State v. McKenna

• Court: Connecticut Supreme Court
• Writing for the Court: Before SPEZIALE; PER CURIAM
• Citation: State v. McKenna, 188 Conn. 671, 453 A.2d 435 (Conn. 1982)
• Decision Date: 14 December 1982
• Parties: STATE of Connecticut v. John McKENNA. STATE of Connecticut v. Jack DiMARTINO.

Page 435

453 A.2d 435

188 Conn. 671

STATE of Connecticut v. John McKENNA.

STATE of Connecticut v. Jack DiMARTINO.

Supreme Court of Connecticut.

Argued Oct. 13, 1982.

Decided Dec. 14, 1982.

Kevin T. Kane, Asst. State's Atty., with whom, on brief, was Scott J. Murphy, Asst. State's Atty., for appellee (state).

Thomas D. Clifford, Hartford, with whom were Hubert J. Santos, Hartford, and, on brief, F. Mac Buckley, Hartford, for appellants (defendants).

Before SPEZIALE, C.J., and HEALEY, PARSKEY, SHEA and GRILLO, JJ.

PER CURIAM.

This case is before us by way of an interlocutory appeal from the judgment of the Superior Court which denied the defendants' supplemental motion to dismiss. The defendants claim that, notwithstanding our recent decisions in State v. Haskins, 188 Conn. 432, 450 A.2d 828 (1982), and State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979), because they have entered pleas of nolo contendere and have been sentenced in the federal court on charges arising from the same underlying transaction, the state is barred from bringing them to trial in Superior Court by the principles of double jeopardy, equal protection and due process of law. We do not agree.

Both the state and federal prosecutions were instituted as a result of the defendants' alleged scheme to defraud the state of Connecticut by the use of improper bidding practices on state contracts. On October 17, 1978, the defendant McKenna was arrested and charged with a total of thirty counts of larceny in the first degree, larceny in the second degree, larceny by extortion and conspiracy. On the same day, the defendant DiMartino was also arrested and charged with thirty-four counts of the same offenses. On November 28, 1978, the defendants were indicted in federal court by way of a joint indictment alleging thirty-five counts of mail fraud, in violation of 18 U.S.C. §§ 1341, ¹ 1342, ² and conspiracy in violation of 18 U.S.C. § 371. ³

The defendants' cases first came to trial in federal court in May of 1979. ⁴ Both defendants eventually filed pleas of nolo contendere. ⁵ On June 28, 1979, the defendant DiMartino, who had entered his plea to two of the counts of mail fraud in the indictment, was sentenced to concurrent terms of thirty days in jail on each count, given two years probation, and was ordered to pay a $2000 fine. The defendant McKenna, who had entered his plea to thirty-four counts of the indictment, was sentenced to one year in prison, suspended after four months incarceration, given eighteen months probation, and was ordered to pay a fine of $1000. ⁶

The cases pending against the defendants in the state court were placed on the trial list in July of 1980. On November 13, 1980, the state filed a substitute information against each defendant charging twenty-seven counts of larceny in the first degree in violation of General Statutes § 53a-122(a)(2), ⁷ two counts of larceny in the second degree in violation of General Statutes § 53a-123(a)(2), ⁸ and conspiracy to commit larceny in violation of General Statutes § 53a-48. ⁹ On November 19, 1980, the defendants filed a supplemental motion to dismiss. They claimed that any further trial of either defendant, after the federal charges had been disposed of, would violate the double jeopardy clause of the United States constitution applicable to the states through the fourteenth amendment; see Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969); which right is also implicit in the common law of Connecticut; see State v. Moeller, 178 Conn. 67, 77, 420 A.2d 1153 (1979). ¹⁰ They also claimed that the successive prosecutions would violate their rights to equal protection under the law and would amount to cruel and unusual punishment. ¹¹ After a hearing on the matter, the trial court denied the defendants' motion to dismiss, but granted their motion to stay the trial in order for them to take an interlocutory appeal. It is the trial court's decision denying the defendants' supplemental motion to dismiss that is now before us on appeal.

This appeal is controlled by the cases of State v. Haskins, supra, which had not been decided at the time the parties filed their briefs, and State v. Moeller, supra. In Haskins, we reaffirmed our holding in State v. Moeller, supra, that "neither federal nor state law barred sequential prosecution in our state courts for an offense for which the defendant had been acquitted or convicted in a federal court." State v. Haskins, supra, 188 Conn. at 472, 450 A.2d 828. In effect, the concept of "dual sovereignty"; see State v. Haskins, supra, 473, 450 A.2d 828, quoting Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 85, 54 L.Ed.2d 207 (1977); renders the principles of double jeopardy inapplicable to this case. ¹²

Although the issue of equal protection is not properly before us, in the interests of judicial economy we will address it. The principle of dual sovereignty is also dispositive of the defendants' claim that their rights to equal protection under the law will be violated if the state follows through with their prosecutions. The defendants in their brief argue that "[i]t is only because there are two sovereigns ... that these defendants are now threatened with the loss of their double jeopardy protection." (Emphasis added.) The defendants' argument misses the point. It is precisely because two sovereigns are involved that there is no equal protection violation. ¹³ Both the state of Connecticut and the federal government have "the power, inherent in any sovereign, independently to determine what shall be an offense against its authority and to punish such offenses, and in doing so each 'is exercising its own sovereignty, not that of the other.' " United States v. Wheeler, 435 U.S. 313, 320, 98 S.Ct. 1079, 1084, 55 L.Ed.2d 303 (1978). (Citation omitted.) ¹⁴ Therefore, the class of similarly situated individuals who are to be treated equally; see United Illuminating Co. v. New Haven, 179 Conn. 627, 636, 427 A.2d 830 (1980); is limited to persons charged with a crime in the state courts of Connecticut. As is evident from what we have said, any such person in Connecticut is equally subject to a state court prosecution regardless of whether that person has previously been convicted or acquitted in federal court. Therefore, there is no equal protection violation.

In oral argument before this court, counsel for the defendants vigorously contended that, despite the decision in Haskins, there was an alternate basis for holding that the defendants' prosecution in state court should be barred. His position was that it was fundamentally unfair to bring these defendants to trial again after serving sentences resulting from similar federal charges. Therefore, he argues that this court accept responsibility for supervising what occurs in the trial court prosecution in this case and to dismiss the prosecution. No law was cited as to this court's authority to undertake such action; their claim, however, is that the concept is rooted in the Haskins decision. The defendants also argue in their brief that we reach beyond Moeller, and therefore, Haskins, to make the "equitable analysis" we are empowered to make and "grant these defendants the protection against double jeopardy offered them by the United States Constitution and the common law, and Article First, Section 8 of the Connecticut Constitution." ¹⁵ We have already held that the doctrine of "dual sovereignty" renders the principles of double jeopardy inapplicable to this case. Moreover, as will be seen, we cannot accept their claim that the state prosecution violates the "due process clause" of article first, § 8, of the Connecticut constitution, bottomed, as it is, on their "fairness" approach.

In Haskins we recognized that the problem of sequential prosecution "does not arise in the federal courts because there the Attorney General of the United States, out of consideration of fairness to defendants and out of regard for efficient and orderly law enforcement, has foreclosed federal prosecutions once a person has been tried and acquitted or convicted in a state court for an offense that is also an offense against the United States. Petite v. United States, 361 U.S. 529, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960)." State v. Haskins, supra, 188 Conn. at 472, 450 A.2d 828. We then went on to say: "Were a similar policy to be adopted by the several state's attorneys as a matter of reciprocity as well as a matter of fairness, judicial assistance for the implementation of this policy would seem to be indicated. Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 85, 54 L.Ed.2d 207 (1977)." State v. Haskins, supra, 188 Conn. at 472-73, 450 A.2d 828. We are not aware that any such policy has yet been adopted and we are not empowered to dictate one. The court went on to note that the state's attorneys have broad discretion in deciding what crimes to charge. State v. Haskins, supra, 188 Conn. at 473-74, 450 A.2d 828, see State v. Tedesco, 175 Conn. 279, 289, 397 A.2d 1352 (1978); State v. Villafane, 171 Conn. 644, 664, 372 A.2d 82 (1976), cert. denied, 429 U.S. 1106, 97 S.Ct. 1137, 51 L.Ed.2d 558 (1977). "So long as he acts within the jurisdiction of his office it is not appropriate for a court to set policy for the performance of his prosecutorial function." State v. Haskins, supra, 188 Conn. at 474, 450 A.2d 828, citing State v. Carr, 172 Conn. 608, 610-11, 376 A.2d 74 (1977).

This does not leave the defendants unprotected from the vagaries of prosecutorial discretion. "The primary duty of a prosecutor is to seek justice, not to merely convict." State v. Jones, 180 Conn. 443, 455, 429 A.2d 936 (1980); see State v. Moynahan, 164 Conn. 560, 568, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973); see also Code of Professional Responsibility, EC 7-13, Practice Book, p. 37. A state's attorney...