************************************************
The “officially released” date that appears near the
beginning of an opinion is the date the opinion will be
published in the Connecticut Law Journal or the date it
is released as a slip opinion. The operative date for the
beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports. In the event
of discrepancies between the advance release version of
an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut
Reports or Connecticut Appellate Reports, the latest
version is to be considered authoritative.
The syllabus and procedural history accompanying
an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or
Connecticut Appellate Reports are copyrighted by the
Secretary of the State, State of Connecticut, and may
not be reproduced or distributed without the express
written permission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
************************************************
Page 0 CONNECTICUT LAW JOURNAL 0, 0
2 ,0 0 Conn. 1
State v. Patrick M.
STATE OF CONNECTICUT v. PATRICK M.*
(SC 20925)
Mullins, C. J., and McDonald, D’Auria, Ecker and Dannehy, Js.
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 ground
that that prosecutor had violated the defendant’s rights under Doyle, and
the fact that the defense moved for a new trial rather than a mistrial did
not change the fact that the reason for doing so was because of a claimed
constitutional violation by the prosecutor.
* In accordance with our policy of protecting the privacy interests of the
victims of family violence, we decline to use the defendant’s full name or
to identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
0, 0 CONNECTICUT LAW JOURNAL Page 1
0 Conn. 1 ,0 3
State v. Patrick M.
The defendant, in connection with his motion to dismiss, did not present any
additional evidence regarding the prosecutor’s intent during the defendant’s
criminal trial, this court previously had concluded that the evidence presented at the defendant’s trial was sufficient to sustain his murder conviction,
and the transcripts of the prosecutor’s cross-examination of the defendant
and closing argument, when assessed objectively, revealed that the prosecutor was attempting to secure the defendant’s conviction rather than to goad
the defense into moving for a mistrial on the basis of the prosecutor’s belief
that an acquittal was likely to occur but for the Doyle violation.
Moreover, this court declined the state’s request to overrule Colton and
declined the defendant’s request to overrule State v. Michael J. (274 Conn.
321), in which the court concluded that the state constitution did not provide
broader double jeopardy protections in this context.
Argued January 31—officially released June 3, 2025
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a firearm, brought to the Superior Court in the judicial district of New Britain, where the charge of murder was
tried to the jury before Oliver, J.; verdict of guilty;
thereafter, the charge of criminal possession of a firearm was tried to the court, Oliver, J.; finding of guilty;
judgment of guilty in accordance with the jury’s verdict
and the court’s finding, from which the defendant
appealed to this court, which reversed the judgment
and remanded the case for a new trial; subsequently,
the court, Keegan, J., denied the defendant’s motion to
dismiss, and the defendant appealed to this court.
Affirmed.
Michael W. Brown, assigned counsel, for the appellant (defendant).
Jonathan M. Sousa, assistant state’s attorney, with
whom, on the brief, was Christian M. Watson, state’s
attorney, for the appellee (state).
Opinion
D’AURIA, J. In this interlocutory appeal, the defendant, Patrick M., appeals following the trial court’s
Page 2 CONNECTICUT LAW JOURNAL 0, 0
4 ,0 0 Conn. 1
State v. Patrick M.
denial of his motion to dismiss the charge of murder in
violation of General Statutes § 53a-54a (a) in connection
with the death of his wife, the victim, Y, contending
that, in light of our reversal of his earlier conviction on
the ground of prosecutorial impropriety, retrying him
would violate his constitutional right against double
jeopardy. The defendant had been previously convicted
of the currently pending murder charge following a jury
trial, as well as criminal possession of a firearm in
violation of General Statutes § 53a-217 (a) (1) following
a bench trial, resulting in a total effective sentence of
fifty-five years of incarceration. This court reversed the
defendant’s murder conviction1 and remanded the case
for a new trial on that charge after determining that the
prosecutor had improperly commented on the defendant’s post-Miranda2 silence at trial, violating his right
to a fair trial under Doyle v. Ohio, 426 U.S. 610, 619,
96
S. Ct. 2240,
49 L. Ed. 2d 91 (1976). See State v. Patrick
M., 344 Conn. 565, 569–70,
280 A.3d 461 (2022). The
defendant argues that the double jeopardy clause of the
fifth amendment to the federal constitution, which is
applicable to the states through the due process clause
of the fourteenth amendment; see, e.g., Benton v. Maryland, 395 U.S. 784, 794,
89 S. Ct. 2056,
23 L. Ed. 2d
707 (1969); bars a retrial because the prosecutor had
violated Doyle with the intent to prevent an acquittal
that the prosecutor believed was imminent absent the
Doyle violation. We disagree and affirm the trial
court’s decision.
The jury reasonably could have found the following
facts relevant to this appeal, as summarized in State v.
1
This court did not reverse the defendant’s conviction of criminal possession of a firearm.
2
Miranda v. Arizona, 384 U.S. 436,
86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966);
see id., 468 n.37 (‘‘[I]t is impermissible to penalize an individual for exercising
his [f]ifth [a]mendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood
mute or claimed his privilege in the face of accusation.’’).
0, 0 CONNECTICUT LAW JOURNAL Page 3
0 Conn. 1 ,0 5
State v. Patrick M.
Patrick M., supra, 344 Conn. 569–70. The defendant and
the victim were married in 2015 and had one child
together, P. Id., 570. On April 7, 2017, a neighbor called
the police because she heard ‘‘fighting, yelling, and bodies being tossed around’’ in the defendant’s apartment
in New Britain. Id. The police forcibly entered the apartment after no one answered the door and found the
victim ‘‘face down in a pool of blood’’ with multiple
gunshot wounds to the head. Id. P was nowhere to be
seen. Id., 571. At the crime scene, the police found gun
shell casings, bullet fragments, multiple cell phones,
narcotics, approximately $2900 in cash, and evidence
of a struggle. Id. The police ultimately located P in
Brooklyn, New York, at the home of the defendant’s
sister. Id. The defendant’s sister told the police that he
had brought P to her house during the morning of April
8, 2017, asking that she ‘‘take care of [his] daughter.’’
(Internal quotation marks omitted.) Id. The defendant
also called his aunt on that date, telling her, ‘‘I love you.
. . . I’m sorry. I’m on the run.’’ (Internal quotation
marks omitted.) Id., 573–74.
The police found the defendant several days later in
Massachusetts. Id. He was arrested and charged with
murder and criminal possession of a firearm, for which
he respectively elected a jury trial and a bench trial.
Id. At trial, Dwayne Watson, who had a child with the
victim’s sister, testified that, on the day of the victim’s
death, he saw the defendant twice in a gray vehicle,
once in the afternoon when the defendant picked P
up from school, and again in the evening when the
defendant drove to Hartford. Id. Another witness, Daniel Thomas, who worked with the defendant selling
drugs, testified that, after learning that the victim had
been killed, he ‘‘received a phone call from the defendant, in which the defendant asked him what was going
on out there. Thomas responded that people [were]
saying that you killed your girl, and the defendant
Page 4 CONNECTICUT LAW JOURNAL 0, 0
6 ,0 0 Conn. 1
State v. Patrick M.
replied, for real? That’s what they saying?’’ (Internal
quotation marks omitted.) Id., 572. The next morning,
Thomas received a text from the defendant asking him
to pick up the gray vehicle in Brooklyn and to look
up how much time someone would get in prison for
murder. Id.
The defendant testified in his own defense, stating
that he had picked up P from school in the gray vehicle
but later drove to Hartford in a blue vehicle. Id., 573.
He testified that he had entered his apartment, noticed
that a large amount of cash and drugs were missing,
and saw the victim dead on the floor. Id. He then stated
that, out of fear, he grabbed P and drove to New York
to get her to safety. Id. He testified that he did not
contact the police because Thomas called him while
he was driving to New York and told him that he was
a suspect in the victim’s murder. Id.
The jury found the defendant guilty of murder. On
appeal, this court reversed the defendant’s murder conviction and ordered a new trial based on the prosecutor’s Doyle violation at the defendant’s jury trial.
Specifically, that violation consisted of the prosecutor’s
repeated comments during closing argument that the
defendant’s silence until the time of trial suggested that
he was fabricating his testimony. Id., 579. Summarizing
that argument, we noted that ‘‘[t]he prosecutor first
invoked this theme . . . by arguing: ‘Now, the defendant told you today [that] his fear [was] the reason for
taking the child to New York. Considering your common
sense, would it be reasonable to tell your close family
about the event? I submit to you [that] the first time
we’re hearing anything about this sequence of events
or the basis was this morning through [the defendant’s]
testimony.’ . . . The prosecutor asked the jury
whether the defendant’s ‘reaction, this fear reaction and
the actions that [the defendant] testified to you today
that he took, does that fit your commonsense view of
0, 0 CONNECTICUT LAW JOURNAL Page 5
0 Conn. 1 ,0 7
State v. Patrick M.
how a parent would behave in the wake of the violent
death of [his] spouse, or would that parent be taking
every step possible to comfort, to shield [P] from what
had just happened, and to try very hard, if there were
an alternative theory, and I submit to you that there
isn’t . . . to make sure that that theory was properly
investigated? But [the defendant] didn’t do that.’
Instead, he ‘went to New London, and he hung out
with some woman for a couple days,’ and then went
to Massachusetts.
‘‘The prosecutor soon returned to the theme that the
version of events to which the defendant testified at
trial was a recent fabrication: ‘Now, today you heard
for the first time about this subsequent meeting where
[the defendant] goes to Hartford to see . . . Thomas,
gets some marijuana, change[s] cars, get[s] the car that
has the trap set up in it so that he could secure the
money for the ride down to New York. . . . Now, this
morning you hear about the trip to New London, you
hear about the ultimate trip to Massachusetts to the
friend’s relative’s house, and you hear, for the first time
this morning, the mention of this large quantity of drug
money. The follow-up trip to Hartford is the first time
you heard about that this morning. And common sense
would show you that this information, closer to the
time of the crime, might be important to direct the
investigation.’ . . . The prosecutor also argued that the
defendant ‘can’t really have it both ways’; he cannot
criticize the police for their failure to investigate a robbery while at the same time refus[e] to disclose that a
robbery occurred. ‘If [the police] had information
closer to the time of this incident that this was a robbery involving a very large quantity, essentially more
than most people’s annual income was on this kitchen
table, if you’re to believe that, the police probably would
have changed the tactics that they used to investigate
this crime. We’ll never know because they didn’t know
Page 6 CONNECTICUT LAW JOURNAL 0, 0
8 ,0 0 Conn. 1
State v. Patrick M.
that because the first time you heard about it was this
morning.’ ’’ (Emphasis in original.) Id., 579–80.
On remand, the defendant moved to dismiss the trial
charge, arguing that the prosecutor had committed
impropriety during the trial with the intent to prevent
an acquittal that the prosecutor believed was imminent
absent the impropriety. See State v. Colton, 234 Conn.
683, 696,
663 A.2d 339 (1995) (double jeopardy clause
bars new trial when ‘‘prosecutor in the first trial engaged
in [impropriety] with the intent ‘to prevent an acquittal
that the prosecutor believed at the time was likely to
occur in the absence of his [impropriety]’ ’’), cert.
denied, 516 U.S. 1140,
116 S. Ct. 972,
133 L. Ed. 2d 892
(1996). The defendant did not request a hearing during
which he could provide evidence demonstrating the
prosecutor’s intent at the time of the impropriety,
instead asking the trial court to infer the prosecutor’s
intent based on the existing record, consisting of the
transcripts from the trial and this court’s decision in
State v. Patrick M., supra, 344 Conn. 565. The state
argued in response that the prosecutor’s impropriety
did not amount to the intentional mindset that this
court articulated in Colton, given that this court did not
remand the matter for dismissal despite its awareness
of Colton. The trial court, applying Colton, denied the
defendant’s motion to dismiss because, based on its
review of the record, it did not ‘‘seem like the Doyle
violation . . . was intended to impede the possibility
of a mistrial.’’
The defendant then filed this direct interlocutory
appeal with this court pursuant to General Statutes § 51-
199 (b) (3), challenging the denial of his motion to
dismiss. See, e.g., State v. Butler, 262 Conn. 167, 172
n.4, 810 A.2d 791 (2002) (‘‘[a]lleged violations of the
right against double jeopardy fall within the ‘small class
of cases that [meet] the test of being effectively unreviewable on appeal from a final judgment and therefore,
0, 0 CONNECTICUT LAW JOURNAL Page 7
0 Conn. 1 ,0 9
State v. Patrick M.
[are] subject to interlocutory review’ ’’). On appeal, the
defendant renews his argument that the double jeopardy clause bars his retrial because the prosecutor
intentionally violated Doyle during the jury trial to prevent an acquittal that the prosecutor believed was imminent absent the impropriety. The defendant specifically
contends that the trial court improperly based its conclusion on this court’s previous determination that the
evidence was sufficient to support his conviction and
that the trial court should have instead focused its
inquiry on this court’s previous assessment that the
evidence, although sufficient, was not overwhelming,
as well as on the relationship between the impropriety
and the weaker aspects of the state’s case. He posits
that, had the trial court focused its inquiry in this way,
it would have determined that the prosecutor had the
requisite intent to prevent an acquittal. He further
claims that, even if the trial court had applied the proper
legal standard, the Connecticut constitution bars a new
trial because it offers broader double jeopardy protections than its federal counterpart and that this court
should accordingly overrule State v. Michael J., 274
Conn. 321, 360–61,
875 A.2d 510 (2005), which held otherwise.
In response, the state first asserts that this court
should dispose of the defendant’s claim in its entirety
by overruling Colton because the federal protection
against double jeopardy should not bar a new trial
absent the exception expressed in Oregon v. Kennedy,
456 U.S. 667, 676,
102 S. Ct. 2083,
72 L. Ed. 2d 416
(1982), or, if the conviction was reversed on the ground
of insufficient evidence. The state next argues that, even
if we do not overrule Colton, the defendant nevertheless
waived his claim because, rather than moving for a
mistrial after the prosecutorial impropriety took place,
he moved for a new trial but failed on remand to present
supplemental evidence demonstrating the prosecutor’s
Page 8 CONNECTICUT LAW JOURNAL 0, 0
10 ,0 0 Conn. 1
State v. Patrick M.
intent. Finally, the state argues that, even if the defendant’s claim was not waived, it fails on the merits
because the trial court reasonably concluded that the
prosecutor did not have the necessary intent to bar
a retrial.
For the following reasons, we decline the parties’
invitation to overrule our precedent and conclude that
the defendant has failed, pursuant to Colton, to demonstrate that the prosecutor had engaged in impropriety
with the intent to prevent an acquittal that the prosecutor believed to be imminent absent the impropriety.
I
The double jeopardy clause of the fifth amendment
to the United States constitution bars a retrial if the
prosecutor engaged in impropriety at trial with the
intent to prevent an acquittal that he believed was imminent absent the impropriety. See State v. Colton, supra,234 Conn. 696; see also U.S. Const., amend. V. This protection stems from the United States Supreme Court’s decision in Oregon v.
Kennedy, supra,456 U.S. 667, which
held that ‘‘[o]nly where the governmental conduct in
question is intended to ‘goad’ the defendant into moving
for a mistrial may a defendant raise the bar of double
jeopardy to a second trial after having succeeded in
aborting the first on his own motion.’’ Id., 676. In United
States v. Wallach, 979 F.2d 912 (2d Cir. 1992), cert.
denied, 508 U.S. 939,
113 S. Ct. 2414,
124 L. Ed. 2d
637 (1993), the United States Court of Appeals for the
Second Circuit reasoned that this rule applied to the
circumstances we would later recognize in Colton, considering that ‘‘[t]he prosecutor who acts with the intention of goading the defendant into making a mistrial
motion presumably does so because he believes that
completion of the trial will likely result in an acquittal.
That aspect of the Kennedy rationale suggests precluding retrial [when] a prosecutor apprehends an acquittal
0, 0 CONNECTICUT LAW JOURNAL Page 9
0 Conn. 1 ,0 11
State v. Patrick M.
and, instead of provoking a mistrial, avoids the acquittal
by an act of deliberate [impropriety].’’3 Id., 916. In Colton, this court adopted Wallach’s logic, noting in particular its agreement with ‘‘[t]he reasoning for expanding
the Kennedy doctrine in this limited circumstance . . .
in which some of the evidence that the defendant
intended to use to demonstrate prosecutorial [impropriety] was not part of the record on appeal from the
previous trial.’’ State v. Colton, supra, 696.
Before turning to the merits of the defendant’s double
jeopardy claim, we must first address several preliminary issues, including the parties’ requests to overrule
our precedent, the state’s contention that the defendant
has waived his claim, and the applicable standard of
review.
A
The state asks that we overrule Colton, and the defendant asks that we overrule Michael J. We reject both
requests. We first address the state’s argument that we
3
The state discounts language in Wallach as dictum and quotes United
States v. Brown, 994 F.3d 147 (3d Cir. 2021), stating that ‘‘[e]very [federal]
circuit . . . has declined to expand the Kennedy exception beyond the
mistrial context.’’ Id., 155. Although the state is right that the principle we
adopted in Colton derived from dictum, the Second Circuit has upheld that
dictum; see, e.g., United States v. Pavloyianis, 996 F.2d 1467, 1473–74 (2d
Cir. 1993); and has consistently reiterated the rule in subsequent decisions.
See, e.g., United States v. Walls, Docket No. 23-6019-cr, 2023 WL 3807407,
*2 (2d Cir. June 5, 2023); United States v. Ruiz, Docket Nos. 95-1677(L),
96-1046 and 96-1161, 1996 WL 612461, *4 (2d Cir. October 24, 1996) (decision
without published opinion, 104 F.3d 351), cert. denied,
519 U.S. 1155,
117
S. Ct. 1095,
137 L. Ed. 2d 227 (1997), and cert. denied sub nom. United
States v. Torres, 522 U.S. 878,
118 S. Ct. 201,
139 L. Ed. 2d 138 (1997); United
States v. Millan, 17 F.3d 14, 18–19 (2d Cir. 1994). Further, it is inaccurate
to state that every federal circuit has disregarded Wallach, considering that
multiple circuits have not addressed the question, and at least one has
expressed agreement with the logic of Wallach. See United States v. Gary,
74 F.3d 304, 315 (1st Cir.) (overruled in part on other grounds by Johnson
v. United States, 576 U.S. 591,
135 S. Ct. 2551,
192 L. Ed. 2d 569 (2015)),
cert. denied, 518 U.S. 1026,
116 S. Ct. 2567,
135 L. Ed. 2d 1084 (1996).
Page 10 CONNECTICUT LAW JOURNAL 0, 0
12 ,0 0 Conn. 1
State v. Patrick M.
should overturn Colton altogether because it is inconsistent with federal double jeopardy jurisprudence. The
state argues that the protection against double jeopardy
should not bar a retrial unless the defendant’s conviction is reversed on the ground of insufficient evidence,
or, if his request for a mistrial is granted in response
to the prosecutor’s ‘‘ ‘goad[ing]’ ’’ the defendant to move
for a mistrial based on Oregon v. Kennedy, supra,456
U.S. 676. The state argues that the defendant is not
entitled to relief because neither predicate occurred in
the present case.
In Colton, however, we embraced extending Kennedy
‘‘to bar a new trial, even in the absence of a mistrial
. . . if the prosecutor in the first trial engaged in [impropriety] with the intent to prevent an acquittal that [he]
believed at the time was likely to occur in the absence of
his [impropriety].’’ (Internal quotation marks omitted.)
State v. Colton, supra,234 Conn. 696. Our embrace of
Wallach is consistent with Kennedy’s reasoning, considering that the type of prosecutorial intent that we
described in Colton threatens exactly what the double
jeopardy clause protects: ‘‘that the defendant retain primary control over the course to be followed in the
event of such [impropriety].’’ (Internal quotation marks
omitted.) Oregon v. Kennedy, supra,456 U.S. 676. In
other words, if the prosecutor engages in impropriety
with the intent to prevent an acquittal that he believes
to be imminent absent the impropriety, he takes the
reins away from the defendant in the manner that Kennedy bars, regardless of whether the defendant has
previously moved for a mistrial or succeeded on a mistrial motion.
This is not the first time the state has asked us to
reject this extension of Kennedy. In Colton itself, the
state asked us to limit Kennedy claims to those situations in which a defendant has successfully moved for
a mistrial because it ‘‘allows the trial court, which is in
0, 0 CONNECTICUT LAW JOURNAL Page 11
0 Conn. 1 ,0 13
State v. Patrick M.
the best position to assess all the factors, to make a
finding as to whether the prosecutor acted with the
intent to ‘goad’ the defendant into moving for a mistrial.’’ State v. Colton, Conn. Supreme Court Records &
Briefs, May Term, 1995, Pt. 2, State’s Brief p. 27. The
state next asked us in Butler to overrule Colton,
expounding on the ‘‘critical’’ distinction between mistrials and completed trials because, in its opinion, only a
mistrial subverts ‘‘a defendant’s valued right to have
his trial completed by a particular tribunal.’’ (Internal
quotation marks omitted.) State v. Butler, Conn. Supreme
Court Records & Briefs, September Term, 2002, Pt. 11,
State’s Brief p. 22. We rejected the state’s argument in
Colton and declined to address it in Butler because the
defendant in that case could not prevail on the merits
of his claim. See State v. Butler, supra,262 Conn. 173
n.5. Although, as we will explain, the defendant in the
present case also cannot prevail on the merits of his
claim, we believe that, at this juncture, it is sensible to
address substantively the state’s request that we overrule Colton.
The state’s briefs in Butler and in the present case
capture precisely why we have adhered to our decision
in Colton. In Butler, the state noted that ‘‘the Kennedy
rule is designed to hinder a prosecutor’s ability to scuttle a case that he or she knows is moving toward an
acquittal and thus avoid decision by the trier of fact.’’
State v. Butler, Conn. Supreme Court Records & Briefs,
supra, State’s Brief p. 22. In the present case, the state
notes that, ‘‘under Kennedy, it is the prosecutor’s intent
to weaponize the defendant’s double jeopardy protection that bars a retrial . . . .’’ These briefs accurately
articulate the principle that prohibits a new trial but
misapprehend the natural conclusion of that principle:
it is that intent of the prosecutor, not the defendant’s
response to the impropriety, that bars a new trial. These
cases demonstrate that this court has sought to avoid
Page 12 CONNECTICUT LAW JOURNAL 0, 0
14 ,0 0 Conn. 1
State v. Patrick M.
different outcomes based on the precise manner in
which a defendant responds to a prosecutor’s impropriety because allowing for such outcomes would dilute
the double jeopardy protection that the federal constitution provides and, in our view, would not sufficiently
deter prosecutorial impropriety. For this reason, courts
in several other states do not require that the defendant
successfully move for a mistrial after a prosecutor commits impropriety with the specific intent to goad a
defendant into doing so. See, e.g., State v. Marti, 147
N.H. 168, 172,
784 A.2d 1193 (2001); see also State v.
D’Auria, 229 Ga. App. 34, 35,
492 S.E.2d 918 (1997),
rev’d on other grounds, 270 Ga. 499,
512 S.E.2d 266
(1999); State v. Rogan, 91 Haw. 405, 420, 423,
984 P.2d
1231 (1999); State v. Chase,
754 A.2d 961, 963–64 (Me.
2000); Commonwealth v. Smith, 532 Pa. 177, 186,
615
A.2d 321 (1992); State v. Lettice,
221 Wis. 2d 69, 89,
585
N.W.2d 171 (App. 1998). Because Colton is consistent
with Kennedy, we decline to overrule Colton.4
We next turn to the defendant’s request that we overrule State v. Michael J., supra, 274 Conn. 321, in which
this court held that the Connecticut constitution does
not provide broader double jeopardy protections than
those articulated in Kennedy and Wallach. See id., 349.
The defendant asks that we overturn Michael J. because
‘‘the Connecticut constitution should protect criminal
defendants from facing a retrial after flagrant [impropriety] deprived them of a meaningful chance of an acquittal and where the unfairness is not adequately remedied
by the provision of a new criminal trial to the defendant.’’ We decline this invitation and reassert our confi-
4
Although we stand by the rationale of our decision in Colton, we also
decline to revisit that precedent based on the doctrine of stare decisis,
which ‘‘counsels that a court should not overrule its earlier decisions unless
the most cogent reasons and inescapable logic require it.’’ (Internal quotation
marks omitted.) State v. Adam P., 351 Conn. 213, 223,
330 A.3d 73 (2025).
The state has not persuaded us that cogent reasons or inescapable logic
exists that would compel us to overrule Colton.
0, 0 CONNECTICUT LAW JOURNAL Page 13
0 Conn. 1 ,0 15
State v. Patrick M.
dence in the thorough Geisler analysis; see State v.
Geisler, 222 Conn. 672, 684–86,
610 A.2d 1225 (1992);
that we undertook in Michael J. We began that analysis
by considering that ‘‘[t]he constitution of Connecticut
does not contain an express prohibition against double
jeopardy . . . [and] a historical review reveals that the
exclusion of a textual ban on double jeopardy from the
constitution of Connecticut was . . . the product of a
conscious decision by our constitutional forebears . . .
[who] were concerned that the addition of such a clause
might be perceived as a change in Connecticut law . . .
which historically afforded defendants far less protection against double jeopardy than the federal constitution.’’ (Citations omitted; footnote omitted.) State v.
Michael J., supra, 350–51. We noted in Michael J. that,
under Connecticut common law dating to at least 1894,
‘‘jeopardy for the defendant continued until a result was
attained that was free from error, even if that required
multiple trials . . . in direct contrast to federal constitutional jurisprudence’’ from the same time period. Id.,
352; see State v. Lee, 65 Conn. 265, 272,
30 A. 1110
(1894); see also State v. Palko, 122 Conn. 529, 541–42,
191 A. 320 (adhering to Lee), aff’d,
302 U.S. 319,
58 S.
Ct. 149,
82 L. Ed. 288 (1937). Contra Kepner v. United
States, 195 U.S. 100, 129, 133,
24 S. Ct. 797,
49 L. Ed.
114 (1904). We also relied on the fact that neither this
court nor the Appellate Court had ever ‘‘held that the
double jeopardy guarantees implied in the state constitution exceed those embodied in the federal constitution’’; State v. Michael J., supra, 354; and that ‘‘the
United States Supreme Court has never repudiated the
narrow test adopted in Oregon v. Kennedy, supra,456
U.S. 679 . . . .’’ State v. Michael J., supra, 355; see, e.g.,
State v. Anderson, 295 Conn. 1, 8,
988 A.2d 276 (2010);
State v. Laws, 37 Conn. App. 276, 292–95,
655 A.2d 1131,
cert. denied, 234 Conn. 907,
659 A.2d 1210 (1995). We
noted, too, that, although some state courts have
Page 14 CONNECTICUT LAW JOURNAL 0, 0
16 ,0 0 Conn. 1
State v. Patrick M.
adopted a broader approach, they did so ‘‘on the basis
of their construction of specific double jeopardy provisions embodied in their respective state constitutions.’’
State v. Michael J., supra, 360. Finally, we remarked
that, ‘‘even if judges were inclined to dismiss the charges
on the ground of double jeopardy in those jurisdictions
that have adopted broader tests, society’s interest in
enforcing its criminal laws would be compromised in
those cases in which the prosecutorial [impropriety]
was not sufficiently egregious to implicate truly the
defendant’s double jeopardy rights.’’ Id.
We acknowledge that there are factual differences
between the present case and Michael J., but those
factual differences do not alter our consideration of
the protection against double jeopardy afforded by the
Connecticut constitution. Put differently, the fact that
‘‘the issue in Michael J. was the violation of an order
on a motion in limine, while the issue here is a violation
of a core constitutional principle,’’ does not alter the
outcome of the Geisler analysis this court undertook
in Michael J. to ascertain the scope of protection against
double jeopardy that the Connecticut constitution provides. See footnote 6 of this opinion and accompanying
text. Although the defendant is correct that ‘‘our jurisprudence has been altered considerably’’ with respect
to certain constitutional protections not expressly laid
out in the Connecticut constitution, such as the abolition of the death penalty; see State v. Santiago, 318
Conn. 1, 85–86,
122 A.3d 1 (2015); the reasoning underlying that changed jurisprudence does not transfer to the
present circumstance. For example, in Santiago, this
court reviewed ‘‘five objective indicia that have been
deemed relevant under both the federal and state constitutions’’ and the possible ‘‘legitimate penological purpose[s]’’ the death penalty might advance, holding that
none supported maintaining the death penalty. Id., 85,
87. But we have already reviewed the relevant consider-
0, 0 CONNECTICUT LAW JOURNAL Page 15
0 Conn. 1 ,0 17
State v. Patrick M.
ations in Michael J. that would support an altered jurisprudential outlook, namely, the ‘‘contemporary
understandings of applicable economic and sociological norms,’’ and have concluded otherwise. (Internal
quotation marks omitted.) State v. Michael J., supra,
274 Conn. 350. We therefore also decline to overrule
our decision in Michael J. because we are once again
not persuaded that cogent reasons or inescapable logic
exists that would compel us to do so. See, e.g., State
v. Adam P., 351 Conn. 213, 223,
330 A.3d 73 (2025).
B
Having denied the parties’ respective requests that
we overrule our precedents, we now turn to the state’s
argument that the defendant waived his double jeopardy claim by failing to move for a mistrial despite
being aware of the prosecutor’s impropriety.5 The state
contends that a valid Colton claim arises only in two
circumstances, neither of which fits the present case:
(1) when the defendant, aware of the prosecutor’s intent
regarding his impropriety at trial, moves for a mistrial,
or (2) when the defendant, unaware of the prosecutor’s
intent regarding his impropriety at trial, and after a
reversal of the conviction on appeal because of the
prosecutorial impropriety, moves to dismiss a subsequent prosecution and offers evidence in support of a
5
Although the state’s argument that we should overrule Colton appears
similar to its argument that the defendant waived his claim under Colton
because both that case and the present case involve a defendant’s failure
to move for a mistrial, they are distinct situations and are worth addressing
distinctly. The state’s request that we overturn Colton would require a defendant not only to move for a mistrial but to prevail on the motion to bar a
new trial, whereas the state’s contention that the defendant waived his
Colton claim would not require that same success. Rather, the state would
require that, for a defendant to avoid waiving his Colton claim, he need only
move for a mistrial or, on remand after a reversal of the judgment based
on the challenged conduct, move to dismiss a subsequent prosecution if
additional evidence from outside the prior trial record is necessary to resolve
the defendant’s claim.
Page 16 CONNECTICUT LAW JOURNAL 0, 0
18 ,0 0 Conn. 1
State v. Patrick M.
finding of that intent. The state asserts that, absent
these two circumstances, the defendant waives his
claim under Colton. In support, the state relies on a
sentence in a footnote from Colton that reads: ‘‘Indeed,
if a claim of prosecutorial [impropriety] is derived solely
from the record, the defendant may waive his claim by
his failure to raise it as a motion for [a] mistrial.’’6
(Emphasis added.) State v. Colton, supra,234 Conn.
699 n.16. We disagree with the state that the defendant
waived his Colton claim.
We note first that we disagree with the defendant
that the state has itself waived its waiver argument
because, in its response to the defendant’s motion to
dismiss in the trial court, it ‘‘focused mainly on an argument that the [rules of practice] did not allow for the
defendant’s motion.’’ The defendant contends that the
state ‘‘should not be allowed to . . . [ambush] both the
trial court and the defendant’’ after failing to raise its
waiver argument when the trial court heard the parties’
arguments regarding the defendant’s Colton claim. But
6
In support of this sentence in footnote 16 in Colton, this court quoted
State v. Tyler-Barcomb, 197 Conn. 666,
500 A.2d 1324 (1985), cert. denied,
475 U.S. 1109,
106 S. Ct. 1518,
89 L. Ed. 2d 916 (1986), in which the court
stated in relevant part: ‘‘[W]here counsel does not request a curative charge
or seek a mistrial on the basis of alleged prosecutorial [impropriety], we
have presumed that defense counsel did not view the remarks as so prejudicial that his client’s right to a fair trial was seriously jeopardized. . . . As
a result, we find that the defendants have waived their right to raise on appeal
this claim of prosecutorial abuse.’’ (Citations omitted; footnote omitted.)
Id., 673–74. Since Tyler–Barcomb, but before Colton, we held in State v.
Williams, 204 Conn. 523, 537,
529 A.2d 653 (1987), that a defendant’s claim
that a prosecutorial impropriety violated his constitutional right to a fair
trial can be raised for the first time on appeal, to the extent that the record
supports it. See, e.g., State v. Stevenson, 269 Conn. 563, 573,
849 A.2d 626
(2004). We have not been asked in the present case to decide whether
footnote 16 remains, or ever was, an accurate statement of our law. Nor
do we need to determine whether a defendant who successfully raises a
prosecutorial impropriety claim for the first time on appeal is precluded
from bringing a double jeopardy claim in a subsequent prosecution because
that is not the factual circumstance with which we are presented.
0, 0 CONNECTICUT LAW JOURNAL Page 17
0 Conn. 1 ,0 19
State v. Patrick M.
the state’s waiver argument hardly constitutes an
ambush. It is premised on the rationale in Colton, the
central case at issue in this appeal. Further, as the
defendant concedes, ‘‘[t]he prosecutor during the motion
hearing did discuss the significance of this court not
dismissing the charges against the defendant,’’ which
underlies the state’s argument that the defendant waived
his Colton claim by failing to present new evidence. We
will not leave the state’s waiver argument unaddressed
because the prosecutor failed to specifically use the term
‘‘waiver.’’
Even so, we reject the state’s argument that the defendant has waived his double jeopardy claim because, in
the present case, defense counsel undeniably believed
that his client’s right to a fair trial was ‘‘seriously jeopardized’’ in the manner this court contemplated in Colton. (Internal quotation marks omitted.) State v. Colton,
supra,234 Conn. 699 n.16. Specifically, when defense
counsel moved for a new trial after the verdict, he
argued ‘‘that the prosecutor had violated the defendant’s constitutional rights pursuant to Doyle v. Ohio,
supra,426 U.S. 610 . . . .’’ State v. Patrick M., supra,
344 Conn. 581. The fact that defense counsel moved
for a new trial, rather than a mistrial, does not change
the fact that his reason for doing so was because of a
claimed constitutional violation by the prosecutor, and
we will therefore afford the defendant the same opportunity for review of his Colton claim.
C
The final preliminary matter we must address before
turning to the merits of this interlocutory appeal
involves our standard of review of the trial court’s denial
of the defendant’s double jeopardy claim. See, e.g., State
v. Cody M., 337 Conn. 92, 99,
259 A.3d 576 (2020) (‘‘ ‘[a]
defendant’s double jeopardy claim presents a question
of law over which our review is plenary’ ’’). It is appro-
Page 18 CONNECTICUT LAW JOURNAL 0, 0
20 ,0 0 Conn. 1
State v. Patrick M.
priate to exercise plenary review rather than review
the court’s determination under the clearly erroneous
standard because, critically, the trial court in the present case did not make any factual findings that would
be subject to a more deferential standard of review.
See, e.g., State v. Lewis, 273 Conn. 509, 516–17,
871
A.2d 986 (2005) (‘‘[a]lthough we generally review a trial
court’s factual findings under the ‘clearly erroneous’
standard, when a trial court makes a decision based on
pleadings and other documents, rather than on the live
testimony of witnesses, we review its conclusions as
questions of law’’). Instead, years after the defendant’s
trial, a trial judge other than the judge who presided
over the defendant’s trial reviewed the trial transcripts
and made the very same type of legal assessment that
we now undertake in this opinion.
Although the parties agree on the applicable standard
of review, we believe it is prudent to explain why plenary review is appropriate in this case because, in past
decisions involving interlocutory challenges, both this
court and the Appellate Court have applied an improper
standard of review, inaccurately referring to the trial
court’s determination, based on an undisputed record,
that the prosecutor’s impropriety was intended to cause
a mistrial as a factual finding rather than a legal determination. See, e.g., State v. Butler, supra,262 Conn. 173;
State v. Payne, 96 Conn. App. 488, 493–94,
901 A.2d 59,
cert. denied, 280 Conn. 913,
908 A.2d 541 (2006). For
example, in Butler, the parties did not present new
evidence, such as live testimony, before the trial court,
and the court therefore made no factual findings to
determine the prosecutor’s intent. See State v. Butler,
supra, 174. As in the present case, the trial court’s decision in Butler was based on proceedings that had
occurred before a different judge several years prior.
See id. Although it does not otherwise change the precedential value of Butler, considering that the trial court
0, 0 CONNECTICUT LAW JOURNAL Page 19
0 Conn. 1 ,0 21
State v. Patrick M.
in that case applied the correct legal standard; see id.;
we clarify that we should have undertaken plenary
review of that determination, rather than have applied
the clearly erroneous standard. See id., 177; see also
Jones v. State, 328 Conn. 84, 101,
177 A.3d 534 (2018)
(‘‘[W]hen the facts are undisputed, determining the legal
import of those facts presents a question of law subject
to de novo review. . . . This is so even in the context
of fact laden disputes ordinarily subject to a trial court’s
discretion.’’ (Citations omitted.)).
Unless the trial court conducts an additional hearing
in which a party presents new evidence, in the form of
testimony or other supporting material, from which the
trial court then makes factual findings, its resulting
decision is a legal one. This is true even if the trial
court ruling on a defendant’s double jeopardy claim
also presided over that defendant’s trial because the
operative question is whether the double jeopardy claim
involves supplemental fact-finding. In fact, in contrast
to the trial court’s decision in Butler and the present
case, the trial court in Colton based its conclusion that
the state was not barred from pursuing another prosecution of the defendant on the ‘‘extensive’’ double jeopardy record developed at a hearing on remand,
including the presentation of live testimony. State v.
Colton, Docket No. CR-6289646, 1998 WL 420705, *3
(Conn. Super. July 17, 1998). Although the defendant
in Colton did not appeal from that ruling, if he had,
the clearly erroneous standard of review would have
applied to the court’s factual findings.
II
Turning to the merits of the present case, we must
determine whether the trial court correctly concluded
that the prosecutor had not engaged in impropriety with
the intent to provoke a mistrial to prevent an acquittal
that he believed was likely to occur absent that impro-
Page 20 CONNECTICUT LAW JOURNAL 0, 0
22 ,0 0 Conn. 1
State v. Patrick M.
priety. See, e.g., State v. Colton, supra,234 Conn. 696.
In Colton, we did not specify the precise circumstances
in which a prosecutor engages in impropriety with the
intent sufficient to bar a retrial because of the necessarily case-specific nature of these circumstances. Although
we emphasize that a successful Colton claim still must
depend on the unique facts of a given case, the ensuing
discussion will, first, illuminate the outer limits of what
constitutes a prosecutor’s committing an impropriety
with the intent to prevent what he perceives to be an
imminent acquittal, and, second, clarify that, given the
strict standard that a defendant must meet to demonstrate that intent, a defendant will, and should be able
to, meet that standard only in rare circumstances.
Our case law following Colton is instructive on the
circumstances that do not satisfy Colton’s intent standard. For example, in State v. Butler, supra,262 Conn.
179, we upheld the trial court’s determination that the
prosecutor in that case did not commit impropriety
with the intent that we described in Colton. The prosecutor had committed impropriety in that case when
he stated in closing argument that ‘‘[t]he other thing
[defense counsel] said to you . . . that [the witness for
the state] has lied to other juries. Well, let me tell you,
ladies and gentlemen, I wish I could tell you what other
juries decided, but I am not allowed to.’’ (Internal quotation marks omitted.) Id., 171. The Appellate Court
reversed the defendant’s conviction because of this
impropriety and remanded the case for a new trial. See
id., 172. On remand, the defendant moved to dismiss
the charges on double jeopardy grounds, which the trial
court denied. Id. In upholding that denial on appeal,
we noted with approval that the trial court had articulated an alternative motivation that the prosecutor
might have had in making the improper remarks,
namely, to respond to defense counsel’s comments
regarding the state’s witness. See id., 178–79.
0, 0 CONNECTICUT LAW JOURNAL Page 21
0 Conn. 1 ,0 23
State v. Patrick M.
In Butler, and in every appellate case in our state
since Colton, a prosecutor’s impropriety by itself was
not enough for a trial court to infer that the prosecutor
had acted with the necessary intent to bar a new trial.
See, e.g., State v. Michael J., supra, 274 Conn. 328–31,
342 (trial court considered manner of prosecutor’s sensitive questions and victim’s demeanor when responding
in determining that prosecutor lacked intent to goad
defendant into moving for mistrial after eliciting testimony from child sexual abuse victim about incidents
of abuse that were not included in information or disclosed prior to trial); State v. Ross, 251 Conn. 579, 591,
742 A.2d 312 (1999) (claim that prosecutor engaged
in impropriety thus barring further prosecution failed
when defendant did not prove underlying violation of
Brady v. Maryland, 373 U.S. 83, 87,
83 S. Ct. 1194,
10
L. Ed. 2d 215 (1963)); State v.
Payne, supra, 96 Conn.
App. 492–94 (trial court considered ‘‘exceptionally strong
case against the defendant’’ in determining that prosecutor did not have intent to prevent acquittal he believed
at time was likely to occur in absence of impropriety
because he would not have believed acquittal was
imminent).
A review by this court has found minimal case law
nationally, and none from our state, that demonstrates
the type of circumstances that would bar a new trial
based on Colton. This absence is logical, considering the
difficulty of prevailing on a prosecutorial impropriety
claim resulting in a reversal of the judgment in the
first place and the high standard that we articulated in
Colton. See State v. Colton, supra,234 Conn. 700. The
Court of Appeals of Wisconsin, however, encountered
such a situation in State v. Lettice, supra,221 Wis. 2d
69. That court inferred that a prosecutor had engaged
in impropriety with the intent to prevent an acquittal
that he believed to be imminent absent that impropriety.
See id., 90. In that case, after the prosecutor failed
Page 22 CONNECTICUT LAW JOURNAL 0, 0
24 ,0 0 Conn. 1
State v. Patrick M.
in his attempts to postpone the trial, he successfully
brought false criminal charges against the defendant’s
attorney the night before trial. Id., 89–90. The court
noted that the sum of the prosecutor’s behavior with
respect to the false criminal charges had demonstrated
his intent to prevent an acquittal that he believed was
imminent, observing that ‘‘[t]he egregious nature of [the
prosecutor’s] conduct was compounded by his speedy
[posttrial] efforts to have the criminal charges dismissed against the defense attorney, which also support
the conclusion that [the prosecutor’s] purpose in filing
the criminal charges was to avoid an acquittal.’’ Id., 90.
Although we do not mean to suggest that Lettice is
the floor beneath which a Colton claim could never
succeed, the facts in Lettice illustrate the rare occurrence when a court might conclude, objectively and
based on the totality of the evidence before it, that
a prosecutor’s impropriety was specifically aimed at
preventing what the prosecutor perceived to be an
imminent acquittal. The inferences that the court in
Lettice drew on the path to its conclusion do not require
logical leaps to understand. On the contrary, the prosecutor’s actions, on and off the record, added up to
establish the particular intent that we described in
Colton.
The circumstances described in Oregon v. Kennedy,
supra,456 U.S. 667, that would bar a retrial—a prosecutor’s ‘‘ ‘goad[ing]’ ’’ defense counsel into moving for a
mistrial—are also instructive, given that we adopted
Wallach’s logic as a natural extension of Kennedy. See
State v. Colton, supra,234 Conn. 692, 696. For example,
in People v. Dawson, 431 Mich. 234,
427 N.W.2d 886
(1988), the Michigan Supreme Court held that the prosecutor had goaded defense counsel into moving for a
mistrial by asking the final rebuttal witness, ‘‘[c]an you
tell us how many times [the defendant] offered you a
blow job?’’ which the court noted that the prosecutor
0, 0 CONNECTICUT LAW JOURNAL Page 23
0 Conn. 1 ,0 25
State v. Patrick M.
‘‘clearly knew was improper.’’ (Internal quotation marks
omitted.) Id., 259. The court explained that it inferred
the prosecutor’s intent based on the declining strength
of the state’s case, his attempt to stall the proceedings
in ‘‘hop[es] that the court would declare a recess and
thereby enable [him] to marshal his forces over the
weekend,’’ and his lack of surprise or argument when
the defendant moved for a mistrial. See id. When asked
by the trial judge whether he had any response to the
motion, the prosecutor replied, ‘‘[n]ope.’’ (Internal quotation marks omitted.) Id. As in Lettice, the reasonable
inferences the Michigan Supreme Court drew in Dawson regarding the prosecutor’s intent align with those
described in Colton. Those inferences also notably
arose from circumstances other than merely the impropriety itself—the declining strength of the state’s case
and the prosecutor’s lack of advocacy in response to
the motion for a mistrial—similar to the case law of
our state that has consistently held that impropriety on
its own is insufficient to establish a successful Colton claim.
Although we agree with the defendant that surviving
a sufficiency of the evidence challenge does not preclude a determination that a prosecutor intended to
prevent an acquittal, it is one piece of information that
courts can assess when considering whether the prosecutor committed an impropriety with the intent to prevent an acquittal that he believed was imminent. If the
evidence at trial strongly favored the defendant, that
is one consideration that could lead a trial court to
determine that a prosecutor’s improper remarks were
intended to prevent an acquittal. On the other hand,
when the evidence is more equivocal, as it often is, that
implication does not carry the same weight. Or, if the
evidence was equivocal, but additional evidence on or
off the record suggests a prosecutor’s improper motive,
such as that described in State v. Lettice, supra, 221
Page 24 CONNECTICUT LAW JOURNAL 0, 0
26 ,0 0 Conn. 1
State v. Patrick M.
Wis. 2d 89–90, or State v. Dawson, supra,431 Mich.
259, sufficient information might exist for a trial court
to infer the necessary intent on the part of the prosecutor. The main point, however, is that the argument that
a defendant presents to a trial court to demonstrate a
prosecutor’s specific intent to prevent an acquittal must
not arise from strict conjecture. Instead, it must derive,
as it did in Lettice and Dawson, from reasonable inferences that flow from the context of the relevant proceedings.
Considering this precedent, we conclude that the trial
court in the present case correctly determined that the
defendant had failed to establish that the prosecutor
intended to prevent an acquittal that the prosecutor
perceived to be imminent. On remand, the defendant
presented no additional evidence related to the prosecutor’s intent, leaving the trial court to make its determination based on the trial transcripts and this court’s
previous decision, including our conclusion that the
evidence at the defendant’s trial was sufficient for a
conviction. See State v. Patrick M., supra, 344 Conn.
569, 578. We have undertaken the same review and have
arrived at the same conclusion as the trial court.7
The state’s case, although not ironclad, was hardly
on the downward slope that the Michigan Supreme
Court described in State v. Dawson, supra,431 Mich.
259. The defendant’s suggestion that the prosecutor
had committed impropriety with the intent discussed
in Colton because he was so shaken by the strength of
the defendant’s case is therefore unavailing. Although
perhaps persuasive to the jury in some regards, the
defendant’s testimony did not shift the case in the dra-
7
It is worth noting that our failure to specify whether the prosecutor in
State v. Patrick M., supra, 344 Conn. 565, had the intentional mindset discussed in Colton was not an indication that this court believed that the
prosecutor did not have that intent, as the state suggests. Rather, it was
because the issue was not before this court.
0, 0 CONNECTICUT LAW JOURNAL Page 25
0 Conn. 1 ,0 27
State v. Patrick M.
matic manner he suggests. During cross-examination,
the prosecutor highlighted various holes in the defendant’s account of events, diminishing the likelihood that
the prosecutor believed that the jury would accept the
entirety of the defendant’s testimony as indisputable.
For example, he questioned why the defendant, who
had said that he fled to New York after he came home
and saw his wife dead because he believed his home had
been burglarized, had never previously fled his home
in the same manner, although it had been burglarized
on multiple occasions in the past. The prosecutor also
pointed out that the defendant in the past had committed several other felonies—including one committed
just fifteen days before the incident in the present
case—but that none of those felonies had led him to
flee to another state or to take his family with him while
doing so. The prosecutor similarly asked the defendant
to explain why Thomas had instructed him to take the
license plates off the car he was driving to New York,
to which the defendant responded that he did not know.
The defendant also testified that he did not see or speak
with Watson earlier on the day of the victim’s death,
although Watson previously had testified to the opposite.
During closing arguments, the prosecutor asked the
jury to consider the defendant’s motive to kill the victim
and to pay close attention to the evidence of that motive,
as well as evidence discrediting the defendant’s account
of events. Specifically, he argued that ‘‘[t]his isn’t a case
about the police. This is a case about this defendant
[being] upset that his wife preferred a woman to him,
upset that the marriage was falling apart, and you’re
going to see that in . . . the text messages that he sent.
. . . He’s the person who had the motive; he’s the person who had access to the house. And, if you’re going
to believe that this was some sort of robbery to get
money and drugs, look at the photos that are in evi-
Page 26 CONNECTICUT LAW JOURNAL 0, 0
28 ,0 0 Conn. 1
State v. Patrick M.
dence. They left an awful lot of drugs, and they left a
pretty large quantity of money.’’
This cross-examination and closing argument, even
alongside the improper remarks the prosecutor had
made, do not on their face paint the picture of a prosecutor who is purposely engaging in impropriety to goad
the defendant into moving for a mistrial because the
prosecutor believed that, absent that extreme step, the
jury would find the defendant not guilty. Instead,
assessed objectively, they depict a prosecutor’s
attempting to secure a conviction of the defendant,
precisely the sort of motivation that we held would
not prevent a retrial of a defendant based on double
jeopardy principles in State v. Butler, supra,262 Conn.
174. The fact that part of that attempt to secure a conviction included repeated, improper suggestions that the
defendant had a duty to assist the police investigation
rather than exercise his Miranda right to remain silent,
impropriety that was prejudicial enough for this court
to reverse the defendant’s conviction, does not suffice
to establish the prosecutor’s intent to prevent an acquittal that he believed was imminent without the impropriety. If we were to agree with the defendant that this
prosecutor’s impropriety sufficed to support a finding
of the intent we contemplated in Colton, we would be
making an unwarranted and speculative leap of logic
that would expand the Kennedy exception far beyond
the bounds described in Wallach—hardly a reasonable
inference based on the evidence before us. We reject
the defendant’s invitation to take that leap.
When we adopted the logic of Wallach in Colton, we
expressly stated that a successful claim of this sort
‘‘would arise only rarely.’’ State v. Colton, supra,234
Conn. 699. Because we will not, and trial courts should
not, presume a prosecutor’s ill intentions without sufficient supporting evidence, we still believe that to be
true. There is no question that the record in the present
0, 0 CONNECTICUT LAW JOURNAL Page 27
0 Conn. 1 ,0 29
State v. Patrick M.
case does not contain sufficient evidence to bar a
new trial.
The trial court’s denial of the defendant’s motion to
dismiss is affirmed.
In this opinion the other justices concurred.
