State v. Van Sant

• Decision Date: 21 January 1986
• Docket Number: No. 12627,12627
• Citation: 198 Conn. 369,503 A.2d 557
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. John VAN SANT.

Page 557

503 A.2d 557

198 Conn. 369

STATE of Connecticut v. John VAN SANT.

No. 12627.

Supreme Court of Connecticut.

Argued Nov. 15, 1985. Decided Jan. 21, 1986.

Robert M. Davidson, with whom was Thomas M. Conroy, for appellant (defendant).

Frank S. Maco, Asst. State's Atty., with whom, on brief, was Donald A. Browne, State's Atty., for appellee (State).

Before ARTHUR H. HEALEY, SHEA, DANNEHY, SANTANIELLO and MENT, JJ.

ARTHUR H. HEALEY, Associate Justice.

This appeal arises out of the trial court's declaration of a mistrial, over the defendant's objection, on the ground of manifest necessity after a state's witness became ill while testifying. We find no error.

The defendant, John Van Sant, had been brought to trial on charges of larceny in the first degree in violation of General Statutes (Rev. to 1981) § 53a-122(a)(2) and burglary in the third degree in violation of GeneralStatutes § 531-103(a). On September 20, 1983, after a jury had been impaneled, the state called as a witness Bernard Halapin, a Monroe police detective. In the course of cross-examination, the court, Melville, J., excused the jury, as well as Halapin, to permit defense counsel to make a motion. The defense asked the court to "suspend [the] trial," ¹ arguing that testimony being given by Halapin was inconsistent with that given by him the previous day at a hearing on the defendant's motion to suppress, which had been denied by the court. The court itself stated that it had "a serious problem here, Mr. Maco. It would appear that we have two sets of testimony from this officer ... [t]he Court is now receiving a different impression from what the testimony has just been...." Still outside the presence of the jury, Halapin returned to the witness stand, after the court indicated that defense counsel could probe the claimed contradiction. After examination of Halapin by the defense and the state, as well as the court, the court said that its earlier decision to deny the motion to suppress remained unchanged. ² Thereafter, while Halapin was being questioned by defense counsel, he became ill and was removed from the courthouse.

His appearance at that time was described by the court at a hearing some time later as follows: "The Court certainly had the benefit of observing the demeanor of the witness at the time he keeled over on the stand, and the Court at that time was convinced that there was no malingering going on. The Court could notice the beads of sweat, the perspiration on the man's brows and the face, and the change in his color. It was obvious that there was something drastically wrong with the individual." The next day the court told the jury that "a logistical problem" had been encountered which had not been solved and for that reason it was excusing them until September 28, 1983, at which time they were to return to court.

On October 12, 1983, the trial court conducted a hearing at which James D. Garrity, a family physician who had examined Halapin, testified. This physician was called as the court's witness and was examined by the court, the state and the defense. The court made clear that the purpose of the hearing was to determine whether there was manifest necessity to declare a mistrial. Garrity had examined Halapin on September 20, 1983, and referred him to Kenneth Lisi, a cardiologist. On September 29, 1983, Lisi performed a stress test on Halapin and reported the results to Garrity. Garrity testified that, as a result, "[w]e told [Halapin] to return to his regular duty, but not to testify in court." In addition, Garrity said that the last time that Halapin had notified him that he experienced pain was the day of the stress test. It appeared that Garrity relied heavily on Lisi's expertise. ³ No definite statement was given as to when Halapin could medically be expected to be able to testify in court. The trial court felt that Garrity's evidence had not been particularly helpful, noting that Halapin had been permitted to return to work despite the concession by Garrity that he did not know the "kind of stresses he might be subjected to" at work, that he did not know if he had in fact returned to work, and that Halapin's availability as a witness was unclear. Moreover, the court also noted that it did not know what Lisi had actually said. It is apparent that, at that point, the court did not consider that proceeding with the trial, either by striking Halapin's testimony and allowing the state to proceed out of order or by allowing a "significant additional continuance," offered fair choices, especially without the consent of the defense. Observing that the state offered two notes, a letter and the testimony of Garrity, the trial court stated that "none of [this] indicated anything definitive as to when this man [Halapin] could come back or what his condition was." It then indicated that it wanted something more from the state. After a further colloquy, the matter was continued for one day and the state was then to bring in Halapin or a cardiologist or both. ⁴

On the following day, October 13, 1983, the state produced, and the court admitted, over the defense objection of hearsay, a letter from Lisi to the attention of Frank S. Maco, the assistant state's attorney trying the case. The state also informed the court that Halapin was present in the courthouse in the state's attorney's office in accordance with the court's instructions, although it had not brought "him into this courtroom atmosphere at this time unless requested by the Court...." The state maintained, in answer to a question from the court, that it still took the position that it intended to proceed if the court so ordered.

Lisi's letter indicated that Halapin had reported having chest pain during the stress test the doctor was conducting and that he had to assume Halapin's pain was real although he could not so state. Lisi maintained that the only way to determine whether it was "truly organic pain" was through coronary angiography which, in turn, was not indicated unless further episodes of chest pain occurred. He felt that it was "only right" to conclude that Halapin should not be exposed "to any maximum stress at this time." Pointing out that, in Halapin's case, "the court proceedings are equivalent to a Stage IV stress test because of the anxiety it creates," he did not feel it was "safe at this point to expose him to such a stressful procedure until more information [could] be obtained." He also reported that he could "eventually" assume his police duties "but in a graduated manner." If pain did not recur, "he [could] undergo cross examination as organic pain would certainly not be probable." He further said that the electrocardiogram mentioned by Garrity revealed "a normal congenital variation and is of no medical significance." Lisi, however, then wrote that "a previous ECG apparently did not reveal this pattern which would suggest that it is development [sic] rather than congenital," but he also noted "[w]hether this is significant or not is questionable." He concluded that the stress test was inconclusive, that the pain "has to be presumed to be real rather than imaginary" and that "marked stress, physical or emotional, at this time has to be avoided."

The court determined that Halapin was in the courthouse and that the state was ready, willing and able to proceed with Halapin as a witness if ordered to do so. The state informed the court that, as of October 13, 1983, Halapin was not back to work. The defendant declined the court's offer of a reasonable continuance to present information or evidence that would justify the court's ordering Halapin to appear and testify. In declining the offered continuance, the defendant pointed out that it was not his burden, but that of the state to go forward. The court did not, however, consider such an order appropriate "without further evidence" as it "could detrimentally affect his health." It denied the defendant's motion for judgment of acquittal and found that there was "manifest necessity" under the circumstance to declare a mistrial and it did so over the defendant's objection. It then ordered that the case be set down for a new trial and placed on the trial list.

On October 15, 1983, the defendant filed a motion to dismiss based on double jeopardy grounds. Over a year later, on October 24, 1984, the judge who had declared the mistrial on October 13, 1983, heard and denied the defendant's motion to dismiss. ⁵ This appeal followed.

On appeal, the defendant claims that the trial court erred in (1) permitting the defendant to be subjected to jeopardy for the second time after the declaration of a mistrial which was based on inadmissible hearsay evidence, and (2) ruling that manifest necessity existed for declaring the mistrial because of the alleged illness of a state's witness where the medical evidence of that witness' condition was ambiguous and where the witness was in the courthouse on the day the mistrial was declared. We find no error.

The defendant claims that the evidence properly before the trial court did not constitute manifest necessity for it to declare the mistrial and, therefore, that its action constituted an abuse of discretion. The trial court's action, it is argued, was prejudicial and violated his constitutional right not to be placed in jeopardy a second time. Those claims encompass the argument that the state did not satisfy its heavy burden and that the trial court's reliance on the inadmissible hearsay evidence represented by Lisi's letter constituted reversible error. The state, on the other hand, recognizing that a mistrial premised on the claimed unavailability of "crucial prosecution evidence" triggers the "strictest scrutiny" of such a claim, argues that the trial court did not abuse its discretion. In addition, it asserts that the trial court did not commit error in admitting into evidence, and relying upon, Lisi's letter in considering whether or not to...