeping it in.' She also testified that she had become interested in the reward only as 'soon as my life started to change.' When asked to describe this change, Tourangeau testified: 'I've gained part of a family back. I'm not a drug user. I need a new life.... I need to start my family and myself on a new life.' " Id., at 239-40, 630 A.2d 577.

In his motion to dismiss the fourth prosecution on the ground of double jeopardy, the defendant claimed that "the prosecutor at the third trial deliberately planned and elicited repeated testimony to the effect that Tourangeau had supposedly ceased all involvement in her prior lifestyle as a drug addict, prostitute and street hustler, and was now motivated solely by a new, normal way of life, and was therefore completely freed from the dominating needs ... characteristic of her past life. See State v. Colton, [supra, 227 Conn. at 239-42, 250-52 n. 20, 630 A.2d 577.]."

The defendant proffered several documents, some of which are sealed, in support of his claim of prosecutorial misconduct. These documents include police reports from both New Haven and Milford, which, the defendant alleges, indicate that Tourangeau continued her prior lifestyle even after 1989, the time that she claimed to have overcome her drug addiction and ceased to engage in prostitution. The gravamen of the defendant's claim is that although the prosecutor...