State of Connecticut v. Joshua Komisarjevsky (2011)

MEMORANDUM OF DECISION RE DEFENDANT JOSHUA KOMISARJEVSKY'S MOTION FOR PROBABLE CAUSE HEARING (No. 105)

The Seventeenth Amendment to the Connecticut Constitution provides that, “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law.”   The enabling legislation, Conn. Gen.Stat. § 54–46a(a), provides that, “The accused person may knowingly and voluntarily waive such preliminary hearing to determine probable cause.”   The question presented by the motion now before the court is under what circumstances, following a waiver of a probable cause hearing found to be knowing and voluntary by the court, may the State amend the information without creating a new right to a probable cause hearing.   For the reasons stated below, the amendments to the information here did not create such a right.

The defendant, Joshua Komisarjevsky, has been charged with a number of crimes arising out of a 2007 triple homicide in Cheshire.   The crimes occurred on July 23, 2007, and the defendant was arrested later that day.   On July 26, 2007, the State filed a long form information (“2007 Information”).   The 2007 Information consists of twenty-one counts, of which the first six counts are relevant here.   The first six counts of the 2007 Information state as follows:

[FIRST COUNT]

Michael Dearington, State's Attorney for the Judicial District of New Haven, accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did murder two or more persons (to wit:  Jennifer Hawke–Petit, Haley Petit and Michaela Petit), at the same time and in the course of a single transaction, in violation of Section 53a–54b(7) of the Connecticut General Statutes.

SECOND COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did murder a person (to wit:  Michaela Petit), under sixteen years of age, in violation of Section 53a–54b(8) of the Connecticut General Statutes.

THIRD COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did murder a person (to wit:  Jennifer Hawke–Petit), who he kidnapped, during the course of the kidnapping, in violation of Section 53a–54b(5) of the Connecticut General Statutes.

FOURTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did murder a person (to wit:  Haley Petit) who he kidnapped, during the course of the kidnapping, in violation of Section 53a–54b(5) of the Connecticut General Statutes.

FIFTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did murder a person (to wit:  Michaela Petit) who he kidnapped, during the course of the kidnapping, in violation of Section 53a–54b(5) of the Connecticut General Statutes.

SIXTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Steven Hayes [sic] did murder a person (to wit:  Michaela Petit) in the course of the commission of sexual assault in the first degree, in violation of Section 53a–54(b)(6) [sic] of the Connecticut General Statutes.

On October 30, 2007, the defendant appeared before the court (Damiani, J.) and waived his right to a probable cause hearing.   The defendant acknowledged that his attorney had explained to him the elements of the offenses to which he had a right to a probable cause hearing and the evidence the State would present at such a hearing.  (October 30, 2007 T., at 2.) The court explained that if the defendant waived his right to a probable cause hearing, “I make the finding that prosecution is approved and may continue.”   The defendant replied that he understood and said, “I'll waive it, your honor.”  (Id., at 3.) The court stated that, “The record will reflect a knowing, intelligent, voluntary waive [sic] of the Hearing in Probable Cause.   Prosecution is approved and may continue.”   The defendant's attorney asked the court to “enter Pro Forma pleas of not guilty along with the jury election for us.”  (Id., at 4.)

On March 16, 2011, immediately prior to the commencement of jury selection, the State filed the amended long form Information (“2011 Information”) that is the focal point of the motion now before the court.   The 2011 Information consists of seventeen counts, of which nine counts—the First, Second, Third, Fourth, Fifth, Tenth, Eleventh, Twelfth, and Fourteenth Counts—are relevant here.   The counts in question state as follows:

[FIRST COUNT]

Michael Dearington, State's Attorney for the Judicial District of New Haven, accuses Joshua Komisarjevsky of Murder and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a .m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did, with intent to cause the death of another person (to wit:  Jennifer Hawke–Petit), intentionally aid Steven Hayes in causing her death, in violations of Sections 53a–54a(a) and 53a–8 of the Connecticut General Statutes.

SECOND COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Murder and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did, with intent to cause the death of another person (to wit:  Hayley Petit), cause the death of such person, said conduct being in violation of section 53a–54a(a) of the Connecticut General Statutes.

THIRD COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Murder and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky did, with intent to cause the death of another person (to wit:  Michaela Petit), cause the death of such person, said conduct being in violation of Section 53a–54a(a) of the Connecticut General Statutes.

FOURTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky, with the intent to cause the deaths of two or more persons (to wit:  Jennifer Hawke–Petit, Hayley Petit, and Michaela Petit), did cause the deaths of such persons in the course of a single transaction, in violation of section 53a–54b(7) of the Connecticut General Statutes.

FIFTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky, with intent to cause the death of a person (to wit:  Michaela Petit), did cause her death and she was under sixteen years of age, in violation of Section 53a–54b(8) of the Connecticut General Statutes.

TENTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky, with intent to cause the death of a person who he kidnapped (to wit:  Jennifer Hawke–Petit), did intentionally aid Steven Hayes in causing her death during the course of the kidnapping, in violation of Sections 53a–54b(5) and 53a–8 of the Connecticut General Statutes.

ELEVENTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky, with the intent to cause the death of a person who he kidnapped (to wit:  Hayley Petit), did cause her death during the course of the kidnapping in violation of Section 53a–54b(5) of the Connecticut General Statutes.

TWELFTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 a.m., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky, with the intent to cause the death of a person who he kidnapped (to wit:  Michaela Petit), did cause her death during the course of the kidnapping, in violation of Section 53a–54b(5) of the Connecticut General Statutes.

FOURTEENTH COUNT

And the Attorney aforesaid further accuses Joshua Komisarjevsky of Capital Felony and charges that at the Town of Cheshire, on or about the 23rd day of July 2007, between 3:00 a.m. and 10:00 am., at 300 Sorghum Mill Drive, the said Joshua Komisarjevsky, with the intent to cause the death of a person (to wit:  Michaela Petit), did cause her death in the course of the commission of sexual assault in the first degree, in violation of Section 53a–54b(6) of the Connecticut General Statutes.

Immediately after the filing of the 2011 Information, the defendant orally moved for a probable cause hearing.   Given the fact that a large pool of potential jurors was waiting to be sworn, the court denied the oral motion without prejudice to a written motion accompanied by a memorandum of law to which the State would have the opportunity to file a written response.   That procedure has now occurred.

On June 2, 2011, the defendant filed the written motion for probable cause hearing now before the court.   The motion seeks a probable cause hearing on the First, Second, Third, Fourth, Fifth, Tenth, Eleventh, Twelfth, and Fourteenth Counts of the 2011 Information.   The motion was heard on July 7, 2011.

The motion requests “a probable cause hearing with respect to each of the counts of the [2011] information that could be punished by a life sentence.”   Although, as mentioned, defendants charged with crimes punishable by death or life imprisonment have a state constitutional right to probable cause hearings on those allegations, the defendant in this case has duly waived his right to such a hearing.   The court must now determine the effect of this waiver with respect to future amendments of the information.

The State does not contend that the waiver of a probable cause hearing waives the right to a future probable cause hearing with respect to any conceivable amendment of the information.   For example, if the 2007 Information had charged only the murders of Haley and Michaela Petit and the 2011 Information had additionally charged the murder of Jennifer Hawke–Petit, it is common ground that the defendant would have a right to a probable cause hearing on that latter charge.   But the defendant's counterargument that any post-waiver alteration of an information, no matter how trivial, creates the right to a new probable cause hearing seems extravagant.   For example, if the 2011 Information had merely added a comma for grammatical purposes, it would be the triumph of formalism to hold that the amendment of such a minor defect would create a right to a probable cause hearing.  (Although the defendant boldly argues that the addition or deletion of a single comma would indeed create such a right.)   This is especially so since, under our rules of practice, the judicial authority may order the correction of minor defects in an information “at any time.”  P.B. § 36–16.   Amendments of minor defects can be made during, or even following, the evidentiary portion of the trial.   It would be absurd in theory and unworkable in practice to hold that an amendment of a minor defect in an information would trigger the right to a probable cause hearing.

If the post-waiver addition of a completely new murder charge triggers the right to a probable cause hearing on that charge and the correction of a minor defect in the information does not, where in between these ends of the spectrum should the line be drawn?   To articulate the judicial task more precisely, on what principle should that line be drawn?

State v. Diaz, 237 Conn. 518, 679 A.2d 902 (1996), provides substantial guidance in this area.   The defendant in Diaz argued that the trial court should not have instructed the jury on a Pinkerton theory of liability;  Pinkerton v. United States, 328 U.S. 640 (1946);  because the State did not rely on that doctrine in the probable cause hearing.  Diaz rejected the claim, stating that, “The purpose of a hearing in probable cause is simply to determine whether there is sufficient evidence of the defendant's involvement in the crime charged to allow the state to try the defendant for that offense.”  237 Conn. at 532.

The functional purpose of a probable cause hearing helps us identify what exactly a defendant waives when he waives the right to such a hearing.   “[C]ourts do not look with favor on a waiver of constitutional rights and do not ‘presume acquiescence in the loss of fundamental rights.’  Johnson v. Zerbst, 304 U.S. 458, 464 ․ (1938).   But that policy of disfavor should not blind a court from seeing a defendant's true aims.”  United States v. Ferguson, 758 F.2d 843, 852 (2d Cir.), cert. denied, 474 U.S. 841 (1985).   Under Diaz, by waiving the right to a probable cause hearing, a defendant's “true aim is to waive the right to a hearing “to determine whether there is sufficient evidence of the defendant's involvement in the crime charged to allow the state to try the defendant for that offense.”

Given this analysis, the judicial task in this case is to determine whether a post-waiver amendment alters “the crime charged” in a way that expands the scope of the evidence that the State must present to establish “sufficient evidence of the defendant's involvement” to allow it to try the defendant for that offense.   This analysis fits in neatly with Diaz itself, which explains that, “We have never suggested that the state's failure to rely on a particular principle of criminal liability at a probable cause hearing bars it from proceeding under that theory at trial when ․ the charge to which the defendant has been held to answer at trial is the same as that for which a valid determination of probable cause has been made.”  237 Conn. at 532–33.

The defendant requests a probable cause hearing on nine counts contained in the 2011 Information.   The court must now compare each of these counts with their counterparts in the 2007 Information.

First Count.   The First Count of the 2011 Information charges the murder of Jennifer Hawke–Petit.   Its counterpart is the Third Count of the 2007 Information charging capital felony in the murder of Jennifer Hawke–Petit, a person kidnapped by the defendant.

Second Count.   The Second Count of the 2011 Information charges the murder of Hayley Petit.   Its counterpart is the Fourth Count of the 2007 Information charging capital felony in the murder of Hayley Petit, a person kidnapped by the defendant.

Third Count.   The Third Count of the 2011 Information charges the murder of Michaela Petit.   Its counterparts are the Fifth and Sixth Counts of the 2007 Information, charging capital felony in, respectively, the murder of Michaela Petit, a person kidnapped by the defendant, and the murder of Michaela Petit, a person as to whom the defendant committed the crime of sexual assault in the first degree.

Fourth Count.   The Fourth Count of the 2011 Information charges capital felony in the murder of two or more persons (namely, Jennifer Hawke–Petit, Hayley Petit, and Michaela Petit) in the course of a single transaction.   This is virtually identical (with only minor changes in phraseology) with the First Count of the 2007 Information.

Fifth Count.   The Fifth Count of the 2011 Information charges capital felony in the murder of Michaela Petit, a person under sixteen years of age.   This is virtually identical (with only minor changes in phraseology) to the Second Count of the 2007 Information.

Tenth Count.   The Tenth Count of the 2011 Information charges capital felony in the murder of Jennifer Hawke–Petit, a kidnapped person.   The counterpart of this charge is the Third Count of the 2007 Information, charging the same offense.   The only significant difference in the phraseology of the 2011 Information is that the latter information charges accomplice liability under Conn. Gen.Stat. § 53a–8.

Eleventh Count.   The Eleventh Count of the 2011 Information charges capital felony in the murder of Hayley Petit, a kidnapped person.   This is virtually identical (with only minor changes in phraseology) to the Fourth Count of the 2007 Information.

Twelfth Count.   The Twelfth Count of the 2011 Information charges capital felony in the murder of Michaela Petit, a kidnapped person.   This is virtually identical (with only minor changes in phraseology) to the Fifth Count of the 2007 Information.

Fourteenth Count.   The Fourteenth Count of the 2011 Information charges capital felony in the murder of Michaela Petit, a person as to whom the defendant committed the crime of sexual assault in the first degree.   This is virtually identical (with only minor changes in phraseology) to the Sixth Count of the 2007 Information.

It is apparent from this summary that the charges in question contained in the 2011 Information fall into three categories with respect to their relationship with their counterparts in the 2011 Information:

(1) Five counts—the Fourth, Fifth, Eleventh, Twelfth, and Fourteenth Counts of the 2011 Information—are virtually identical to their counterparts in the 2007 Information, with only minor changes in phraseology.

(2) Three counts—the First, Second, and Third Counts of the 2011 Information—are lesser included offenses of their counterparts in the 2007 Information.

(3) One count—the Tenth Count of the 2011 Information—adds an allegation of accomplice liability under Conn. Gen.Stat. § 53a–8 to its counterpart in the 2007 Information.

These categories will now be considered in turn.

(1) The five counts that merely alter their counterparts in the 2007 Information by minor changes in phraseology can hardly be said to trigger a new right to a probable cause hearing.   As mentioned, an information may always be amended “to remedy any defect, imperfection or omission.”  P.B. § 36–16.   A requirement that minor changes in phraseology would trigger the right to a new probable cause hearing would represent the triumph of form over substance.   Such a requirement would be impossible to square with P.B. § 36–16 and would be unworkable in practice, especially if the information were amended, for perfectly appropriate editorial reasons, during or after the evidentiary portion of the trial.   The court declines to impose such a requirement.

(2) The three counts that allege lesser included offenses of their counterparts in the 2007 Information do not trigger the right to a new probable cause hearing.   The defendant acknowledges that, “murder is indisputably a lesser included offense of capital felony.”  (Defendant's Brief, at 8.) Accord State v. McGann, 199 Conn. 163, 178, 506 A.2d 109 (1986).   If a court finds probable cause of a greater offense, it necessarily finds probable cause of a lesser included offense.  State v. Hafford, 252 Conn. 274, 308, 746 A.2d 150, cert. denied, 531 U.S. 855 (2000);  State v. Bjorklund, 79 Conn.App. 535, 560, 830 A.2d 1141 (2003), cert. denied, 268 Conn. 920, 846 A.2d 882 (2004).   A waiver of a probable cause hearing on a greater offense is likewise a waiver of a probable cause hearing on a lesser included offense.  “The purpose of a hearing in probable cause is simply to determine whether there is sufficient evidence of the defendant's involvement in the crime charges to allow the state to try the defendant for that offense.”  State v. Diaz, supra, 237 Conn. at 532.   A waiver of a probable cause hearing is, as discussed above, a waiver of the State's obligation to produce sufficient evidence of the crime charged.   That waiver necessarily acts as a waiver of the State's obligation to produce evidence of lesser offenses included in the crime charged.   No additional notice to the defendant is required.  “It is a well-settled principle of constitutional law that where one or more offenses are lesser than and included within the one charged, notice of the one charged constitutes notice of any lesser included offenses.”  State v. Rodriguez, 180 Conn. 382, 402, 429 A.2d 919 (1980).

(3) The allegation of accomplice liability under Conn. Gen.Stat. § 53a–8 does not trigger the right to a new probable cause hearing.  “[T]here is no practical significance in being labeled an ‘accessory’ or a ‘principal’ for the purpose of determining criminal responsibility.”  State v. Harris, 198 Conn. 158, 164, 502 A.2d 880 (1985).   As mentioned, Diaz is dispositive of this claim.  “We have never suggested that the state's failure to rely on a particular principal of criminal liability at a probable cause hearing bars it from proceeding under that theory at trial when, as here, the charge to which the defendant has been held to answer at trial is the same as that for which a valid determination of probable cause has been made.”  State v. Diaz supra, 237 Conn. at 532–33.   The defendant's waiver of a probable cause hearing on a specific allegation charging him as a principal likewise fails to bar the State from proceeding at trial on a theory of accomplice liability on the same charge.

For the reasons set forth above, the Defendant's request for a hearing in probable cause is denied.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.