State v. Anderson

RICHARD ANDERSON STATE OF CONNECTICUT OF CONNECTICUT JANICE ANDERSON STATE 18350)

(SC McLachlan, J., Katz, Palmer, Vertefeuille, Rogers, Zarella and Js. C. officially Argued October released March Near, whom, brief, Allison with on the were William Morris, appellants F. Dow III and Trisha M. for the (defendants). attorney, assistant state’s Lockwood,

Bruce R. senior Kane, were Kevin T. chief whom, brief, with on the supervisory R. assistant attorney, Whalen, state’s John Malone, H. senior assistant attorney, state’s and John appellee for the attorney, (state). state’s

Opinion interlocutory1 appeal2 J. The issue in this ZARELLA, trial court abused its discretion declar- is whether the objection, on the mistrial, over the defendants’ ing necessity after the senior assistant ground of manifest seriously had ill and was unable attorney state’s become to continue with the trial. We conclude that the court did not abuse its discretion. following

The record reveals the relevant facts procedural history. alleged In connection with the dollars, embezzlement of tens of thousands of the defen- dants, Anderson, Anderson Janice each Richard and with, separate informations, were two charged larceny counts of in the first in violation of degree General Statutes 53a-122 and one count of (a) (2),3 § conspiracy larceny commit in the degree first violation of 53a-122 and General Statutes 53a- (a) (2) § § for (a). The two informations were consolidated May jury trial. On 2, 2007, selection commenced and approximately days. jurors continued for fifteen Six and jurors ultimately four alternate During were selected. voir potential jurors, court, Schimelman, dire of the J.,4 jurors informed the expected that the trial was 12, 2007, approximately start on June and to last five and one-half weeks. ruling charges grounds 1A on a motion to dismiss criminal on of double Tate,

jeopardy subject interlocutory See, e.g., review. 262, 276, 773 A.2d 308 appealed Appellate Court, The defendants to the and we transferred the appeal pursuant (c) § to this court to General Statutes 51-199 and Practice § Book 65-1. 3Although (a) subject 2000; § 53a-122 was the of technical amendments in 00-103, 1; bearing see § Public Acts No. those amendments have no appeal. simplicity, on the merits of this In the interest of we refer to the current revision of the statute. 4Hereinafter, court, Schimelman, all references to the trial court are to the J., unless otherwise noted. the state sworn, was 12, 2007, June

On Friday, continued until The trial its case-in-chief. began testified time, witnesses 22,2007. During eight June introduced. On June nearly 400 exhibits were that the senior assis- trial court was informed 2007, the H. case, John attorney prosecuting tant state’s seriously hospital- ill and had to be had become Malone, July 5, 2007, in delayed the trial until ized. The court able to return. Malone would be hope for the hearing the court held July 5, 2007, On to resume the potential dates discussing purpose represented John the state hearing, trial. At the attorney, due assistant state’s Whalen, supervisory R. Initially, Malone. the court illness of to the continued the information it had received on the basis of believed, that the earliest date health, about Malone’s to that date 6, 2007. August could resume was on which the trial potential date with to discuss this The court intended already had jurors, even some though before Malone was hos- concerns expressed scheduling the court- coming before out to pitalized. Just minutes court, agreement with the room, however, telephone spoke with Malone on counsel, defense was to necessitate going that his condition and learned period and a of convalescence hospitalization further parties originally than the and the court longer that was information, new anticipated. On the basis of this had resumption of the trial on concluded that the the court possible. be The court further 6,2007, would not August talk to the would not be feasible to concluded that it Sep- the trial in possibility resmning jurors about of Malone’s because of the seriousness tember, 2007, when he be uncertainty might regarding illness and the trial. complete return to able to its discussion that, during also noted The trial court represented had that chambers, in Whalen with counsel would prosecutor view that another it was the state’s complexity replace Malone because of the not be able to of its own court on the basis agreed, of this case. The and “very complex,” the case was observations, already had offered more than 300 noted that the state yet but had not reached “the exhibits into evidence . . . .” The court further observed heart of the case yet testify had and that that the forensic accountants testimony expected lengthy. their to be The parties that it did not believe that it was informed the and, therefore, feasible to continue with the trial declare a mistrial on the of mani- ground it intended to necessity. fest mistrial,

Prior to a the court afforded coun- declaring Whalen opportunity sel the to be heard on the record. another “could stated that he did not think try to this case until step point salvage in at this it if return.” returns, or finish he doesn’t [Malone] caught Whalen further stated that “we have all been surprise. certainly This is one of those incidents where . . . is well necessity, there is manifest the court in a mistrial.” Defense counsel declaring within the law objected to a mistrial and stated that “the defendants right have a valid constitutional to have the case decided choice,” and that by jury “feeling of their it was his that this was attentive to this case and that [the points had made significant establishing defense] complete reasonable doubt ... if not innocence with respect Defense counsel further [the defendants].” pre- that “the state . . . should have been argued projected in view of the pared,” and, length and com- plexity of the “it would have trial, been wise [for] lawyer state second a case like [to obtained] this [one].” parties’

After hearing arguments, the court sum- jurors moned the and declared a mistrial ground on the necessity. Specifically, of manifest found necessity totality manifest on the basis of “the of the “the medical condition circumstances,” including (1) ability another to ask “the lack of Malone,” (2) . . . time preparation step to in because [prosecutor] “the fact that (3) significant,” . . . would be [there bit, so already chomping at who jurors [were] are] that time constraints speak, because [the court] of the fact that and because estimated originally had they to do.” planned had jurors things these [had] to dis- joint filed a motion The defendants thereafter that the trial them, claiming charges against miss the objection, their mistrial, over declaration of court’s necessity and, there- on manifest not been based had the guaran- would violate prosecution that further fore, court, Handy, J., trial jeopardy. The tee double against to dismiss and concluded the defendants’ motion denied by the court declared properly “the mistrial was manifest objection, based on . . . the defendants’ over alter- possible considered all after necessity, [the court] totality of the circum- weighed after natives and [it] followed. appeal stances.” This court’s claim that the trial appeal,

On the defendants improper because of manifest finding “reasonable, of a explore the alternative court failed to in order to allow continuance lengthy, even if somewhat for the responsibility to assume [prosecutor] another claim that the the defendants Specifically, case.” representations that, due on Whalen’s court’s reliance another would case, complexity to the . . . “without more replace Malone, was, not be able to valued right defendants’ outweigh insufficient [the] addition, jury decide the case.” original have the improperly the trial court claim that the defendants “availability Septem- on their poll failed to in original.) or 2007], beyond.” (Emphasis ber [of entitled the trial court was responds that The state representations regarding Whalen’s to credit that the prosecutor and unavailability of a substitute represen- such disputed challenged never or defendants “very case was or the court’s that the finding tations that the argues . . . .” the state complex Accordingly, to their poll as required trial court was not because such an availability before a mistrial declaring future date futile, have been as there was no act would resume. The state therefore certain when the trial could totality of the circum- that, on the basis of the argues properly exercised its discretion stances, the trial manifest neces- ground a mistrial on the declaring and, therefore, conclude sity. We with the state agree court, Handy, J., properly denied the defen- that the to dismiss. dants’ motion with a review of the doctrine of double begin

We constitutions. The jeopardy under the federal and state pro- States constitution fifth amendment the United subject part: person vides in relevant “No shall ... be put jeopardy for the same offense be twice of life applicable or limb . . . .” This to the states clause process due through the clause the fourteenth Maryland, Benton amendment; 784, 794, 395 U.S. S. Ct. 23 L. Ed. 2d 707 and establishes the (1969); federal constitutional standard concerning guaran- against jeopardy. tee double the Connecticut Although specific jeopardy constitution does not include a double provision,5 process we have held that “the due personal liberty provided by guarantees first, article J., (2005), In State v. Michael 875 A.2d 510 we discussed development protection against jeopardy the historical double under that, dining convention, law Connecticut and noted the 1965 constitutional specifically rejected delegates an amendment that would have added jeopardy they double clause to our constitution because wished to “maintain law, then-existing though they recognized even that it afforded Connecticut ” protection provided by citizens less than that the United States constitution. Id., 352-53. . . . Connecticut constitution 9,7

86 §§ jeopardy.” double encompass protection against Kasprzyk, State (Internal protection The 763 A.2d 655 186, 192, (2001). 255 Conn. the Connecticut jeopardy under afforded double against exceeds,” that which “mirrors, rather than constitution the United States. by the constitution of provided is J., State Michael omitted.) (Internal by jury, 510 In atrial 321, 350, 875 (2005). A.2d 274 Conn. and has been selected “[j attaches once ]eopardy Somerville, 467, . . . Illinois 458, v. 410 U.S. sworn. 425 omit (1973).” (Citation 35 L. Ed. 2d 1066, 93 S. Ct. 539, A.2d Buell, v. 407, 413, 221 Conn. 605 ted.) 121 L. Ed. 2d 904, 297, U.S. 113 S. Ct. denied, cert. 506 221 (1992). jeop- double protection against

The constitutional his “valued to have ardy right includes the defendant’s quo- by particular (Internal tribunal.”8 completed Washington, Arizona v. 434 U.S. omitted.) tation marks “This L. Ed. 2d 717 824, (1978). S. Ct. 54 497, 503, 98 may in some cases absolute, however, and is not right public affording interest subordinated to be his opportunity fair to one full and prosecutor 6 provides first, 8, in relevant § of the Connecticut constitution Article life, liberty property deprived part: person without ... or “No shall be process of law . . . .” due 7 provides: person first, 9, constitution “No § of the Connecticut Article clearly punished, except arrested, warranted or cases shall be detained by law.” Washington, L. Ed. 2d 717 In Arizona 434 U.S. 98 S. Ct. Supreme (1978), forth the reasons behind the States Court set the United right protection have his trial defendant’s of a criminal constitutional by prosecution] completed particular increases the tribunal: second “[A accused, period prolongs the in which burden on the financial and emotional may wrongdoing, by even stigmatized accusation of an unresolved he is may danger convicted. The an innocent defendant be enhance the risk that before exists whenever a trial is aborted unfairness to the defendant of such rule, Consequently, general completed. is entitled as a it is require only one, opportunity trial.” one, an accused to stand Id., 503-505. quota- jury. [Id.], (Internal 505.” impartial evidence to an supra, 221 Conn. Buell, State v. tion marks Therefore, “[w]henacriminaldefendantobjects 413-14. a mistrial . . . and the mistrial

to the declaration of necessity,’ to ‘manifest amounting declared for reasons tribu- completed by to have his trial his chosen right his jeopardy protected nal is no and the double longer Sant, v. Van clause does not bar a second trial.” State A.2d 369, 377, necessity’ for when ‘manifest primary “The definition justifies a mistrial was articulated declaring Supreme Perez, United States Court in United States 579, 580, 22 U.S. 6 L. Ed. 165 (9 Wheat.) (1824) Kasprzyk, supra, Joseph State v. 255 Conn. 193. Justice Story, Perez, for the court in stated: all writing “[I]n nature, cases of this the law has invested of [c]ourts justice authority with the a from discharge giving any verdict, whenever, opinion, in their all the taking circumstances into there is a consideration, manifest necessity justice for or the act, public ends of would They otherwise be defeated. a are to exercise sound subject; impossible discretion on the and it is to define all the . . . circumstances which would render it proper power to interfere. To be sure, ought to be caution, used with the under circum- greatest urgent very stances, plain and for and obvious causes .... faithful, sound, and exercise conscientious of this [T]he upon responsibility discretion . . . rests . . . of under their [j]udges, oaths of office.” United States v. Perez, supra, 580.

Our standard of review for a whether mistrial was justified by necessity manifest is well settled. “Because importance of the defendant’s to have right his by particular tribunal, prosecutor trial concluded a ‘the must shoulder the burden of the mistrial if justifying he is to jeopardy avoid the double bar. His burden is a heavy one. The must demonstrate “manifest objection over the

necessity” any for mistrial declared respect . . . With to construction of of the defendant.’ ‘neces necessity,’ degree’ ‘high the terms ‘manifest may a conclusion be reached sity’ required before . . . .” appropriate (Citation omitted.) a mistrial is 378-79, Sant, State v. Van supra, quoting The Washington, Arizona v. supra, 434 U.S. 505-506. rejected applica has “the Supreme States Court United by judge formula which to any tion of mechanical and often varying a mistrial propriety declaring the course of a criminal unique arising during situations Somerville, supra, 462; 410 U.S. see trial.” Illinois v. Jorn, 470, 480, U.S. 91 S. Ct. also United States v. We, too, have eschewed 27 L. Ed. 2d 543 the manifest stan application of a mechanical necessity mandated ‘high degree’ dard “because variety of circum can be found phrase supra, 379; see also State Sant, Van stances.” Nevertheless, in analyzing Buell, supra, 221 Conn. 414. we have considered the follow prior cases, this issue in (1) timing list of factors: ing nonexclusive mistrial; (2) declaration of a leading events to the by surprise; were taken parties the court and whether available alterna whether the court considered (3) Kasprzyk, a mistrial. See State tives to have stated that “a trial addition, we Conn. 203. if the trial court upheld will not be court’s determination mistrial, or if the court reasonably could have avoided Id., manner.” 203-204. precipitous in an erratic or acted “ ‘the trial decision appellate review, judge’s On a mistrial necessity exists to declare whether manifest ’ ” respect.” “highest degree should be afforded Millan, 1993); United States F.3d 14, 19-20 (2d Cir. v. 17 n.12, Daniels, also v. 374, 207 Conn. 394-95 see trial corut’s assessment (“the A.2d 306 (1988) 542 defer great a mistrial is accorded necessity for Supreme long Court “has The United States ence”).

11 to declare judge in the trial the rule of discretion favored try the defen- panel to require and to another a mistrial . . . and will be best justice if ends of served dant sharp with consistently declined to scrutinize . . . [has] (Citation of that discretion.” surveillance the exercise Gori v. quotation omitted.) internal marks omitted; L. Ed. States, United 368, 1523, 81 S. Ct. 6 364, 367 U.S. disturb the trial we will not Accordingly, 2d 901 (1961). that there was manifest court’s determination United States in the absence of an abuse of discretion.9 9 entirely previous with case law has not been clear We note that our apply respect to a trial court’s decision to the standard of review that we necessity. Specifically, ground we of manifest to declare a mistrial on previously review as follows: “Given the articulated the standard of constitutionally protected involved, reviewing courts must be satis interest fied, Story Perez, judge in in that the trial exercised the words of Justice declaring (Internal sound discretion in a mistrial.” Tate, Kasprzyk, supra, 194; v. 256 Conn. State v. 255 Conn. accord State 262, 279, Autorino, 403, 408, (2001); State v. 541 773 A.2d 308 110, denied, 855, 144, (1988); 102 L. 2d 116 A.2d cert. 488 U.S. 109 S. Ct. Ed. Sant, supra, State v. Van 198 Conn. 379. Whether this standard is satisfied reviewing whether trial court turns on the court’s conclusion as to totality reasonably declaring mistrial, light of the acted in in inquiry engage same that we in under the abuse circumstances. This is the any event, any of discretion standard. In if there is doubt as to what standard applied appeal, Supreme should be on United States Court and federal circuit it of discretion standard that court case law makes it clear that is the abuse applied reviewing is a trial court’s decision to declare a mistrial on the necessity. Somerville, ground See, e.g., v. 410 of manifest Illinois 468; Jorn, supra, 486; U.S. United v. 400 U.S. United States v. Razmi States lovic, Millan, supra, 130, (2d 2007); 17 507 F.3d Cir. United States 20; Williams, 23, (2d Cir.), F.3d see also United States v. 205 F.3d cert. denied, Accordingly, 121 S. Ct. 148 L. Ed. 2d 142 U.S. explicitly opportunity clarify apply we take this our case law and abuse of discretion standard to the case. Supreme applied We further note that the United States Court has review, specifically, scrutiny” different standard of the “strictest standard review, in which there has been intentional misconduct on the cases part Washington, supra, government. See Arizona U.S. scrutiny appropriate (“the strictest is when the basis for the mistrial is the unavailability prosecution evidence, of critical or when there is reason to using superior believe that the resources of the [s]tate advantage accused”). or harass to achieve a tactical over the Because the any allegations case does not concern of intentional misconduct on

12 Somerville, Illinois v. Millan, supra, 20; see v. also supra, 410 court’s decla (concluding U.S. necessity of on manifest ground ration mistrial of Jorn, United States supra, v. discretion); not abuse of U.S. abuse of discretion standard (applying 486-87 mistrial ground to trial court’s decision declare on Buell, supra, State v. 221 Conn. necessity); of manifest J., (Borden, that trial concurring) (concluding 420-21 declaring in mistrial on court abused its discretion Lucci, cf. necessity); of manifest ground of App. 342, 595 A.2d 361 abuse (applying Conn. failure “a to trial court’s to order discretion standard denied, cert. motion”), mistrial on its own determining whether a trial 597 A.2d 336 looks discretion, reviewing court abused its court “[a] necessity examining entire record for manifest to the findings in the case without itself actual limiting pro It is of the trial ... the examination of the court. backdrop priety against trial court’s action leads to the determination record that [of] whether, case, of a the mistrial particular in the context internal proper.” omitted; declaration was (Citations Van Sant, supra, State 379. Conn. present case, to the standard of review this

Applying did not abuse its discre- we conclude that ground a mistrial on the of manifest declaring tion reasonably necessity. The trial court concluded totality the basis of the manifest existed on unexpectedly because Malone (1) of the circumstances no other during trial, (2) became ill prosecution within would have been able assume case, complexity of the light a reasonable time already were “chomping were who (3) there apply scrutiny” part state, we do not the “strictest standard but, rather, generally applicable abuse of stan review the more discretion Millan, See, e.g., F.3d 20 United States n.5. dard. the court the time constraints that bit” because of at the had had estimated and because originally keep. they wished to prior plans with our decision is consistent Our conclusion Sant, In Van supra, 198 Conn. 369. Sant, State v. Van exer- properly in that case we held that the trial court mistrial, over the discretion in a declaring cised its of manifest neces- objection, ground on the defendant’s ill while testi- key state’s witness became sity when a detective, witness, police a Id., 370, 384. The fying. being on the stand while cross-exam- suffered a seizure counsel and was removed from the by ined defense personnel. Id., courthouse on a stretcher medical trial court and n.8. In that the 370-71, concluding mistrial, properly declaring exercised its discretion 380-82. id., we relied on five factors. See generally seriously trial, ill First, key during witness became prevented him from for an testifying and his condition period. id., See 380. With to the wit- regard indefinite condition, ness’ medical we noted the cir- significant personally that the trial saw the wit- judge cumstance quo- ness as “he keeled over the stand . . . .” (Internal omitted.) tation marks Id. The stated that it was judge drastically that there was something wrong “obvious with and that he “was convinced that [the witness]” quota- was no malingering going (Internal there on.”10 addition, tion marks Id. the court found testify detrimentally the witness to “could ordering (Internal quotation affect his health.” marks omitted.) Id., finding 374. This was based on a letter from the testimony witness’ and the of the witness’ cardiologist 10 Immediately prior illness, to the witness’ sudden the witness “had inconsistency testimony become enmeshed in some vis-a-vis his earlier [relating suppress, to motion to which the trial court indicated raised a] questions testimony.” Sant, supra, Van about his trial light timing illness, judge 380. In of the witness’ stated on feigning the record that it his belief that the witness was not illness. Id. that, on the of whom indicated

family physician, both test; id., 371-73; stress of a cardiac basis of the results “ ‘stressful exposed not be to the witness should Id., . . . .” 382. proceedings of the court procedure’ deliberately and proceeded Second, “the trial and in its discretion precipitously” exercising not the trial Id., Specifically, 381. the mistrial. declaring three the mistrial for about delayed declaring court trial Third, See id. “the after the witness’ seizure. weeks to be opportunity counsel the properly gave . . . court Fourth, matter.” Id. the court extensively on the heard implications of its rul- jeopardy the double considered right “the defendant’s by carefully weighing ing public’s and “the completed,” hand, on the one his trial just on the other. judgment,” in a fair trial and interest “realistically court considered Finally, the trial Id., 382. Id., . . . .” 381. The court to a mistrial the alternatives was not a that a continuance reasonably concluded was no fair basis option because viable [on] “[t]here testify.” when could which to estimate [the witness] striking that addition, In the court determined Id., 382. not “resolve the testimony of the witness would the testimony consti- the witness’ problem”; id.; because . .” (Internal evidence . . prosecution “critical tuted Id., 380. Sant, in Van we conclude of our decision On the basis present in case did not abuse the trial court the the First, a mistrial. as with declaring its discretion Sant, seriously Van Malone became state’s witness hospi- trial, and his condition necessitated ill the during period and indefinite lengthy followed talization, just the trial addition, judge as of convalescence. condition of the in Van Sant observed the personally present in the stand, judge the trial witness on the telephone Malone on the spoke with personally case illness and concluded severity of his regarding . not sound “certainly . . did was evident that he it and that “he not to be able to come good” going [was] period back to matter for a of time.” significant this Sant, Van with the court in Second, as trial deliberately court in and “proceeded case Sant, State Van not . . . .” precipitously Conn. 381. The court did rush to a mistrial not declare 24, after first illness learning 2007, Malone’s on June but, rather, days, July waited eleven until until after he learned more about Malone’s condition unavailability and the of a before substitute such action. taking Third, prior mistrial, declaring properly gave opportunity court counsel the to be Fourth, heard. implications court considered the its ruling weighed necessity of a against mistrial their right completed. Spe- defendants’ to have cifically, stated: “I understand the that, and obviously, the fact the have much [defendants] well; certainly invested in matter I as have [the] taken that into But . . consideration. . the court’s [i]n mind, it is not feasible we trial.” that continue this Sant, with Van

Finally, as the trial court in the in court the case considered the alternatives to a mistrial and reasonably they concluded that were not The feasible.11 court found that a contin- reasonable option uance was not a viable because it was not known healthy when Malone would be to return. In enough addition, the court that found no other prosecutor would be able for substitute Malone because of the complexity of the case.12 This finding was based on judge possible rejecting “A trial has acted within his sound discretion in granting judges alternatives in a mistrial if reasonable differ could about proper disposition, [when], sense, the even a strict literal the mistrial [i]n necessary.” (Internal quotation Sant, not [is] Van State supra, 198 Conn. 381 n.10. 12Implicit finding complexity in the trial court’s is that the of the case prevent stepping would another from a within reasonable preparation significant amount because of time time that would of required. be on the in chambers representations

Whalen’s observations, that court’s own record, as well as the . . complex Specifically, . .” “very case was already had more that the state offered court noted yet not into evidence but had reached 300 exhibits than .” . . . The court further heart of the case “the yet had testi the forensic accountants not observed that testimony expected to be their fied and practicality also The court considered lengthy. possible and its effect lengthy continuance granting Sant, Van the trial. See State on all involved whether mistrial Conn. 384 decision (“[t]he [of] [a] Specifi is matter’ manifestly necessary practical ”). ‘a “jurors there were who cally, the court observed that bit . . . already chomping at the because [were] originally had esti time constraints [the court] jurors mated and because of fact that these [had] The they planned had do.” court was things that continuance, if that, granted lengthy it had concerned impartiality impacted the might negatively it have Autorino, See State v. 403, 411-12, jurors. significance A.2d 110 court’s evaluation of (trial special cert. juror respect”), bias is “entitled to possible L. 2d 116 denied, U.S. 109 S. Ct. 102 Ed. “obviously, stated, we particular, will asked to decide consider, who be . . . And I nonguilt of guilt or defendants]. [the certainly be would not want it to to the [defendants’] under [jurors] that we ask the to come back detriment in ... at duress, September to sometime speak, so or non- best, guilt to absolute decide defendants’] [the Van in that our decision sum, we conclude guilt.” in case that Sant supports our conclusion declaring its discretion in the trial court did not abuse mistrial. a conclusion also is consistent with the decisions

Our jurisdictions reviewed courts from other that have of propriety of a trial court’s declaration of a mistrial on the of manifest the illness ground following prosecutor. a general or death of The consensus that a exer properly from these cases is court emerges prose in a a declaring cises its discretion mistrial when that he seriously during cutor becomes ill trial such requires lengthy absence, prosecutor and no other step able in to resume the trial within a reasonable State, See Green v. period. App. 248, 52 Ark. 244, (manifest necessity S.W.2d 171 when (1996) established prosecutor prose became ill deputy and substitution of precluded by cutor of deputy prosecutor’s virtue Critelli, State v. conflict with one juror); 1271, 237 Iowa. 1273, 1278-79, 24 properly (1946) (trial N.W.2d 113 declared mistrial when prosecutor became ill during prosecutor trial, step no other could reason within able time because of complexity case, had Saavedra, State been sequestered); 108 N.M. 40- 43, 766 P.2d 298 (1988) (mistrial reasonable when one week by continuance necessitated illness of defense counsel was followed prosecutor’s back scheduled surgery and neither defendant nor state obtain could substitute counsel due complexity case); Kirby, S.C. 25, 29-30, 236 S.E.2d 33 (1977) (manifest necessity established prosecutor when during died prosecutor and assistant was unable to take over because was “totally he unprepared prosecute remainder the case” “in no emotional condition to continue the case”). Conversely, juris courts other dictions have held that the declaration of a mistrial on prosecutor basis of illness of the is not reason able when substitute could resumed prosecution, when a reasonable continuance could problem have resolved the or when the con record inadequate tained Watson, United States v. See findings. 28 F. Cas. 500-501 (S.D.N.Y. 1868) (No. 16,651) (mistrial not reasonable when record did not indicate after was sworn prosecutor’s

that illness occurred to prosecutor was for another impossible or that it App. Cal. 3d People McJimson, trial); conduct rea Rptr. not 873, 879-81, (mistrial 185 Cal. 605 (1982) to prosecutor was absent due short-term sonable when prosecutor could have been illness and substitute State, Md. 495, 510-12, Jourdan v. assigned case); to necessity prose manifest when (1975) (no 341 A.2d 388 trial and during ill from exhaustion cutor became within prepared could have been prosecutor another to trial or trial could period of time conduct short days prosecutor until another for few been continued to prosecution). The case is akin resume could jurisdictions in which the declaration those of our sister was held to have been reasonable because of a mistrial such he required illness was serious Malone’s able to absence, and no other was lengthy to step complexity in conduct the trial due the case. trial the reasonableness

Notwithstanding present case, in the court’s exercise of discretion of mani- finding claim that trial court’s defendants because the trial court improper fest even “reasonable, alternative of a explore failed to allow continuance in order to lengthy, if somewhat responsibility for [prosecutor] another assume the defendants claim that the Specifically, case.” represen- reliance on Whalen’s uncontroverted court’s of this another that, complexity case, due to the tations was, replace Malone, not be prosecutor would able more . . . insufficient to outweigh “without [the] original jury to have the decide right defendants’ valued claim addition, the defendants the case.” their poll failed to on improperly trial court 2007], beyond.” or “availability September [of merit. These claims have no original.) (Emphasis First, previously as we discussed, clearly the record indicates that the trial court considered the alternative of a lengthy reasonably rejected continuance but such alternative on the basis of its that no other finding prosecutor was step able to in within a reasonable amount of time complexity due to the case, and out of concern that a lengthy continuance might nega- tively impact impartiality the jurors. In making its findings, trial court was entitled to credit Whalen’s representations regarding unavailability of a substi- prosecutor. tute See v. Michael J., supra, 274 Conn. 335 (“[Attorneys are officers of court, they when address the judge solemnly upon a matter before the court, their virtually declarations are made under oath. . Thus, . . the trial court was entitled to credit the prosecutor’s assertions and could have relied on them in support of its finding . . . .” omit- [Citation ted; internal quotation marks omitted.]); see also State Van Sant, supra, 198 Conn. 383 (“[A] trial court con- sidering the exigencies potential mistrial situation cannot be bound the strict rules of applica- evidence ble at formal .... proceedings In such a situation a court must be free to act hand, information at [on] long as it is reliable.” quotation marks [as] [Internal We omitted.]). find it significant that the trial court’s findings regarding feasibility of replacing Malone with another were part based in on the court’s own observations regarding complexity the case. Moreover, the defendants never challenged representations Whalen’s or the trial court’s own obser- vation that the “very case was complex” prior to the court’s declaration of the mistrial. To the contrary, when defense counsel was opportunity afforded the address the trial court, he acknowledged that the case complex merely argued that “the state . . . should have been prepared” and that “it would have been wise the state have a second [for] [to obtained] Finally, appeal, in this on

lawyer a case like [one].” authority any legal cited the defendants not claim that the trial court’s reliance on support their by itself, was insufficient as representations, Whalen’s justify the of a mistrial.13 a matter of law to declaration evidentiary that, Sant, Van an We note court conducted family physician hearing who at examined ill witness testified which the Sant, supra, regarding v. the State Van 198 Conn. 371. witness’ condition. necessity addition, finding in based of manifest In the trial court Van Sant its id., cardiologist. part on a from the witness’ See 373. Our decision in letter evidentiary Sant, however, require hearing formal does not such a in Van necessity. justify finding in in of manifest be held all cases order to a to propriety Instead, challenges a of a mistrial we to the of declaration evaluate id., specific (“[A] case. basis circumstances of each See on the of the potential considering exigencies the of a mistrial situation cannot trial court by applicable proceedings at the strict rules of evidence formal be bound a must be free to act the information .... In such a situation court [on] omitted.]). hand, quotation long In as it is reliable.” marks at [as] [Internal evidentiary hearing Sant, the the court held an because witness Van trial testimony inconsistency his in vis-a-vis earlier “had become enmeshed some suppress, [relating which to motion to the trial court indicated raised a] testimony.” Id., Thus, questions in trial 380. the trial court Van about his malingering (Internal going was “no on.” needed to ensure there Sant addition, finding quotation of Id. In the trial court’s manifest marks subject scrutiny” was to the standard of in Van Sant “strictest id.; appeal; quotation omitted) (internal the on marks because basis review unavailability prosecution the of critical evidence. See for the mistrial was id.; Washington, supra, (“the v. U.S. see also Arizona strictest unavailability scrutiny appropriate is is when basis for the mistrial the the prosecution evidence, when is reason to believe that the of critical or there superior [sjtate using the harass or to is the resources of to advantage accused”). a achieve tactical over contrast, present case, malingering there no of in the were concerns veracity representations no of the of Malone and reason to doubt Sant, scrutiny” Moreover, in which “the Whalen. unlike in Van strictest applied; omitted) (internal v. State Van standard review 380; Sant, supra, apply the standard we abuse discretion Therefore, present in in the case. the trial court case review representations not entitled those and did abuse its discretion to credit evidentiary failing hearing. in to hold a formal Supreme also is with that reached Court Our conclusion consistent Kirby, supra, Kirby, 269 S.C. 25. In there was of South Carolina in State evidentiary hearing prior declaring held an to no indication that the court prosecutor. Rather, following appears that mistrial the death of the it its decision declare a mistrial on own observations trial court based its to circumstances, Under these we cannot conclude that the trial court abused its discretion in declaring mistrial. improperly

The defendants’ claim that the trial court poll jurors failed to in “availability Septem on their or 2007], ber beyond(emphasis original); also [of is without merit. The defendants claim that our decision Tate, 256 Conn. 262, 773 A.2d 308 (2001), required the trial court poll as to their availability after a part continuance as of the court’s duty explore declaring alternatives to a mistrial. We disagree and conclude that the defendants’ reliance on Tate In Tate, “the defendant [James Tate] misplaced. asked the trial inquire jury reporting its deadlock had, whether it in fact, partial reached a Id., verdict.” 285. Tate if argued that, had found him not guilty murder but was charge deadlocked respect with to one of the lesser offenses, included then precluded the state would be from him on retrying the ground jeopardy. of double id., 275, 285-86. See The trial request declined Tate’s and, over Tate’s objection, declared a mistrial. Id., 285-86. On appeal, we held that the trial court improperly declared a mistrial and concluded that the trial polled court should have the prosecutor “totally unprepared prosecute the assistant was to the case”; id., 29; remainder of the and “was in no emotional condition to Id., appeal, that, continue the case.” 29-30. On the court held under the circumstances, necessity clearly “manifest for the mistrial was established.” Id., 29. Although require does “[t]he [United States] not [constitution judge Bates, hearing”; to . . . United States conduct a 917 F.2d (9th 1990); practice n.12 Cir. the better would have been for the trial court inquire greater feasibility in this case having to in detail as to the of another case, any question take over the so as to rule out as to the necessity appeal, however, of the mistrial. On we do not review the trial they court’s practices,” actions to determine whether accord with the “best but, rather, present we review case, them for an abuse of discretion. In the that, although we conclude the trial court did not take the “best” course of action, it nevertheless did not abuse its discretion. because, jury the been requested, as Tate

jury, “[h]ad the whether had reached a verdict on murder asked it defeated, not have been public justice would charge, jury responded If compromised.” Id., or 286. even charge, had not a verdict on the murder that it reached proper have been a basis for a mistrial. then there would not of jury guilty Id. had found Tate If, however, respect with the murder but was deadlocked charge Tate offenses, then would one of the lesser included acquittal charge, to an on the murder have been entitled completed by his trial a his “valued right [to particular upheld.” (Internal would have been tribunal] Therefore, Id. “[t]here ... mistrial no at all to declare a before requested.” Id. inquiry (Emphasis added.) making Tate, however, that, “in explicitly emphasized, In we request,” trial court does not have the absence a jury inquiry make an of the obligation “an such [sua sponte].” Id., n.16.

Tate present from the case. clearly distinguishable Tate, subject requested inquiry in Unlike in a was not whether had reached this case jurors’ availability partial but, rather, verdict after addition, the usefulness continuance. unlike lengthy inquiry Tate, jury inquiry in in the uncertainty light case would have been futile be able return to trial when Malone would regarding prosecutor step another impracticality having and the Sant, Van mid-trial. See State Conn. no not feasible because was (continuance “[t]here fair which to estimate when basis witness] [on] [the Tate, in Lastly, unlike the defendant testify”). could in did not ask the court to defendants case Tate is any inquiry jury.14 Accordingly, make without the defendants’ claim is merit. inapposite, and that, prior argument, appellate intimated to the trial oral counsel At mistrial, requested defense counsel the trial court court’s declaration of a transcript poll availability as after a continuance. The to their motion to dis- denying The decision defendants’ affirmed. miss is PALMER, VERTE- opinion ROGERS, J.,

In this C. concurred. McLACHLAN,Js., FEUILLE and that, letter law as a KATZ, J., dissenting. It black multiple part protection against of the constitutional “ prosecutions, [j]eopardy ‘the affords [d]ouble [c]lause a criminal defendant a valued to have his trial right completed by particular Oregon Kennedy, tribunal.’ L. 667, 671-72, 456 U.S. 102 S. Ct. 72 Ed. 2d 416 Butler, 167, 174, State v. 810 A.2d (1982).” adequately, In order to this safeguard right properly may mistrial, before a trial court declare a it heavy prove is the state’s burden to manifest responsibility and the trial court’s due consider- give ation to feasible alternatives in whether determining Although state has satisfied that burden. a trial court’s decision to order a mistrial is entitled to some my deference, view, present case, it acted improperly process because the which it reached requisite scrupu- that determination does not reflect the sound exercise I lous, of discretion. reach this conclu- adequate sion because the record did not reflect an basis to inform the court’s decision to order a mistrial Specifically, in lieu of other alternatives. there was an inadequate basis from which the trial court could make a reasoned determination it that was not feasible to order a continuance to allow substitute counsel to take deficiency over the case for the state. That resulted from both provide the state’s failure to relevant informa- tion to the trial court and the trial court’s failure to appropriate inquiries. majority’s make Because July 5, proceedings clearly request from the reveals that no such made, Although mistake, however. we assume that this was an inadvertent respect any representations we caution counsel to be more careful with might that counsel make to this court. 24 unduly inadequate is deferential1 this effort

sanction of 1 scrutiny possible majority that there are two levels of The concludes necessity regarding whether to court’s decision manifest afforded the trial necessarily deferential, present exists, highly case and that strict or by requires highly it involve default because does not deferential standard by Supreme specifically States Court identified the United the circumstances however, scrutiny applies. courts, have character under which strict Several spectrum degrees of a as extremes at either end of ized those two standards depending See, e.g., accorded, basis for the mistrial. on the deference Camp 198, 2009); Rushton, (4th United v. v. F.3d 207 Cir. States Baum 572 denied, 1145, bell, 577, (5th 2008), Ct. Cir. 555 U.S. 129 S. 544 F.3d 581 cert. Wecht, 493, 1019, 173 (2009); v. 541 F.3d 505-508 L. 2d 308 United States Ed. 1049, 129 658, 172 (2008); (3d Cir.), denied, L. Ed. U.S. S. Ct. 2d 616 cert. 555 denied, 1053, 2004), Berroa, (11th F.3d Cir. cert. United v. 374 1057 States 932, 1076, (2005); States v. 543 U.S. 125 S. Ct. 160 L. Ed. 2d 817 United Stevens, 579, Ruggiero, (6th 1999); Cir. United States 177 F.3d denied, 966, 491, 117, Cir.), (2d 109 S. Ct. 102 L. Ed. F.2d cert. 488 U.S. 497, Washington, (1988); Arizona v. 434 U.S. 98 S. Ct. 2d 528 see also problems may (citing “spectrum (1978) L. of trial which 54 Ed. 2d 717 amenability appellate vary scrutiny”). a which warrant mistrial and their scrutiny applied spectrum, mistrial At one end strict has been when the by unavailability prosecution prompted of critical evidence or either is advantage, whereas, being prosecution gain a at tactical used spectrum, great has been when the other deference accorded end of the mistrial, jury grounds classic for a deadlock. the mistrial results from the Rushton, supra, (citing Supreme Court to this Baum v. case law See effect). As Baum noted: “Other cases lie somewhere between the court in may spectrum necessity, may not) (or these two on the extremes necessity present satisfy are test.” Id. The facts case manifest jury bias, spectrum jury or even which “lies on the not akin deadlock judge’s where between extremes but is considered ‘anarea these two ” v. Stevens, supra, special respect.’ United States determination is entitled to may scrutiny Moreover, question whether be called for in a 583. I stricter wholly case, one, responsible present state is for such as the which the Nonetheless, I need determine whether two tiers or the mistrial. not spectrum court’s decision of deference should be accorded to a trial ultimate process by because, case, to order a in the which mistrial requisite does not sound exercise of reached its conclusion reflect Wecht, supra, (“ its See United States deference discretion. ‘[T]he finding disappear, judge’s can even accorded the trial manifest jury, judge hung has in the case of a when the trial not exercised classic Berroa, supra, Exactly States v. .... how sound discretion.’ 1057] [United we still more much lessened is not an exact science: are much deference is likely genuinely on a deadlocked to sustain a mistrial declaration based any basis, rigorous more when than on but our review will be somewhat other perceive procedural flaws in a decision.” we [C]ourt’s [Citation [D]istrict

25 and inconsistent with the constitutional of the rights I defendants, Anderson, Richard Anderson and Janice respectfully dissent. majority principles

The has set forth the general not be regarding mistrial, declarations of which need repeated. however, I would highlight, following state, essential the trial court and obligations necessity court. reviewing words manifest “[T]he magnitude appropriately prose characterize the cutor’s burden. Arizona v. Washington, 497, U.S. [434 505, 824, 98 S. Ct. 54 L. Ed. 2d 717 . . . (1978)]. [That] heavy high burden is a ... one. Id. ... degree [A] required may is before a conclusion be appropriate Id., reached that a mistrial .... [506].” (Emphasis added; internal marks omitted.) Tate, State 262, 278, 256 Conn. A.2d (2001). 773 308 'scrupulous “A trial must judge engage therefore a Jorn, United States v. judicial discretion’; exercise 2 U.S. 470, 485, 91 547, 27 S. Ct. L. Ed. 2d 543 (1971)]; [400 Razmilovic, omitted.]); United States v. 130, (2d 2007) 507 F.3d 140 Cir. (“[i]n circumstances, these where the record does not indicate that there genuine [by jury], provided deadlock and the court has not an explanation pointed might for its conclusion or to factors that not be ade quately record, satisfy reflected on a cold we are unable to ourselves that judge declaring mistrial”); exercised ‘sound discretion’ in a see also dissenting opinion. 2 footnote of this 2 scrupulous Although language exercise of discretion is derived from plurality opinion Jorn, in United 485, many States v. 400 U.S. Appeals, many Circuit Courts of this court and other state courts have adopted Rushton, applied See, e.g., Baum v. that standard. 572 F.3d 198, Taylor, (4th 2009); 742, 207 United States (7th n.5 Cir. v. 569 F.3d 746 Lara-Ramirez, 2009); United States v. 76, (1st Cir. 2008); 519 F.3d 83 Cir. Huang, United States v. 1128, (2d 1992); United States 960 F.2d 1134 Cir. Dixon, 1305, 1311, Hogg, (8th v. Jones v. 1990); 913 F.2d 1313 Cir. 732 F.2d 53, Grasso, (6th 1984); United 46, States (2d 56-57 Cir. v. 552 F.2d 52 Cir. Tinney, 1977); United 1085, States (3d Cir.), denied, v. 473 F.2d 1089 cert. 928, Saunders, 2752, (1973); 412 U.S. 93 S. Ct. State v. 37 L. Ed. 2d 156 267 363, 394, 186, denied, 1036, 2113, Conn. 838 A.2d cert. 541 U.S. 124 S. Ct. People Segovia, (2004); 1126, 1133 (Colo. 156 L. 2008); Ed. 2d 722 v. 196 P.3d State, People Edwards, Swanson v. 1242, (Del. 2008); 956 A.2d 1244 v. App. Fassero, 615, 623, (2009); Ill. State v. 3d 902 N.E.2d 1230 256 S.W.3d 109, Kornbrekke, (Mo. 2008); 821, 829, 156 N.H. 943 A.2d 797 ‘assure himself that the situation warrants in order to part foreclosing his the defendant from action on Id., the tribunal.’ 486.” potentially judgment favorable Buell, State 415, added.) 407, (Emphasis 297, 113 S. denied, cert. 506 U.S. Ct. A.2d possible “All 2d 221 alternatives L. Ed. considered, employed must be mistrial found wanting before declaration of a over the defen mistrial Pugliese, State v. justified. is 120 N.H. objection dant’s added; 728, (Emphasis A.2d inter 730, 422 (1980).” 1319 Tate, State v. omitted.) supra, nal marks Tinney, accord United States 1085, v. 473 F.2d 286-87; duty places judge on the trial Cir.) (“Jorn 1089 (3d possibilities all reasonable before to exhaust other proceed. to option deciding to foreclose [a defendant’s] . scrupulous . . The exercise that discretion means must seek and consider all avenues of cure he out omitted.]), quotation marks abortion.” avoid trial [Internal denied, 928, 2752, U.S. S. Ct. L. rt. 412 93 37 ce Ed. 2d 156 necessity by looks for manifest reviewing

“A in the limiting record case without examining entire ... findings itself the actual trial court. It propriety of the trial court’s the examination backdrop of the record leads against action in the context of a whether, to the determination [of] case, proper. mistrial declaration was particular constitutionally protected involved, Given interest be satisfied . . . that courts must reviewing judge exercised sound declaring discretion in a mis- emphasis quo- omitted; added; trial.” internal (Citations Sant, State Van v. 198 tation marks Conn. accord United States v. 369, 503 A.2d 557 379, (1986); Dinitz, language from ^[146] (2008); Wash. v. 424 U.S. App. 471, Jorn). Voigt, 600, 607, 479, ^[734] 96 S. Ct. N.W.2d 787, ^[191] P.3d 906 1075, ^[791] (2008); L. (N.D. Ed. 2d 267 see also 2007); State (1976) (citing United v. Robinson, States this v. Scott, 82, 96, 2187, 437 U.S. 98 S. Ct. 57 L. Ed. 2d 65 characterization of his own (1978) (“a judge’s action cannot control the classification of the action” quotation Sound discretion omitted]). [internal requires that, the trial court need not state although expressly record, its on the the record must findings adequate an reflect factual basis to inform the court’s reasoned decision to order a mistrial lieu of other alternatives that would allow the trial to continue.3 See Washington, Arizona (no 434 U.S. 517 consti- impropriety tutional when “basis for the trial judge’s adequately mistrial order is disclosed the record” to demonstrate “deliberate exercise of his discretion”); Petro, 653, (6th 2008) (“the See Ross 515 F.3d Cir. failure of a explicitly explain ruling governing lower court to its in terms of the standard determinative, long provides justification is not as as the record sufficient ruling”), Rogers, for the cert. denied sub nom. Ross v. 555 U.S. 129 S. 906, 173 (2009); Razmilovic, Ct. L. Ed. 2d 109 United States v. 507 F.3d (2d 2007) (“[w]hile judge constitutionally Cir. a trial is not mandated explain provides significant the decision to declare a mistrial if the record justification . . . when we are unable to discern from the record that a genuinely deadlocked, judge’s explanation, elaborating was a trial on mistrial, inquiry” omitted; the decision to declare a can aid our [citation quotation omitted]); Bates, 388, internal marks United v. States 917 F.2d (9th 1990) (“[t]he require n.12 judge Cir. does not [c]onstitution hearing to consider the alternatives on the record or conduct a . . . but support finding necessity justified the record must the that manifest the omitted]); Smith, 350, mistrial” (9th United States v. 621 F.2d [citation 1980) (“The gives Cir. record no indication that the court here even consid possibility ordering ered the of a continuance before a mistrial. Since the consider, necessary thorough court did not or have it the before facts for of, mistrial, say consideration an obvious alternative to a we cannot that ” necessity’ [Emphasis there was a ‘manifest to terminate the trial at that time. added.]); Dunkerley Hogan, 141, (2d 1978) v. (“Although 579 F.2d Cir. findings of fact or a statement of the trial court’s reasons for the declaration constitutionally mandated, of a mistrial are not the failure of the record to provide adequate support judge’s may for the trial action bar a retrial. It is not, enough plausible might conceivably judge’s reasons exist for the trial discretion, action. If we are to review his exercise of to which deference ordinarily accorded, should be we must know the basis for that decision by record, including argument prior as judge’s disclosed of counsel to the ruling.” quotation omitted.]), denied, 1090, marks [Internal cert. 439 U.S. 872, S. Ct. 59 L. Ed. 2d 56 Lara-Ramirez, see also United States 519 F.3d appeal on to deter- task (1st 2008) (“Our 84-85 Cir. mis- district declaration of a judge’s mine whether the reasonably necessary was under all . . . We this determina- guided circumstances. are interrelated factors: tion consideration three [i] were and explored to mistrial whether alternatives an exhausted; opportunity whether counsel had [ii] decision heard; judge’s be and whether [iii] omitted; made after sufficient reflection.” [Citations States United omitted.]); internal it is Bates, 1990) Cir. (9th (“When 917 F.2d 395-96 certain, reviewing patently that reversal is not clear Supreme record, must since the scrutinize requires appeal the courts of ascertain Court in the properly discretion the trial court exercised its Supreme it. The Court circumstances that confronted on four indicators appellate and courts relied discre- the trial court abused its whether determining tion. Has the trial judge ^[1] heard the opinions of the parties about the propriety mistrial, ^[2] consid- alter- to a mistrial and chosen the ered the alternatives native least harmful to a defendant’s rights, ^[3] acted deliberately instead abruptly, ^[4] properly deter- decla- benefit from the mined that the defendant would determining whether mistrial?”). ration of jeopardy of mistrial has violated double granting liberty any in favor of the doubt clause, resolve “[w]e what be an rather than exercise would citizen, arbitrary judicial unlimited, uncertain, discretion.” United Downum quotation marks (Internal 2d States, 738, 1033, Ct. 10 L. Ed. 734, 83 S. U.S. States, v. United A.2d accord Sanchez (1963); 2007). 1151 (D.C. case, that present agree facts of I Turning to the deciding did not abuse its discretion State’s the case until Senior Assistant continuing that Attorney John Malone recovered from his illness was not a feasible alternative to declaring a mistrial. The directly trial court communicated with Malone to affirm unavailability his and to assess the seriousness of his and, condition as a result, learned of Malone’s diagnosis pneumonia hospitalization. and imminent There is in the record nothing any question to raise as to the veracity of these facts. In light the facts gleaned upon this inquiry, reasonably the trial court concluded that Malone’s return date was too indeterminate to allow a continuance pending his return.

The inquiry aforementioned and the facts gleaned from that inquiry stand in stark contrast to the basis, however, for the trial court’s determination that it was not feasible to order a continuance to allow substitute counsel to take over the only case. The statement made by on the record the state relative to this matter was the following sweeping, self-serving by statement State’s Attorney John Whalen: “I don’t think anyone step could in at point try this this salvage case until [Malone] returns or finish it if he doesn’t return.”4 (Emphasis Whalen added.) represent did not anyone from his office actually inquired had into the availability of other attorneys state’s in the crime fraud unit to take over case, nor, inquiry an had been made, how this if such ultimate determination had been reached. Cf. United Lynch, States v. 598 F.2d 135-36 Cir. (D.C. 1978) (no abuse of discretion to order mistrial on basis of judge’s illness after initial two week continuance and unequivocal Because position, the state took such an defendants, clearly stating they go addition to wanted to forward with the jury, response state, limited their to the court as follows: with all “[T]he respect, prepared. due Knowing should have been a trial of this dimension projected that was presenting to be five weeks of of evidence the state many exhibits, with that it would have got been wise had the state a second lawyer note, however, in a case like this.” I that the defendants had no produce specific objections burden to evidence or make to the mistrial Sant, decision. See Van 198 Conn. 381-82 n.11. inquiries later determined that judge’s

administrative were available to cert. judges substitute), no other 99 S. 59 L. Ed. 2d 498 denied, 440 U.S. Ct. any to the court provide Nor did he information necessary be for preparation the time that would about have been substitution, a information that could such .5 the brought Whalen never to obtained from Malone the fact that other members of court’s attention the attorney previously had been office of the chief state’s case,6 in the and there no evidence that involved anyone that had ascertained whether assis from office prepa staff members could minimize the tance these the did sum, for counsel. state ration time substitute with substitute nothing prove to that continuance the option. Accordingly, was not a feasible on counsel essentially provided it had such informa The state later conceded that not prior In its on the to the declaration of mistrial. tion to the court record evidentiary findings, request hearing and which was for an factual second dismiss, opposition to the along defendants’ motion filed with its the presented with certain evidence trial court was not state asserted: “[T]he required preparation concerning time for a substitute assistant state’s the trial, attorney the and to familiarize himselfdierself with case resume complexity point apart was the itself to the at which it from the exhibits, interrupted large was the number of because who and [Malone] necessary preparation only person knowledgeable time was about the July attorney hospitalized on who had the cases and 5 [2007] tried provide judge.” presiding to the to travel to court to that evidence unable directly spoken fact had with Malone We note that the day suggests from that it ordered mistrial someone on same spoken attorney chief also could have to Malone. the office of the state’s Alternatively, the office the chief attor because other members of state’s case; opinion; ney dissenting had involved in the see footnote of this been sought from them. information could been support According Anderson’s war to the affidavit in of Richard arrest attorney, rant, people state’s at least three from office chief O’Connor, Malone, (1) involved in the case: Michael addition to had been years thirty experi inspector computer force for the crimes task with an investigated ence, in the arrest warrant and had who was the affiant complainant, Luigi Chinettd,Jr.; Sharma, allegations (2) Vic a forensic examiner, complainant who met with the in 2003 and was sched fraud had (3) testify state; State’s in the cases for Senior Assistant uled complainant Attorney Gary Nicholson, with in 2003. who also had met essentially was, position record, the state’s basis of this statement, that no one by Whalen’s as evidenced first, sec- prosecute case, and, the Malone could other than provide any failure to by the state’s as evidenced ond, the trial court court, the that information to relevant feasibility the state’s assessment should defer to substitute counsel. Under the case with continuing how the state met its circumstances, question I these a mani- that a mistrial was “heavy” proving burden of necessity. fest provide failure to such information

Despite the state’s at hand creating situation responsibility and its attorney to what it now character- only one assigning the trial court made complicated case,7 a highly izes as facts relevant to regarding on the record inquiries no with substitute counsel. feasibility of a continuance however, inquiries such record, In the absence of a clear aspect of the soundness of the exercise are an essential Compare Moore, Fulton v. of the court’s discretion. manifest (concluding Cir. that (6th 2008) F.3d when, alia, judge was met inter standard period how would be long “asked defense counsel indictment, amended dem- prepare needed to under the jury he considered back at onstrating calling v. Lara-Ramirez, a later with United States date”) 519 F.3d 87 has (“Although [District [C]ourt appropriate procedure broad to fashion an discretion jury exposed for whether has been assessing substantively information, so, and if whether damaging prejudice is an inevitable and ineradicable cognizable jury’s exposure improper concomitant of the to an out- side influence . . . the does not have discretion judge slightly position The state look a different in its motion to consolidate motion, represented: against the cases the two defendants. In that the state supported by relatively uncomplicated “Each information is series of facts presented confusing will not be to the when the course of the same trial . . . .” at all any inquiry regarding

to refuse to conduct the extent event and taint-producing magnitude prejudice. Accordingly, resulting [District of the scru- in this case fell short investigation [C]ourt’s required sup- judicial discretion exercise of pulous omitted; declaration.” port the mistrial [Citation Camden Cir- omitted.]) internal Circuit, 892 F.2d Judicial Court the Second cuit J., dissenting) (reaching 1989) (Posner, Cir. (7th by majority and necessity issue not reached manifest for mis- necessity existed that no manifest concluding court had failed juror bias when trial on basis of trial be juror biased could jurors to inquiry to make apparently The trial court replaced alternate). with sufficient facts from glean that it could determined its burden that the state had met to conclude record necessity. I therefore turn to manifest establishing those facts. Schimelman, J., stated that the

First, court, to the more than complicated, pointing case was days of eight in the had been submitted exhibits that and, therefore, concluded fact, of that trial as evidence require prepa- significant would that substitute counsel simple was not a that the case agree ration time. I would however, that clear, makes A review of the record one.8 the exhibits submitted majority of overwhelming introduced in short had been simply checks that were also reflects day trial.9 The record on a single order however, public point out, are all too familiar defenders 8 Iwould also they routinely assigned short are to cases on wherein with circumstances quickly expects to familiarize nonetheless them and the trial court notice competent provide defense. and to the details of the case themselves with state, especially why a double standard for the reason there should be I see no jeopardy implicated protection against right double when the attorney single assign to a case that it state’s has chosen to the state complex. deems approximately percent log that 80 for the exhibits reveals The day, and almost all of these on the same exhibits were introduced 350 state day, daybook, According on that to the trial court’s were checks. exhibits fifty ranging periods minutes. from ten to for brief three witnesses testified of the foren- testimony, that complicated that the most a contin- yet Therefore, accountants, begun. had not sic ability jury’s impaired uance would not the case. complicated aspects of recall the most that there pointed to the fact Second, the trial court impatient original because of were who were weeks, plans schedule of five and one-half already delay that had made and the jurors had record, how- court stated on occurred.10 The trial jury to determine polling it had considered ever, that 2007, was feasi- September, until whether a continuance be able to might that Malone thought ble when it had explain why such a continu- by then. It did not return circumstances, under those option ance was a viable course, Of because the for substitute counsel. but not pre- which it could be provided had no date state counsel and the trial pared proceed with substitute matter, the court had inquire court declined to into that availability to its poll on which to as no basis United States September any or other time. See Lara-Ramirez, 87-88 its written (“In 519 F.3d opinion dismiss, motion to denying [the defendant’s] that, circumstances, stated view of all the ‘[i]n ability to render a jurors as to their cautioning would any verdict reference to the Bible discarding not understand the self-defeating.’ have been We do developed basis for these a more generalities. Although the Bible had supported findings record have that might in deliberations and that individual played a central role jurors would not have been able to its influ- disregard trial, July, original Given the scheduled end date of the near the end of jurors 2007, assumption summer the most reasonable is that these had plans. Indeed, opposition vacation in its memorandum of law in to the case, defendants’ motion to dismiss the the state asserted: “It must be began spring in late and extended into the summer remembered that the trial months, many people take their annual vacation.” If that were time when case, jurors might long have been more amenable to a continuance rather than a short one. in this findings record.”); no basis for such

ence, we see Superior Court, United States ex rel. Russo v. 483 F.2d trial court’s 7, 1973) (concluding 15-16 Cir. (3d jury was too exhausted to continue determination that inquiries in absence of as to improper deliberations progress or their toward jurors’ physical condition Lansdown, States v. United verdict and reaching citing 1972], which held that conclu 164, 169 460 F.2d Cir. [4th sup be inability jury to reach verdict must sion of to” trial court’s by addition ported “something cert. “long enough”), had deliberated decision L. S. Ct. Ed. 2d 315 denied, 414 U.S. there is no indica jury, however, With to the regard any to the fact that weight that the trial court gave tion jury. select this Nor is there it had taken one month to considered the fact that any that the court indication whom jurors, might alternate some of there were four any place in the have been to serve willing have been unavailable at a later might six who if that, it were Rather, suggested date. the trial court continuance, jury might prejudiced be to order a had defendants, however, The the defendants. against jury. In the to continue with this asserted their desire that the concrete reason to believe absence of some speculation court’s bias, have such jury would “valued right not override the defendants’ should particular tribunal.” completed [their] Butler, (Internal Shafer, United States 174; see also matter, an initial 1054, 1058 1993) (“As F.2d Cir. (4th by any statements put we must aside [District by con partially motivated that the mistrial [C]ourt . . . We note that the defense. prejudice cerns of defendant], were not shared such reservations [the omitted.]). the trial to continue.” who wanted [Citations that the state’s sum, suggest I do not intend to inquire and the trial court’s failure to provide, failure to every fact that to whether be relevant about, might will order alternative is feasible render a mistrial an Moreover, open possibility I am to the improper. justified facts the conclusion might the actual pres- was not feasible. The record a continuance facts to case, however, does not reflect sufficient ent scrupu- sound, the trial court to exercise have allowed the alternative of a continu- rejecting lous discretion an Therefore, court’s failure to conduct ance. “[t]he adequate leaves us with a record that does investigation manifestly support the that the mistrial was finding not necessary. support, In the absence of such record [the completed to have right valued defendants’] [their] by particular (Inter- tribunal is not to be foreclosed.” United States v. Lara- nal Ramirez, supra, 519 F.3d 89. I respectfully dissent.

Accordingly, MARTIN DERRANE CITY OF ET AL.

HARTFORD (SC 18340) J., Norcott, Katz, Rogers, Palmer, McLachlan, C. Zarella and Js.

Case Details

Case Name: State v. Anderson

Court Name: Supreme Court of Connecticut

Date Published: Mar 2, 2010

Citation: 988 A.2d 276

Docket Number: SC 18350

Court Abbreviation: Conn.