State v. Smith, No. CR95 10 80 73 T (CT 7/22/2004)
| Decision Date | 22 July 2004 |
| Docket Number | No. CR95 10 80 73 T,CR95 10 80 73 T |
| Court | Connecticut Supreme Court |
| Parties | State of Connecticut v. Scott Smith. |
The state filed an information against the defendant, Scott Smith, on May 30, 1995, charging him with first degree commission of sexual assault, capital felony during the course of a kidnapping, murder, felony murder during the course of a sexual assault, first degree sexual assault, second degree sexual assault, and first degree unlawful restraint. The court, Gormley, J., presided over a probable cause hearing on July 18, 1995. The defendant's statement to the police was presented as evidence at the probable cause hearing, in which he denied that he had sexual intercourse with the victim on the night she died, but admitted that he had choked her. The defendant also stated that Timothy Solek, the other defendant in the case, had subsequently had intercourse with the victim. Based on this statement, Judge Gormley determined that there was no probable cause to sustain the felony murder charge, for the state had not presented evidence to establish that the victim's death occurred either in the course of and in furtherance of a sexual assault or a kidnapping or as a result of the defendant's flight as required by General Statutes §53a-54c.1
The state filed a motion to reopen the probable cause hearing on December 23, 1996, on the ground that it had acquired additional evidence establishing probable cause for a felony murder charge against the defendant. At a hearing on the motion held before Judge Gormley on January 13, 1997, the state presented the statement of a witness, Robert Burns, that was taken on December 15, 1996. In his statement, Burns reported that he resided in the apartment next to the victim on the night she was killed and that he heard people enter the victim's apartment on the evening in question. At some point later in the evening, Burns recalled hearing the victim state, As the state conceded that the victim's reference to "T.J." was to the other defendant in the case, Timothy Solek, the court determined that it provided no evidence that the defendant had sexually assaulted the victim.
The state also presented a DNA report which showed that the defendant had blood matching the victim's blood type on his underwear. In addition, while the defendant also had blood stains on his pants, the stains on the underwear were not in the same locations as the stains on the pants, from which the state surmised that the defendant had his pants off while he was in the victim's apartment. The court determined that this information alone does not lead to the conclusion that the defendant sexually assaulted the victim. The court also rejected the state's contention that it need not demonstrate that the defendant had any sexual contact with the victim as long as the state shows the defendant knew that Solek was going to rape the victim and the defendant assisted Solek in doing so. The court noted that based on the defendant's own statement, Solek did not sexually assault the victim until after the defendant had choked her and she was on the ground and unconscious or dead. Thus, the court denied the motion to reopen the July 1995 probable cause hearing and stated that if the state filed an application to hold a new probable cause hearing, and he presided over the hearing, he would still not find that there was probable cause to charge the defendant with felony murder.
The state subsequently decided not to pursue a new probable cause hearing, in light of Judge Gormley's determination that their additional evidence still did not establish probable cause for charging the defendant with felony murder. (Letter to Judge Ronan from Robert Satti dated January 15, 1997.) Nevertheless, the state maintained that "if further evidence becomes available . . . in the future . . . [the state would] seek an additional hearing in probable cause for Mr. Smith."
On February 10, 1999, the state filed a substitute information against the defendant, charging him with murder, first degree sexual assault, second degree sexual assault, and third degree sexual assault. The defendant stood trial on these charges in March 1999. During the course of the trial, he testified on his own behalf. The jury convicted him of murder, first degree sexual assault, and third degree sexual assault, and the court sentenced him to sixty years in prison. The Supreme Court reversed the judgment of the trial court on appeal, finding that the court erred in not instructing the jury on the lesser included offense of first degree manslaughter. State v. Smith, 262 Conn. 453, 476, 815 A.2d 1216 (2003).
Subsequent to the Supreme Court's reversal of the case, on May 13, 2003, the state filed a substitute information against the defendant in which they charged him with capital felony, murder, felony murder, first degree sexual assault, second degree sexual assault, and first degree unlawful restraint. On August 26, 2003, the state filed another substitute information, this time charging the defendant with murder, first degree sexual assault, and third degree sexual assault. Finally, on April 8, 2004, the state filed the substitute information that is at issue in the present motion. This information charged the defendant with murder, felony murder, first degree sexual assault, and second degree sexual assault.
The defendant filed a motion to dismiss the felony murder count from the April 8, 2004 information and to prohibit the state from holding another probable cause hearing in this case. The defendant contends that the doctrines of waiver, res judicata, collateral estoppel, and law of the case all prevent the state from holding another probable cause hearing. The defendant also argues that Section 8 of the first article of the Connecticut Constitution, the due process clause of the state and federal Constitutions, and General Statutes §§54-46a and 54-56b dictate that the felony murder charge against the defendant must be dismissed. The defendant filed a supplemental memorandum of law in support of his motion to dismiss on July 1, 2004.
The defendant first argues that the state has waived its right to appeal Judge Gormley's ruling that there was no probable cause to charge the defendant with felony murder; his ruling that the state exceeded the 60-day rule; and his ruling that the state had to seek a new probable cause hearing no later than January 15, 1997. In conjunction with the waiver argument, the defendant argues that the state is now barred by the doctrines of res judicata and collateral estoppel from trying to establish probable cause for a felony murder charge. The defendant's contentions misapprehend what the state is attempting to do in this case.
On July 21, 1995, Judge Gormley determined that there was no probable cause to charge the defendant with felony murder. He explained that although there was probable cause for charging the defendant with murder, there was not sufficient evidence that the defendant participated in either a sexual assault or a kidnapping, at least one of which was needed to establish probable cause for felony murder. The state moved to reopen the probable cause hearing on felony murder, and a hearing was held on the matter on January 13, 1997. The next day, Judge Gormley ruled that the new evidence offered by the state was not sufficient to overcome his decision from the July 1995 hearing that the state had not established probable cause for a felony murder charge, so he denied the state's motion to reopen. The court also determined that although General Statutes §54-46a(c) does allow the state to seek a new probable cause hearing, subsection (b) requires that a probable cause hearing be held within 60 days of the filing of the information, and the state's motion to reopen the hearing far exceeded that deadline. Judge Gormley also stated that although the state had the right to seek an entirely new hearing in probable cause, based on the state's offer of proof in the motion to reopen hearing, the court would still find that there was no probable cause for a felony murder charge. In his decision, Judge Gormley noted that he felt that any new probable cause hearing should be before the same judge who determined that there was no probable cause initially, in order to prevent judge shopping. Despite having said this, Judge Gormley ordered the state to present its application for a new probable cause hearing to Judge Ronan the next day, and said that it would be up to Judge Ronan to decide whether the hearing should be held and which judge should be assigned.
The defendant now claims that because the state did not challenge Judge Gormley's rulings and did not apply to Judge Ronan for a new probable cause hearing by January 15, 1997, Judge Gormley's determination that there is no probable cause for a charge of felony murder acts as a res judicata/collateral estoppel bar to the state's current application for a new hearing in probable cause and that the state waived its right to hold another such hearing. ...
To continue reading
Request your trial