STATE v. AILLON, 189 Conn. 416 (1983)

456 A.2d 279

(11152) (11153) (11154)Supreme Court of Connecticut

SPEZIALE, C.J., PETERS, PARSKEY, SHEA and SPONZO, Js.

The defendant was tried and found guilty of three murders in 1973. After a second trial in 1978, which he ultimately obtained by way of a petition for A new trial, ended in a mistrial, the trial court denied his motion for judgment of acquittal, which had been based in part on his claim that double jeopardy barred a third trial. That denial was affirmed by this court on appeal in 1980. More than one year later, the defendant moved for dismissal of the charges and sought an evidentiary hearing, again raising a double jeopardy claim. The trial court denied the motion and the defendant appealed to this court. Because the rejection of the defendant’s original double jeopardy claim was res judicata as to the claim raised here, the facts relied upon and the legal arguments presented being only slightly different from those originally presented, held that the trial court did not err in denying the motion.

Argued November 3, 1982

Decision released March 1, 1983

Page 417

Motion by the defendant for an order of dismissal with respect to three indictments charging him with the crime of murder, brought to the Superior Court in the judicial district of New Haven and presented to the court, Fracasse, J.; order denying the motion in each case, from which the defendant appealed to this court. No error.

The appellant filed a motion for reargument which was denied.

Howard A. Jacobs, with whom was Karen Tross, for the appellant (defendant in each case).

Julia D. Dewey, assistant state’s attorney, With whom, on the brief, were Arnold Markle, state’s attorney, and Linda K. Lager, assistant state’s attorney, for the appellee (state).

PETERS, J.

This appeal concerns the applicability of principles of waiver and res judicata to a defendant’s claim of double jeopardy. The defendant, Guillermo Aillon, is charged by separate indictments with three murders alleged to have occurred in August of 1972. His two previous trials on those charges failed to result in a final judgment of either conviction or acquittal.

The defendant by motion in the trial court sought dismissal of the charges against him, claiming that a third trial would subject him to double jeopardy in violation of the fifth amendment to the United States constitution. The trial court’s refusal to permit an evidentiary hearing on this claim and its consequent denial of the defendant’s motion to dismiss are the basis for the defendant’s present appeal to this court.

In the trial court, the defendant’s motion to dismiss was denied because the court concluded that the defendant had waived his right to the defense

Page 418

of double jeopardy by failing to raise this claim in advance of his second trial. Alternatively, on this appeal, the state urges that the `action of the trial court may also be sustained because a previous adjudication of the double jeopardy issue, after the defendant’s second trial, precludes reconsideration of that claim now.

Because it is evident that the lengthy history of State v. Aillon forms the core of the arguments advanced by both the defendant and the state, a review of that history is necessary. In 1973, after the defendant’s first trial, a jury found him guilty of the three counts of murder with which he is presently charged. Thereafter, upon discovering that the trial judge had engaged in an ex parte conversation with a juror during the course of deliberations, the defendant successfully petitioned for a new trial.[1]

On the state’s appeal, this court set aside the order for a new trial. Aillon v. State, 168 Conn. 541,

Page 419

363 A.2d 49 (1975)[2] We agreed with the lower court, J. Shea, J., that the ex parte conversation had intruded upon the defendant’s constitutional right to be present at every stage of the trial; id., 546; and to be assisted by counsel; id.; and we also agreed that it was therefore the state’s burden to demonstrate that the constitutional error was harmless beyond a reasonable doubt. Id., 548. We found error, however, in the lower court’s exclusion from the evidence of juror testimony as to conditions which might have mitigated the prejudicial effect of the impropriety. Id., 553-54. We therefore remanded for further proceedings.

A second hearing on the defendant’s petition for a new trial ensued, but this time the lower court, O’Sullivan, J., denied it. Upon a new appeal by the defendant, we set the judgment aside and directed that the petition for new trial be granted. Aillon v. State, 173 Conn. 334, 340, 377 A.2d 1087 (1977). Since the record contained no credible evidence as to the contents of the ex parte conversation; id., 339; we concluded that the lower court was in error in determining that the conversation was harmless beyond a reasonable doubt. Id., 340.

Page 420

The defendant’s Second trial commenced on October 26, 1978. At no time prior to that date did he raise a claim that his retrial was barred by the prohibition against double jeopardy. The second trial ended with a declaration of mistrial after the jury failed to return a verdict. Thereafter the defendant moved for a judgment of acquittal. The motion for acquittal raised three claims: double jeopardy, insufficiency of the evidence, and acquittal required in the exercise of sound judicial discretion. The defendant’s double jeopardy claim was based on the legal theory that, the first trial having ended in the functional equivalent of a mistrial, and the second trial having ended in a mistrial per se, further prosecution should be prohibited. In characterizing the first trial as the functional equivalent of a mistrial, the defendant alleged that the guilty verdict in his first trial “resulted from the judge requiring the jury to deliberate for an unreasonable length of time.”[3] The trial court, Quinn, J., considered the defendant’s claims on the merits and denied the motion for acquittal.

Page 421

The defendant appealed.[4] In his brief, he persisted in characterizing the first trial as the functional equivalent of a mistrial and, in support of that theory, referred to the trial judge’s improper conversation with the juror, and to “the first trial judge’s improper coercion of the jury to break its declared deadlock.”

In holding that a third trial was not barred by double jeopardy, we accepted, arguendo, the defendant’s characterization of the first trial as a mistrial. State v. Aillon, 182 Conn. 124, 135, 438 A.2d 30 (1980). Notwithstanding such a view, we were not persuaded that the fact of two mistrials posed a bar to reprosecution where, as in the present case, “the defendant has exercised his right to control the course of the proceedings.” Id., 137-38.

More than a year after our rejection of the defendant’s first double jeopardy claim, the defendant made the motion to dismiss which is the subject of this appeal. In that motion, the defendant renewed his argument that a third trial was barred by double jeopardy. Again the claim was based on the ex parte conversation in the first trial. The defendant argued that judicial overreaching in that

Page 422

trial had foreclosed the defendant’s right to have his guilt or innocence determined by the particular tribunal summoned to sit in judgment on him. To establish the factual basis for the claim of judicial overreaching, the defendant asserted that the two previous factual findings concerning the ex parte conversation were res judicata with respect to the motion to dismiss. In addition, he moved for a third evidentiary hearing[5] to establish the bad faith on the part of the first trial judge which allegedly motivated the ex parte conversation.

In denying the motion, the trial court relied on State v. Jones, 166 Conn. 620, 630, 353 A.2d 764 (1974), for the proposition that the proper time for bringing the double jeopardy motion, based entirely on events which transpired during the first trial, was before the commencement of the second trial, and that, in failing to move in a timely manner, the defendant had waived the defense. The trial court noted that the motion’s factual basis was known to the defendant before the second trial, and that the motion’s legal basis had previously been articulated in the courts.

The defendant has raised three issues on appeal. First, relying on language in State v. Darwin, 161 Conn. 413, 419, 288 A.2d 422 (1971), that a new trial “is `new’ in every sense”; id.; he argues that the declaration of a mistrial at the end of the second trial rendered that second trial a nullity in

Page 423

every respect. Thus, argues the defendant, he should be entitled to raise the present claim regardless of his failure to do so before the second trial. Second, he claims that the alleged waiver was not voluntary, knowing and intelligent and therefore was constitutionally invalid.[6] Third, he challenges the trial court’s conclusion that the legal theory underlying his motion to dismiss was articulated before the second trial commenced.

We do not reach the merits of the defendant’s claim that he has not waived his claim of double jeopardy. Even if we were to resolve the waiver issue in the defendant’s favor, and thereby hold that he remained entitled to raise the issue of judicial overreaching after his second trial, we would nonetheless be obliged to hold that the rejection of his previous claim of double jeopardy, affirmed by us in State v. Aillon, 182 Conn. 124, 438 A.2d 30 (1980), is res judicata with respect to the claim he now wishes to advance. We therefore affirm the order of the trial court denying the defendant’s motion for dismissal of the charges against him and for an evidentiary hearing.

Under 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. Cromwell v. County of Sac, 94 U.S. 351,

Page 424

352-53, 24 L.Ed. 195 (1876); 1 Restatement (Second), Judgments 19, 25; James Hazard, Civil Procedure (2d Ed.) 11.3.[7]

In principle, res judicata applies to criminal as well as civil proceedings. Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180 (1948); Steele v. United States No. 2, 267 U.S. 505, 507, 45 S.Ct. 417, 69 L.Ed. 761 (1924); United States v. Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L.Ed. 161 (1916); State v. Camera, 132 Conn. 247, 249, 43 A.2d 664 (1945); see also Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); State v. Wilson, 180 Conn. 481, 486, 429 A.2d 931 (1980) (applying the related doctrine of collateral estoppel[8] to criminal cases). Res judicata may operate to preclude relitigation by a criminal defendant as well as by the state. Steele v. United States No. 2, supra; see also United States v. Colacurcio, 514 F.2d 1, 6 (9th Cir. 1975); State v. Wilson, supra; People v. Scott, 93 Misc.2d 1074, 1082-83, 405 N.Y.S.2d 169 (1978) (applying the doctrine of collateral estoppel to preclude a defendant from relitigating in a second prosecution an issue determined adversely to him in a prior prosecution). Nonetheless, in applying the doctrine

Page 425

of res judicata to a defendant’s constitutional claim, special policy considerations must be taken into account. The interest in achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights. Sanders v. United States, 373 U.S. 1, 8, 83 S.Ct. 1068, 10 L.Ed.2d 148
(1963); Clark v. Nickeson, 321 F. Sup. 415, 420
(D.Conn. 1971). Whether two claims in a criminal case are the same for the purposes of res judicata should therefore be considered “in a practical frame and viewed with an eye to all the circumstances of the proceedings.” Sealfon v. United States, Supra, 579; United States v. Kramer, 289 F.2d 909, 915 (2d Cir. 1961); cf. Vestal, “Issue Preclusion and Criminal Prosecutions,” 65 Iowa L. Rev. 281 (1980).

In the present case, the predicate for application of the doctrine of res judicata is established by the valid final judgment denying, on the merits, the defendant’s previous claim of double jeopardy. State v. Aillon, 182 Conn. 124, 126, 138, 438 A.2d 30 (1980). A judgment may be final in a res judicata sense as to a part of an action although litigation continues as to the rest. 1 Restatement (Second), Judgments 13, comment e. We note that, for the purposes of appeal, a denial of a claim of double jeopardy is a final judgment. State v. Seravalli, 189 Conn. 201, 206n, 455 A.2d 852 (1983); State v. Moeller, 178 Conn. 67, 69, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S.Ct. 423, 62 L.Ed.2d 320 (1979). Although the standards for finality regarding appellate review and res judicata are not necessarily congruent; 1 Restatement (Second), Judgments 13, comment b; there was nothing tentative or conditional about the denial of the

Page 426

defendant’s first double jeopardy claim, and the claim was given careful consideration by the lower court, whose judgment was then affirmed on appeal. See United States v. Ajimura, 598 F.2d 510, 513
(9th Cir. 1979) (precluding, via res judicata, a second pretrial claim of double jeopardy).

What remains to be determined is whether the present claim of double jeopardy is sufficiently similar to the previous claim to warrant our giving preclusive effect to the prior judgment. Bearing in mind the special consideration to which a defendant’s constitutional claims are entitled, we conclude nonetheless, on the present record, that the defendant may not relitigate the question of double jeopardy.

The defendant’s previous double jeopardy claim had as a factual basis the first trial judge’s improper contact with a juror. From that basis, the defendant argued unsuccessfully that the first trial was the functional equivalent of a mistrial, and that two successive mistrials barred reprosecution. The present claim relies on precisely the same facts, sought to be supplemented with evidence purporting to show the judge’s bad faith, to advance a legal argument only slightly different; i.e., that the judge’s misconduct foreclosed the defendant’s right to be judged by the first tribunal convened to judge him. This slight shift in evidentiary basis and substantive theory of law does not constitute a new claim. 1 Restatement (Second), Judgments 25, comments b, d;[9] accord Steele v.

Page 427

United States No. 2, 267 U.S. 505, 507, 45 S.Ct. 417, 69 L.Ed. 761 (1924)[10] That identical grounds for relief may be supported by different factual allegations or different legal arguments or couched in different language renders those grounds no less identical. Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963).[11]

No valid reason has been alleged as to why the defendant could not have brought the present claim when the prior one was brought. Even if we confine ourselves to cases of the United States Supreme

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Court, we agree with the trial court that the principle that judicial overreaching may bar reprosecution had repeatedly been enunciated before the defendant made his motion for acquittal in 1979. E.g., Lee v. United States, 432 U.S. 23, 33-34, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 485 n. 12, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971); United States v. Tateo, 377 U.S. 463, 468 n. 3, 84 S.Ct. 1587, 12 L.Ed.2d 448
(1964); Downum v. United States, 372 U.S. 734, 736, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963); Gori v. United States, 367 U.S. 364, 369, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961). The defendant conceded at oral argument that there was no procedural bar to the conjunction of the present motion to dismiss with the 1979 motion for acquittal.[12] Two evidentiary hearings have already

Page 429

investigated the incident in question. The trial judge’s misconduct has been the basis for a successful motion to set aside the first verdict; it has been the basis for an unsuccessful claim of double jeopardy; it cannot now be the basis for yet a renewed claim of double jeopardy.

There is no error.

In this opinion the other judges concurred.