In a criminal law matter, the Appellate Court of Connecticut rejected a petitioner’s post-conviction claim of double jeopardy, holding that he was subject to a continuing prosecution, not successive prosecutions.

Case Background

In this case, the petitioner was charged with five counts of risk of injury to a minor child, as well as one count for each of the following: reckless endangerment, criminal possession of a firearm, carrying a pistol without a permit, attempted assault, attempted murder, and possession of narcotics. He was acquitted of attempted murder and convicted of narcotics possession, but the jury deadlocked on the remaining charges.

The judge declared a mistrial, and the petitioner was sentenced to five years’ incarceration. The prosecution subsequently charged the petitioner with the same charges on which the jury had hung. Though he was acquitted of attempted assault, he was convicted on the other charges. The petitioner was sentenced to fifteen years’ incarceration, consecutive to his previous sentence, along with eight years’ special probation.

The petitioner engaged in a series of appeals, during which he argued, in part, that the two trials amounted to successive prosecutions in violation of the Fifth Amendment prohibition against double jeopardy. He claimed that controlling precedent “applied to bar the state from prosecuting him in a second trial for the charges on which the jury could not come to a unanimous verdict in the first trial.”

Double Jeopardy Under the U.S. Constitution

The Fifth Amendment of the U.S. Constitution states, “No person shall… be subject for the same offense to be twice put in jeopardy of life or limb,” a principle referred to as double jeopardy. To determine whether two offenses charged instead constitute a single offense, courts must determine “whether each provision requires proof of a fact which the other does not.” This so-called Blockburger test applies “not only to charges brought in a single prosecution but to charges in successive prosecution cases as well.”

However, the U.S. Supreme Court has held, “[A] trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which [the defendant] was subjected.” As the Court elaborated:

The double-jeopardy provision of the Fifth Amendment… does not mean that every time the defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed.

The Court’s Decision

Richardson v. United States, 468 U.S. 317 (1984). Rather, the Court noted the possible occurrence of unforeseeable circumstances, such as a hung jury, and denying the State the power to retry a defendant under such a scenario would frustrate the protective purpose of our laws.

With these principles in mind, in this case the Appellate Court of Connecticut held that “the state’s retrial of the petitioner on charges that deadlocked the jury” did not violate double jeopardy. As the Court explained, “the declaration of a mistrial due to the jury’s failure to agree on the remaining charges was not an event that terminated jeopardy as to those charges.” Therefore, the judgment was affirmed.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding criminal defense, please do not hesitate to contact Attorney Joseph C. Maya in the firm’s Westport, CT office at 203-221-3100 or at