TOBY A. BERTHIAUME
STATE OF CONNECTICUT
May 28, 2019
Court in the judicial district of Hartford, where the court,
Deborah G. Stevenson, assigned counsel, for the appellant
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
Judges: Lavine, Devlin and Eveleigh, Js. DEVLIN, J. In this
opinion the other judges concurred.
Conn.App. 323] DEVLIN, J.
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
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.
Conn.App. 324] Following a jury trial, the petitioner was
convicted of burglary in the first degree in violation of
General Statutes § 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).
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
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