# State v. Ellis > Supreme Court of Connecticut · September 10, 1985 · 197 Conn. 436 URL: https://www.frixlaw.com/law-library/cases/7839389 ## Case - **Full name:** State of Connecticut v. Brian Ellis State of Connecticut v. Wilmer Paradise, Jr. State of Connecticut v. David Worthington - **Court:** Supreme Court of Connecticut - **Decided:** September 10, 1985 - **Citations:** 197 Conn. 436; 497 A.2d 974; 1985 Conn. LEXIS 891 - **Precedential status:** Published - **Opinion:** Concurring in part by Peters - **Judges:** Dannehy, Peters - **Cited by:** 191 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by Hansted v. Safeco Insurance Co. of America, 19 Conn. App. 515 (1989). - Negative treatments: 2 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7839389 ## How later opinions describe it (automated extraction) - concluding that crimes that must or may be punished by death are excluded by necessary implication from statute of limitations ## Opinion text Peters, C. J., dissenting in part. I agree with the majority opinion in its disposition of the question reserved for advice, namely that the prosecution of the defendant Worthington is not barred by the statute of limitations which was in effect in 1974, General Statutes § 54-193. I disagree, however, with the majority opinion’s conclusion that our decision in State v. Paradise, 189 Conn. 346 , 456 A.2d 305 (1983) (Paradise I), is no obstacle to the prosecution of the defendants Paradise and Ellis for capital felony. Before I come to the grounds of my disagreement with the majority opinion, it is useful, I believe, to make clear the extent to which we all concur about the issues raised by the decision in Paradise I. Our concurrence covers the following significant points: (1) the new charges of capital felony against the defendants Paradise and Ellis arise out of the same incident and refer to the same victim as the charges involved in Paradise I, where these defendants were held to answer for murder, felony murder and kidnapping; (2) the doctrine of res judicata bars reprosecution of the same charges as those previously dismissed on the merits; (3) the judgment in Paradise I was a judgment of dismissal on the merits; and (4) for the purposes of double jeopardy, the charge of capital felony is the same offense as the charge of murder. In light of these conclusions, I would hold, as did the trial court, that the state may not now reprosecute these defendants for capital felony, because in the circumstances of this case, capital felony and murder are as much the same charges for the purposes of res judicata as they are for the purposes of double jeop *480 ardy. The majority opinion mistakes the nature of the question when it states the issue to be whether the state must join in a single prosecution all discrete statutory offenses arising from a single criminal transaction. Neither the trial court nor the defendants have advanced a theory of mandatory joinder of criminal charges. The dispositive issue is, I believe, a much narrower one. It is whether, after a criminal prosecution has been dismissed on the merits, a defendant may be reprosecuted on a new charge that is the same offense as that for which he was earlier unsuccessfully prosecuted. In addressing that issue, I believe it is improper to imply that there are different classes of dismissals on the merits that warrant different views of what constitutes the same offense. The majority opinion concludes that “a pretrial dismissal, based on the statute of limitations, is not the logical or practical equivalent of a full and fair opportunity to litigate” and that therefore the sole effect of the decision in Paradise I is to foreclose relitigation of the retroactivity of the amended statute of limitations. In effect, this reasoning relegates the holding of United States v. Oppenheimer, 242 U.S. 85 , 37 S. Ct. 68 , 61L. Ed. 161 (1916), to one of issue preclusion. I do not believe that United States v. Oppenheimer is so limited. Indeed, Oppenheimer expressly stated: “It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the Government’s consent before a jury is empaneled . . . .” Id., 87 . Furthermore, this court has only recently held, in State v. Aillon, 189 Conn. 416, 424-26 , 456 A.2d 279 , cert. denied, 464 U.S. 837 , 104 S. Ct. 124 , 78 L. Ed. 2d 122 (1983), that both the state and the criminal defendant are precluded by the principles of res judicata from *481 relitigating claims that have previously resulted in an adverse final judgment. The fact that the final judgment in Aillon occurred after a trial and two subsequent mistrials was in no way crucial to its determination that “[ujnder the doctrine of res judicata, or claim preclusion, a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action on the same claim.” Id., 423 . The issue that is before us is therefore a simple one: is there any significant difference between the crime of capital felony and the crimes of murder, felony murder and kidnapping? Neither the state nor the majority opinion has in any way refuted the trial court’s observation that a new trial on the new charge would require the state to prove the same elements with the same evidence as would have been pertinent to a trial on the offenses charged in Paradise I. The state is making identical claims in both prosecutions, namely, that the defendants kidnapped Cunningham and intentionally killed him during the kidnapping. Attempting to transcend this basic identity between the new and the old charges, the majority opinion focuses on the difference in penalty between capital felony and other forms of murder. Because capital felony exposes a defendant to the risk of the death penalty, due process and our statutes require that the defendant be specifically notified of that risk and of the particular aggravating factors that may subject him to that penalty. Enhancing the punishment for a crime does not, however, transform it into a distinct new offense. Our persistent felony offender statutes, such as General Statutes § 53a-70, impose increased sanctions on defendants who have committed two or more specified felonies. Like the capital felony statute, § 53a-70 has “procedural and punitive consequences” different from those accompanying the basic offense. Yet “[a] person accused of being a persistent danger *482 ous felony offender is not charged with a crime separate from the substantive crime which forms the first part of the indictment against him. State v. Sinclair, 184 Conn. 215, 216 , 439 A.2d 945 (1981); State v. Perkins, 169 Conn. 263, 264-65 , 363 A.2d 141 (1975). The only function of the separate judicial proceeding on the defendant’s status as a persistent dangerous felon is to permit an enhanced sentence for conviction of the underlying substantive crime. See General Statutes § 53a-40 (e); State v. Lewis, 176 Conn. 270, 272 , 407 A.2d 955 (1978); State v. Perkins, supra, 264-65 .” State v. Fullwood, 194 Conn. 573, 587 , 484 A.2d 435 (1984). Similarly, the capital felony statute does not define a new offense when it increases the punishment for certain previously established classes of murders. Because the state’s claim in this case is functionally the same as the claim that was prosecuted in Paradise I, reprosecution is barred by the final judgment for the defendants in that case. I do not disagree in principle with the observation that there is not a total congruence between the tenets of double jeopardy and those of res judicata, or between the applicable tests for res judicata in the criminal and the civil law. See State v. Aillon, supra, 424-25 ; Vestal & Gilbert, “Preclusion of Duplicative Prosecutions: A Developing Mosaic,” 47 Mo. L. Rev. 1 (1982). Modern jurisprudence warns of the dangers of reliance on doctrinal transfer without regard to the constraints of context. I am, however, unpersuaded that in this case a proper application of preclusion principles warrants a reprosecution whose legitimacy turns solely upon the possible imposition of an enhanced penalty for conviction of capital felony. A criminal justice system that aspires to meet basic standards of fairness and due process cannot take judicial economy as its primary goal, and it is therefore irrelevant that the defendants’ entirely proper vindication in Paradise I resulted from *483 a final judgment that was rendered in pretrial proceedings rather than from a verdict at the end of a full trial. In State v. Aillon , where it was the defendant rather than the state that sought to relitigate a claim, we stated that “[t]he interest in achieving finality in criminal proceedings must be balanced against the interest in assuring that no individual is deprived of his liberty in violation of his constitutional rights.” State v. Aillon, supra, 425 . Despite the constitutional rights at stake in Aillon , we concluded that res judicata applied and that the defendant’s claim was barred. In this case, there is no conflict of principle between finality and a defendant’s constitutional interest in liberty; both are on the same side of the scale. The state has no constitutional interest in a successful prosecution that outbalances a defendant’s interest in the finality of a judgment on the merits on the same claim. The majority’s characterization of the defendants’ interest in res judicata as a “minimum interest in finality,” when the state seeks reprosecution on charges that are substantially identical to those on which a prior prosecution failed, ignores serious constitutional concerns of fundamental fairness. No articulable principle of criminal justice is vindicated by the majority’s differentiation in this case between double jeopardy and res judicata. By the reasoning of the majority, although reprosecution of these defendants for capital felony would have been precluded the instant a jury had been empaneled in their first prosecution, their present reprosecution is permissible because the defendants raised a valid pretrial defense. In effect, the majority imposes upon the defendants the punishment of increased jeopardy for having exercised their right to contest the validity of the original proceedings against them. Such a result is unconstitutional. Due process forbids punishing criminal defendants for the exercise of constitutional or statutory rights. Had the defend *484 ants mounted a successful appeal of their conviction after trial of the charges originally brought against them, they could not have been subjected to increased punishment upon reconviction. North Carolina v. Pearce, 395 U.S. 711, 723-26 , 89 S. Ct. 2072 , 23 L. Ed. 2d 656 (1969). Reindictment on capital felony charges while such an appeal was pending would also have been constitutionally barred. Blackledge v. Perry, 417 U.S. 21, 27-29 , 94 S. Ct. 2098 , 40 L. Ed. 2d 628 (1974). To expose these defendants at this time, on this record, to the death penalty, because they successfully defended themselves against essentially identical charges in Paradise I, raises serious constitutional questions of due process totally apart from proof of actual prosecutorial vindictiveness or harassment. The administration of criminal justice commands public confidence and respect only when it strikes a proper balance between the governmental interest in the effective prosecution of crime and the personal rights of criminal defendants to due process and fairness. The prosecutorial interest of the government is circumscribed by numerous rights afforded to criminal defendants by our state and federal constitutions, including the protection against unlawful search and seizure and the privilege against self-incrimination. The principle of finality expressed both in the tenets of the law of double jeopardy and in the rule of res judicata embodies yet another important personal right. History has repeatedly taught us that the only enduring guarantee of a just legal system is to afford fundamental rights and due process even to those accused of having committed horrendous crimes such as murder. Accordingly, I dissent from the setting aside of the judgments in favor of Paradise and Ellis. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7839389. Public record. Not legal advice.