State v. Hope

• Decision Date: 10 July 1990
• Docket Number: No. 13720,13720
• Citation: 215 Conn. 570,577 A.2d 1000
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. James Y. HOPE.

Page 1000

577 A.2d 1000

215 Conn. 570

STATE of Connecticut v. James Y. HOPE.

No. 13720.

Supreme Court of Connecticut.

Argued May 4, 1990.

Decided July 10, 1990.

Hubert J. Santos, Hartford, for appellant (defendant).

C. Robert Satti, Sr., State's Atty., for appellee (State).

Before PETERS, C.J., and SHEA, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

The dispositive issue in this appeal is whether the state is barred by the double jeopardy clause from prosecuting 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. Because an understanding of the facts of this case is necessary to examine its procedural history, we shall summarize the relevant evidence presented at the defendant's first trial, prior to detailing the procedural history of the case.

Geraldine Burke wanted to have her third husband, Donald Burke, to whom she had been married for two years, killed because of his alleged maltreatment of her. In furtherance of this plan, Geraldine Burke asked her daughter, Tammy Pate, to find someone to commit the murder. In June, 1981, Tammy Pate began to date John McGann, and subsequently introduced McGann to her mother. In July, 1981, Geraldine Burke asked McGann whether he knew anyone whom she could pay to kill her husband. A few days later, McGann told Geraldine Burke that he had found someone to commit the murder and that it would cost $4000. Geraldine Burke then borrowed $3500 from a neighbor, which she gave to McGann with the understanding that McGann would advance the balance of $500 himself to make $4000.

McGann had spoken previously to an individual named George Rooney, an auto mechanic in Groton, in regard to having someone eliminated. After four or five meetings, Rooney told McGann that the job could be done by someone in Rhode Island for $3000. In July, 1981, McGann gave Rooney $1500 in cash saying he would return a few days later with the balance of $1500. At that time, McGann also gave Rooney a photograph of Donald Burke that had Burke's vehicle registration number and the type of vehicle that he drove written on the back. Two or three days later, McGann saw Rooney again and paid him the outstanding $1500. After paying Rooney, McGann had a number of bills left over, which he put back in his pocket. Rooney then told McGann that the job would take two or three weeks to complete.

On July 20, 1981, shortly after Geraldine Burke had given McGann the $3500, she entered the hospital for treatment of an ulcer. It had been planned that Donald Burke would be murdered while she was in the hospital. Towards the end of her stay, however, McGann told her that it looked as though Rooney might not have Donald Burke killed and, if that were the case, he would do the job himself. Upon leaving the hospital on August 6, 1981, Geraldine Burke went with Tammy Pate to a picnic at a friend's house on Niantic River Road in Waterford. McGann and the defendant attended the picnic as well. Throughout June and July, 1981, McGann, a friend of the defendant, had told him of the situation at the Burke house and the plot to kill Donald Burke. While at the picnic, Geraldine Burke claimed that the defendant told her that he would rather kill Donald Burke himself because McGann would "screw it up" and because he (the defendant) could "kill [Donald Burke] with just one blow" as a result of his knowing some type of karate.

Later that day, McGann and Geraldine Burke left the picnic and walked across the street to the defendant's house to use the phone. Tammy Pate and the defendant also walked over to the defendant's house and arrived there just as McGann was getting off of the phone. McGann said that he did not think he could get the money back from Rooney, and added that, if he did not get the money back, he would do the job himself. That night, McGann mentioned to the defendant drugging, strangling or shooting Donald Burke.

On August 8, 1981, at approximately 2:30 p.m., Geraldine Burke and Tammy Pate picked up McGann at his house and drove to Danny's Cafe, a bar in Niantic. McGann said to Geraldine Burke that "[t]onight's the night," and a discussion was held about drugging Donald Burke with valium in order to kill him. Later, they returned to the Burke house where Geraldine Burke filled a capsule with four crushed tablets of valium with the intention of giving the capsule to Donald Burke. Tammy Pate then gave McGann a ride home. Donald Burke returned home from work around 5 or 5:30 p.m. and Tammy Pate gave him a large glass of wine and he soon fell asleep. At about 6 or 6:30 p.m., the defendant picked up McGann and went to Danny's Cafe. At about 10 p.m., Tammy Pate joined McGann, the defendant and John Pate, Jr., Geraldine Burke's son, at Danny's Cafe.

McGann asked Tammy Pate to phone her mother from Danny's Cafe. Geraldine Burke told Tammy Pate on the phone that Donald Burke had fallen asleep, and Tammy Pate then handed the phone to McGann. As a result of her telephone conversation with McGann, Geraldine Burke took her husband's .22 caliber pistol from his truck, put it in the back seat of her car, and drove to the parking lot of Mitchell's Grocery Store with her ex-sister-in-law, Carrol Pate. While inside Danny's Cafe, McGann told the defendant that he was going to kill Donald Burke and asked if he would help move the body. The defendant, McGann and John Pate, Jr., then went outside Danny's Cafe, where, according to John Pate, Jr., the defendant told him that he and McGann were going to his house to kill his stepfather, Donald Burke. McGann, the defendant and John Pate, Jr., then walked over to the parking lot of Mitchell's Grocery Store to meet Geraldine Burke, where, according to Geraldine Burke, the defendant said to her: "I told your son I'm going to kill ... your husband tonight.... He has the right to know." McGann then got the pistol out of Geraldine Burke's car and was driven by the defendant to the Burke house.

Geraldine Burke left the parking lot with Carol Pate, stopped at a Burger King, and met the defendant and McGann back at her house. The defendant was waiting at the back door and entered the house with Geraldine Burke and Carrol Pate. According to Geraldine Burke, the following sequence of events then transpired. The defendant asked which room was Donald Burke's, and Geraldine Burke said that it was down the hall. The defendant led Geraldine Burke down the hall and told her to go into the bedroom to see if Donald Burke was asleep. The defendant then told Geraldine Burke to get into the living room, and as she walked away she heard blows being struck in the bedroom. At that time, McGann went into Donald Burke's bedroom and a shot was fired. McGann then left the bedroom to unjam the pistol, and Geraldine Burke once again heard the sound of blows being struck in the bedroom. McGann returned to the bedroom, and Geraldine Burke heard more shots and blows. Finally, Geraldine Burke heard McGann say "[s]top hitting him; he's dead," and the defendant say "[h]e died hard, didn't he?" The defendant then ordered Geraldine Burke to get something to cover Donald Burke's body, and she returned with an afghan and a plastic bag. The defendant and McGann put Donald Burke's body into the plastic bag, covered it with the afghan, and dragged it outside and put it into Donald Burke's truck. The defendant and McGann then proceeded to remove other incriminating evidence from the house.

The defendant, however, testified that he never told Geraldine Burke that he could or would kill Donald Burke, and that he never told John Pate, Jr., that he was going to kill Donald Burke, but rather told him only that Geraldine Burke and McGann were going to kill Donald Burke. In addition, the defendant testified that, although he went to the Burke residence knowing of the plan by McGann and Geraldine Burke to kill Donald Burke, he had no intention of committing murder. Instead, he claimed that he had actually offered Geraldine Burke money to forget her plan to have Donald Burke killed, and that he drove McGann to the Burke house in the hope of persuading him and the others not to kill Donald Burke. Thus, while the defendant admitted to being present at the Burke house when Donald Burke was killed, he denied beating Donald Burke or even being present in the room when Donald Burke was killed. Rather, he claimed that he was sitting at the kitchen table with Carrol Pate when he heard shots being fired. In sum, the defendant denied "that he assisted McGann in the killing of [Donald] Burke or directly participated in the killing or engaged in concerted action with McGann and [Geraldine] Burke to commit murder." Moreover, the defendant explained his actions of moving Donald Burke's body and of secreting evidence after the murder as ones of fear and panic.

To buttress further its theory that the defendant was a direct participant in the murder, the state called Henry Lee, chief of the Connecticut state police forensic crime laboratory. Lee testified that certain blood splatter patterns found on the back of the defendant's blue jeans indicated that he was in close proximity to the body at the time of the murder. The defense countered Lee's testimony with its own blood splatter expert's testimony that the patterns indicated that the defendant was not near the body at the time of the killing. The state also called Catherine Galvin, then Connecticut's chief medical examiner, who testified that bruises and contusions found on Donald Burke's face were consistent with his being beaten before being murdered. The defense, however, countered this testimony with testimony from its own pathologist, who testified that the injuries to Donald Burke's face were the result of gunshot wounds to the head. In addition, the defendant testified that he was intoxicated on the night of Donald Burke's murder.

The...