Opinion
No. CR95 10 80 73 T
July 22, 2004
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.
General Statutes § 53a-54c provides in relevant part that "[a] person is guilty of murder when, acting either alone or with one or more persons, he commits or attempts to commit robbery, burglary, kidnapping, sexual assault in the first degree, aggravated sexual assault in the first degree, sexual assault in the third degree, sexual assault in the third degree with a firearm, escape in the first degree, or escape in the second degree and, in the course of and in furtherance of such crime or of flight therefrom, he, or another participant, if any, causes the death of a person other than one of the participants . . ."
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, "T.J., put your pants on and get out. I'm older than you." 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.
COLLATERAL ESTOPPEL, RES JUDICATA WAIVER
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. "[U]nder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim. A judgment is final not only as to every matter which was offered to sustain the claim, but also as to any other admissible matter which might have been offered for that purpose . . . [C]ollateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim." (Citations omitted; internal quotation marks omitted.) State v. Ellis, 197 Conn. 436, 462-63, 497 A.2d 974 (1985).
The defendant's argument misconstrues what the state is actually trying to do in this case. The state is not attempting to appeal Judge Gormley's determination that there was not sufficient probable cause for a felony murder charge based on the evidence presented before him at the 1995 probable cause hearing, nor is the state attempting to appeal Judge Gormley's denial of its motion to reopen the hearing in probable cause. The state is merely asserting that based on the testimony the defendant provided at his trial, there is now probable cause to charge him with felony murder. General Statutes § 54-46a(c) impliedly authorizes the practice of holding a new probable cause hearing when new evidence arises, for it provides in relevant part that "[a] determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense." Thus, the doctrines of res judicata and collateral estoppel do not apply here, for the plain language of the statute provides that a finding that probable cause is lacking for a particular offense does not foreclose the state from ever prosecuting the defendant for that offense.
The defendant's claim that the state waived its right to pursue a charge of felony murder against the defendant also fails based on the statutory language, as well as the fact that in its letter to Judge Ronan dated January 15, 1997, the state explicitly stated its intent to seek another probable cause hearing if additional information should arise in the case.
EQUITABLE ESTOPPEL CLAIM
The defendant also asserts that the doctrine of equitable estoppel bars the state from pursuing a charge of felony murder against the defendant. The purpose of an
equitable estoppel is to show what equity and good conscience require, under the particular circumstances of the case, irrespective of what might otherwise be the legal rights of the parties . . . No one is ever estopped from asserting what would otherwise be his right, unless to allow its assertion would enable him to do a wrong . . .
There are two essential elements to an estoppel: the party must do or say something which is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do something to him injury which he otherwise would not have done. Estoppel rests on the misleading conduct of one party to the prejudice of the other. In the absence of prejudice, estoppel does not exist.
Lombardo's Ravioli Kitchen, Inc. v. Ryan, 268 Conn. 222, 236, 842 A.2d 1089 (2004). (Internal quotation marks omitted.)
The defendant argues that the state "clearly signaled that it did not intend to challenge Judge Gormley's findings, doing so both in its letter of January 15, 1997, and its repeated decisions not to appeal them." (Defendant's Memorandum in Support of Motion to Dismiss, p. 17.) The defendant asserts that he relied upon the state's representations to his detriment when he testified at the first trial, so the state is equitably estopped from pursuing a felony murder charge at this time. This argument is untenable, however, because, despite the defendant's claim to the contrary, the state clearly announced its intention to continue to pursue a felony murder charge if new information arose, in its January 15, 1997 letter to Judge Ronan.
LAW OF THE CASE CLAIM
The defendant also asserts that the felony murder charge should be dismissed because Judge Gormley's determination that there was no probable cause, his finding that the state violated the 60-day rule, and his decision that the state had to seek another probable cause hearing by January 15, 1997, have become the "law of the case" and cannot be reevaluated now. "The law of the case doctrine provides that when a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Internal quotation marks omitted.) State v. Ross, 269 Conn. 213, 262, 849 A.2d 648 (2004). The law of the case doctrine is not applicable under the particular circumstances at issue here. Judge Gormley's determination that there was no probable cause for a felony murder charge is not relevant to the current proceedings, because the state is not challenging his finding, but instead is trying to establish that there is now probable cause based on new information that was not available at the earlier hearing. Judge Gormley's finding that the state had violated the 60-day rule and his imposition of the January 15, 1997 deadline for seeking a new probable cause hearing also have no relevance at this point. Judge Gormley's determination that the state had exceeded the 60-day rule was based upon the fact that the state was attempting to reopen the original probable cause hearing approximately eighteen months after his determination that there was no probable cause for the felony murder charge. Thus, that decision is not relevant to the state's current attempt to hold a new probable cause hearing based on an information that was filed on April 8, 2004. Furthermore, Judge Gormley ruled that the state had to seek a new probable cause hearing by January 15, 1997, because the state's attempt to establish probable cause for felony murder was based on the original information and Judge Gormley already felt that the state had waited too long to present the evidence. This ruling did not become the law of the case, foreclosing any possible subsequent opportunity to establish probable cause based on new information.
STATUTORY CLAIMS
The defendant also argues that the felony murder charge in the substitute information from April 8, 2004 must be dismissed based on Article first, § 8, of the Constitution of Connecticut, and General Statutes § 54-46a. Article first, § 8 of the Constitution of Connecticut, as amended by article twenty-nine of the amendments, provides in relevant part that "[n]o person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . ." General Statutes § 54-46a prescribes the necessary procedures, providing in relevant part that "(b) Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court . . . (c) If, from the evidence presented pursuant to subsection (b) of this section, it appears to the court that there is probable cause to believe that the accused person has committed the offense charged, the court shall so find and approve the continuance of the accused person's prosecution for that offense. A determination by the court that there is not probable cause to require the accused person to be put to trial for the offense charged shall not operate to prevent a subsequent prosecution of such accused person for the same offense."
The defendant notes that "it is well-settled in Connecticut that statutory provisions must be read harmoniously with each other." (Memorandum in Support of Motion to Dismiss, p. 19, citing State v. Ledbetter, 240 Conn. 317, 334, 692 A.2d 713 (1997).) Thus, the defendant argues that in order for the sixty-day time limit afforded in § 54-46a(b) to have any meaning, subsection (c) must be read to require that after failing to establish probable cause for a particular charge, any additional hearing in probable cause must occur within 60 days of the first information charging the defendant with the offense. There is simply no support for this proposition in the law. The legislature prescribes that there is "no limitation of time within which a person may be prosecuted for a capital felony, a class A felony or a violation of section 53a-54d or 53a-169." General Statutes § 54-193. A person convicted of a capital felony can potentially face a sentence of death or life imprisonment, and a person convicted of a class A felony of murder faces a potential sentence of life imprisonment. See General Statutes § 53a-35a. Thus, these are the sorts of offenses for which a probable cause hearing is mandated. It defies logic to think that the legislature considered these crimes to be of such gravity that they would not institute a time limit on prosecution for them, but that they intended, nonetheless, to foreclose the state from filing a substitute information and having another probable cause hearing if the state developed new evidence more than sixty days after the filing of the first information charging the defendant with the crime.
Furthermore, in State v. Moody, 214 Conn. 616, 573 A.2d 716 (1990), the Supreme Court entertained a defendant's argument that the trial court's dismissal of the murder charge without prejudice at the second probable cause hearing was in error. In that case, the first probable cause hearing took place on May 5-7, 1987, and the court determined that there was not probable cause to sustain a murder charge against the defendant. Id., 617-18. A second hearing was held before a different judge on May 14, 1987, and that judge also determined that the state had not established that there was probable cause for a murder charge. Id., 618. As per the state's request, the judge dismissed the murder charge without prejudice, stating that "[t]he Court will enter a dismissal without prejudice to the State to reinstitute a prosecution as I think is provided for by the operative statute [§] 54-46a." Id., 631. A third probable cause hearing was held on September 3, 1987, and that time, the court determined that the state had established probable cause for the murder charge. Id., 619. The Supreme Court determined that the trial court did not err in dismissing the murder charge without prejudice, for the state "was simply requesting that the court dismiss the murder charge without prejudice so that it would be free to renew the prosecution at a later time as provided for by § 54-46a." Id., 632. Clearly, the Supreme Court would not have ruled this way if it interpreted subsection (b) of that statute to mean that the state is foreclosed from seeking another hearing in probable cause if more than 60 days has passed since the filing of the information that first charged the defendant with the crime.
The defendant also argues that based on General Statutes § 54-56b, the state is required to hold all subsequent probable cause hearings prior to the defendant's trial. Section 54-56b provides that "[a] nolle prosequi may not be entered as to any count in a complaint or information if the accused objects to the nolle prosequi and demands either a trial or dismissal, except with respect to prosecutions in which a nolle prosequi is entered upon a representation to the court by the prosecuting official that a material witness has died, disappeared or become disabled or that material evidence has disappeared or has been destroyed and that a further investigation is therefore necessary." The defendant in State v. Moody, supra, 214 Conn. 631, attempted to use this statute as authority for his contention that the trial court's dismissal of the murder charge at the second probable cause hearing should have been with prejudice, and the Supreme Court rejected the argument, stating that "§ 54-56b concerns the state's right to seek a nolle prosequi when the defendant `demands' a dismissal." Id., 632. In the present case, there is no indication that the defendant previously "demanded" a dismissal of the felony murder change; rather the state simply tried to establish probable cause for the charge and the court determined that it had failed to do so. Thus, § 54-56b is wholly inapplicable to the present case. Further, even if the statute did apply, by its plain language, it does not support the defendant's contention that the state necessarily has to seek any subsequent probable cause hearing before the defendant's first trial.
DUE PROCESS CLAIMS
The defendant also asserts that in order to comport with the due process clauses of the state and federal constitutions, the judge who initially finds that the state has not established probable cause must preside over all subsequent probable cause hearings to prevent the state from judge shopping, and that the state must present substantial new evidence to establish probable cause for the felony murder charge. The defendant claims that the Supreme Court "recognized" these claims in State v. Moody, supra, 214 Conn. 616. Contrary to the defendant's implication, however, the Supreme Court did not address these claims on the merits in that case, because the judge who found probable cause at the third hearing was the same judge who presided over the first probable cause hearing. In addition, the state had presented "significant new evidence" at the third probable cause hearing, in the form of testimony from a witness who testified that he saw the defendant arguing with the victim on the day of the murder. The court thus determined that "even if [the court] agreed with [the defendant's] assertions, the defendant's probable cause hearing would still have been free from error." Id., 630. Thus, it is clear that the court did not actually adopt the defendant's position that in order to establish probable cause after a judge has found such cause to be lacking, there must be substantial new evidence and that evidence must be put before the same judge who initially determined that the state had not established probable cause.
The defendant supports his argument that the same judge who presides over the initial probable cause hearing must preside over all subsequent hearings, in order to prevent forum shopping, with cases from other jurisdictions that are not even remotely comparable to this case. The defendant cites People v. Walls, 117 Mich. App. 691, 324 N.W.2d 136 (1982), in which subsequent to one judge's adverse evidentiary ruling, the state dismissed the charge and had the defendant arrested again and arraigned on a more serious charge stemming from the same incident as the original charge. Id., 137. A different judge ruled in the state's favor on the same evidentiary issue, a mere two months after the first judge's ruling. Id. The Court of Appeals determined that this was a blatant case of judge shopping, and found the second prosecution violated due process. Id., 138-39. In People v. Turmon, 128 Mich. App. 417, 340 N.W.2d 110 (1983), another case relied upon by the defendant, the appeals court also found that the prosecution had engaged in judge shopping in violation of due process of law when, rather than appealing one judge's ruling that the search was illegal, the prosecutor refiled the charges to enable the state to argue the legality of the search before another judge. Id., 112. Neither of these cases is analogous to the present case. After Judge Gormley's adverse ruling on probable cause, the state never attempted to raise the probable cause issue before any other judge prior to the defendant's trial. Based on the defendant's trial testimony, the state feels it has enough evidence now to establish probable cause for a felony murder charge. There is no indication that the state is attempting to judge shop and the defendant's due process rights will not be violated by having a different judge evaluate the probable cause issue.
The argument that the state must provide substantial new evidence at a subsequent probable cause hearing is not very persuasive in light of the standard for probable cause. "The quantum of evidence necessary to establish probable cause at a preliminary hearing is less than the quantum necessary to establish proof beyond a reasonable doubt at trial . . . In making its finding, the court [has] to determine whether the government's evidence would warrant a person of reasonable caution to believe that the accused [had] committed the crime." (Citations omitted; internal quotation marks omitted.) State v. Patterson, 213 Conn. 708, 720, 570 A.2d 174 (1990). "The quantum of evidence necessary to establish probable cause exceeds mere suspicion, but is substantially less than that required for conviction. Our cases have made clear [t]hat there is often a fine line between mere suspicion and probable cause, and [t]hat line necessarily must be drawn by an act of judgment formed in light of the particular situation and with account taken of all the circumstances." (Internal quotation marks omitted.) State v. Burke, 51 Conn. App. 798, 805, 725 A.2d 370 (1999), aff'd, 254 Conn. 202, 757 A.2d 524 (2000). Thus, it is illogical to require that the new evidence must be substantial, since very little additional evidence might be needed to transform the cumulative effect of the evidence from creating suspicion to establishing probable cause. In this particular case, Judge Gormley noted that he had not found probable cause for either capital felony or felony murder at the initial probable cause hearing because there was no evidence that the defendant sexually assaulted the victim, and based on the defendant's statement to the police, although Timothy Solek had intercourse with the victim, he did not do so until after she had been strangled and was lying on the floor and had stopped moving. Thus, based on that assessment, all that would be necessary to establish probable cause for felony murder would be some indication that the defendant had sexually assaulted the victim and had choked her in the course of or in furtherance of that assault or some indication that the physical assault that caused her death occurred while Timothy Solek was in the process of sexually assaulting her.
The defendant also argues that allowing the state to hold another hearing to try to establish probable cause for a felony murder charge violates due process because it amounts to harassment of the defendant and is fundamentally unfair to the defendant. Under the circumstances involved in this case, there can be no reasonable claim of harassment. The state held only one probable cause hearing in this case, followed by a motion to reopen the hearing approximately eighteen months later for the purpose of introducing new evidence. After Judge Gormley informed the state that the proper thing for it to do would be to move to apply for a new probable cause hearing, but that he personally would still find that there was no probable cause for a felony murder charge, the state declined to pursue a new probable cause hearing, while clearly stating its intent to seek a new probable cause hearing in the future if additional information arose. Additional information arose when the defendant testified at the first trial in March 1999.
In his supplemental memorandum of law in support of the motion to dismiss, the defendant argues that the state failed to act with reasonable promptness because it had the new evidence in 1999, but did not file this information charging the defendant with felony murder until 2004. This argument is without merit because the state could not seek to prosecute the defendant for felony murder after he had already been convicted of murder arising out of the same incident because "[a]n indictment charging an accused with intentional and felony murder of a particular victim charges a single offense, committed conjunctively in two different ways." (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 818-19, 717 A.2d 1140 (1998). Thus, a defendant cannot be convicted of both murder and felony murder with respect to the same homicide. Id., 819. The state could not have moved to establish probable cause for the felony murder charge while the defendant's conviction for murder was in effect. The Supreme Court reversed the defendant's murder conviction on March 4, 2003, so that marks the earliest date on which the state could have sought to utilize the testimony that the defendant provided at the trial for the purpose of establishing probable cause for felony murder.
The state filed a substitute information on May 13, 2003, charging the defendant with felony murder, among other charges. The defendant waived the 60-day rule for having a probable cause hearing, so no hearing was held before August 26, 2003, at which time the state filed a substitute information that did not contain a felony murder charge. This information was in effect until April 8, 2004, when the state filed another substitute information, reinstating the felony murder charge. Although a significant period of time passed between the filing of the second information and the third information, it is not fundamentally unfair to the defendant to allow the state to hold a probable cause hearing on the felony murder charge at this time, since he had waived the 60-day requirement in May of last year. Furthermore, since this will only be the second actual probable cause hearing to which the defendant has been subjected since 1995, it can hardly amount to harassment.
It is settled law "that a defendant's testimony at a former trial is admissible in evidence against him in later proceedings," and therefore, the use of the defendant's testimony as additional evidence to establish probable cause for felony murder does not violate the defendant's due process rights. (Internal quotation marks omitted.) State v. Castonguay, 218 Conn. 486, 491, 590 A.2d 901 (1991). If the defendant was going to be subject to greater penalties upon retrial with the addition of the felony murder charge, he might have a valid due process claim. The United States Supreme Court has determined that "the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal," but is offended "by those that pose a realistic likelihood of `vindictiveness.' " Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098 40 L.Ed.2d 628 (1974). The Supreme Court found such a likelihood of vindictiveness under the factual situation involved in that case, which revolved around a statute that reserved exclusive jurisdiction for misdemeanors to the district court, but allowed anyone convicted in the district court to receive a trial de novo in superior court. Id., 22. The defendant was convicted of misdemeanor assault with a deadly weapon in district court, and he subsequently filed a notice of appeal, indicating his intent to exercise his right to a trial de novo. Id. Before the defendant's trial de novo, the prosecutor got a felony indictment against the defendant for assault with a deadly weapon with intent to kill and inflict serious bodily injury, based on the same incident giving rise to the misdemeanor charge. Id., 23. The defendant pleaded guilty, but later challenged the state's actions in a habeas corpus proceeding. Id., 23. The Supreme Court stated that "[a] person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration." Id., 28. As a result the Supreme Court found that the state had violated the defendant's due process rights by "[responding] to [his] invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo." Id., 28-29.
This case is unlike the situation in Blackledge v. Perry, for the state is not responding to the defendant's exercise of his right to appeal, by bringing a more serious charge against him. Instead the state is adding a charge that is equivalent in degree to the charge of murder that the defendant already faces. Even if the defendant is prosecuted on a felony murder charge in the retrial, he will not be subject to any greater penalties than he was in the first trial. Because murder and felony murder are both classified as Class A felonies, a conviction for either one subjects the defendant to imprisonment for twenty-five years to life. General Statutes § 53a-35a. As the defendant cannot be convicted of both felony murder and murder for the same homicide, adding a charge of felony murder at the retrial will not subject him to harsher penalties than he is already facing for the murder charge. See State v. Lewis, supra, 245 Conn. 818-19.
General Statutes § 53a-45(a) states that "[m]urder is punishable as a class A felony in accordance with subdivision (2) of section 53a-35a unless it is a capital felony or murder under section 53a-54d." It should be noted that the statutory provision applicable to felony murder is § 53a-54c, thus bringing it within the group of crimes punishable as class A felonies based on § 53a-45(a).
In addition, unlike in Blackledge v. Perry, there is no realistic likelihood of vindictiveness in this case, for the state had attempted to prosecute the defendant for felony murder since he was arrested in 1995, and clearly is not instituting the felony murder charge now to punish the defendant for exercising his right to appeal. The state unsuccessfully attempted to establish probable cause for the felony homicide charge back in 1995. The state then attempted to reopen the probable cause hearing in 1997 to no avail, but in a contemporaneous letter to Judge Ronan expressed its intent to pursue the felony murder charge if additional evidence should arise. Thus, it is clear that the state is not seeking to prosecute the defendant on a felony murder charge merely to punish him for exercising his right to appeal.
INHERENT CASE MANAGEMENT AUTHORITY
The defendant also argues in its supplemental memorandum in support of its motion that the court should prohibit the state from holding another probable cause hearing based on its inherent case management power. "The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases." Krevis v. Bridgeport, 262 Conn. 813, 819, 835 A.2d 123 (2003). The defendant contends that by permitting the state to maintain another probable cause action, the court will be permitting the state to usurp its case management authority. The defendant misconstrues the parameters of the court's case management authority. As evidenced in Krevis, the case management authority is in place so that courts can avoid strict adherence to the Practice Book when such adherence will "result in pointless delay." Id., 824. For example, in that case, the Supreme Court found that the trial court had not abused its authority when it granted what was essentially an oral motion for summary judgment on the day that jury selection was supposed to begin despite the moving party's failure to put the motion in writing, along with supporting documents, as required by the Practice Book. Id., 816-18, 824. The court found that the trial court's action was a proper use of its case management authority, for "all of the concerned parties desired an expeditious ruling" on the matter, and deciding the issue then, "rather than awaiting the inevitable motion for a directed verdict after the presentation of evidence for several days, preserved scarce judicial resources without infringing on the rights of either party." Id., 824.
The circumstances at issue here are not conducive to the court's exercise of its case management authority. The state's rights would be infringed upon if the court granted the defendant's motion because the defendant has not successfully demonstrated to the court that the state is legally barred from holding a probable cause hearing.
Accordingly, for all the foregoing reasons, the defendant's motion to dismiss the felony murder count from the state's April 8, 2004 substitute information and to prohibit the state from holding another probable cause hearing is denied.
The Court By
DAMIANI, J.