State v. Patrick M.

Citations

• 352 Conn. 54

Syllabus

This court recognized in State v. Colton (234 Conn. 683) that, in accordance with the United States Supreme Court's decision in Oregon v. Kennedy (456 U.S. 667), and the Second Circuit Court of Appeals' decision in United States v. Wallach (979 F.2d 912), the double jeopardy clause of the federal constitution bars a retrial if the prosecutor had engaged in impropriety with the intent to prevent an acquittal that the prosecutor believed was imminent in the absence of the impropriety. The defendant filed an interlocutory appeal with this court from the trial court's denial of his motion to dismiss the murder charge against him. The defendant previously had been convicted of, among other crimes, murder, but this court reversed his murder conviction and ordered a new trial on the ground that the prosecutor, during the defendant's earlier criminal trial, had improperly commented on the defendant's silence occurring after he had been informed of his rights under Miranda v. Arizona (384 U.S. 436), in violation of Doyle v. Ohio (426 U.S. 610). On appeal from the denial of the motion to dismiss, the defendant claimed, inter alia, that double jeopardy protections barred a retrial on the murder charge insofar as the prosecutor, in commenting on the defendant's post-Miranda silence, had intended to prevent an acquittal that the prosecutor believed was imminent in the absence of the Doyle violation. Held: The trial court correctly determined that the defendant failed to establish that the prosecutor, in commenting on the defendant's post-Miranda silence, had intended to prevent an acquittal that the prosecutor believed was likely to occur but for the prosecutor's improper comments, and, accordingly, the trial court properly denied the defendant's motion to dismiss. The defendant did not waive his double jeopardy claim by failing to move for a mistrial despite his awareness of the prosecutor's Doyle violation, as defense counsel moved for a new trial after the jury verdict on the