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Berthiaume v. State

Appellate Court of Connecticut

September 3, 2019

TOBY A. BERTHIAUME
v.
STATE OF CONNECTICUT

         Argued May 28, 2019

         

         Superior Court in the judicial district of Hartford, where the court, Dewey, J.

         COUNSEL:

          Deborah G. Stevenson, assigned counsel, for the appellant (petitioner).

          James A. Killen, senior assistant state's attorney, with whom were Gail P. Hardy, state's attorney, and Thomas Garcia, senior assistant state's attorney, for the appellee (respondent).

          Judges: Lavine, Devlin and Eveleigh, Js. DEVLIN, J. In this opinion the other judges concurred.

          OPINION

Page 1074

          [192 Conn.App. 323] DEVLIN, J.

          This is an appeal from the summary judgment rendered by the trial court in favor of the respondent, the state of Connecticut, on a civil petition for a new criminal trial filed by the petitioner, Toby A. Berthiaume. This case presents an issue that our courts have not previously addressed: Whether res judicata precludes a civil petition for a new trial based on a claim of newly discovered evidence when

Page 1075

that same claim previously was litigated before the criminal court that had jurisdiction over the criminal matter but nonetheless lacked the authority to adjudicate the claim under our rules of practice. We conclude that, because the criminal court lacked the authority to rule on such a claim, it could not have issued a valid final decision, and, thus, the court's rendering summary judgment on the basis of the preclusive effect of that proceeding was improper. Accordingly, we reverse the judgment of the trial court and remand the case for further proceedings.[1]

         [192 Conn.App. 324] Following a jury trial, the petitioner was convicted of burglary in the first degree in violation of General Statutes ยง 53a-101 (a) (2), and his conviction was affirmed on direct appeal. State v. Berthiaume, 171 Conn.App. 436, 438, 157 A.3d 681, cert. denied, 325 Conn. 926, 169 A.3d 231, cert. denied, ___ U.S. ___, 138 S.Ct. 403, 199 L.Ed.2d 296 (2017).

          On direct appeal, this court set forth the following relevant facts. " In mid-2013, the victim, Simone LaPointe, was ninety-three years old and resided at 126 Windsor Street in Enfield, her home for over four decades. She suffered from dementia and short term memory loss, and although she lived alone, was accompanied by either a friend or one of her surviving eleven children 'most of the time.' Typically, the victim's friend stayed with her overnight, and her children took turns visiting her throughout the day. Despite this visitation schedule, there were gaps of time throughout the day in which the victim was home alone. Because the victim neither drove nor owned a car, her driveway would be empty during these gap periods, thus indicating that she was alone.

          " On May 6, 2013, Marita Cunningham, one of the victim's daughters, arrived at 126 Windsor Street around noon, and departed, leaving the victim home alone, at approximately 12:50 p.m. When Cunningham left 126 Windsor Street, nothing inside the residence looked out of order and the victim was uninjured. About one hour later, Jessica Navarro-Gilmore, while passing by in a motor vehicle, saw the [petitioner] and another white man 'walking suspiciously' on a road near the victim's home while carrying what appeared to be 'a twenty inch flat screen . . . TV or monitor . . . .' The two men were 'walking quickly and looking over their shoulder[s] suspiciously.' Drawing on her own experience committing theft offenses, Navarro-Gilmore immediately suspected that the two men had stolen something [192 Conn.App. 325] from a home in the neighborhood. After doubling back to get a better look at the men, Navarro-Gilmore called the police at 1:53 p.m. and reported what she had seen.

          " At approximately 3 p.m., the victim called Norma Shannon, another of her daughters, and told Shannon that her knee was bleeding. Shannon went to 126 Windsor Street in response to the call, and upon entering, noticed that 'the house had been ransacked . . . .' Various drawers and cabinets inside the house had been left open, jewelry and other items were lying on the victim's bed and dresser 'as if they had been dumped there,' and the dining room

Page 1076

chandelier was broken. There was blood on the floor of the dining room, and the phone line in the living room, which was adjacent to the dining room, had been cut. The victim's knee was bandaged, and she had sustained a 'mark on her nose,' a bruise on her face, and a chipped tooth. A search of the home revealed that the victim's ring, which ...


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