Reaffirming Colton: The Strict Test for Double Jeopardy Based on Prosecutorial Intent in Connecticut

Introduction

State v. Patrick M. (Supreme Court of Connecticut, officially released 3 June 2025) presented the Court with a familiar but rarely successful claim: whether the federal and state constitutional prohibitions on double jeopardy bar a retrial when a prior conviction was reversed for prosecutorial misconduct. The defendant, whose murder conviction had been set aside because the prosecutor violated Doyle v. Ohio by commenting on the defendant’s post-Miranda silence, moved to dismiss the pending retrial. He invoked the doctrine articulated in State v. Colton (1995) – itself an extension of Oregon v. Kennedy (1982) and United States v. Wallach (1992) – arguing that the prosecutor had deliberately committed the misconduct to avert an imminent acquittal. The trial court denied the motion; the defendant pursued an interlocutory appeal under Conn. Gen. Stat. § 51-199(b)(3).

Summary of the Judgment

The Supreme Court (D’Auria, J.) unanimously affirmed the denial, holding that:

The defendant failed to prove that the prosecutor’s Doyle violation was committed with the specific intent to thwart an expected acquittal.
The defendant did not waive the double-jeopardy claim by failing to move for a mistrial, because he did raise the misconduct in a post-verdict motion for a new trial.
Colton remains good law; conversely, the Court also refused to overrule State v. Michael J. (2005), which rejected broader state-constitutional protection.
When a trial court decides a double-jeopardy dismissal motion on an undisputed paper record, appellate review is plenary, not “clearly erroneous.”

Analysis

Precedents Cited and Their Influence

Oregon v. Kennedy, 456 U.S. 667 (1982) – Federal baseline: retrial barred only when the prosecutor intentionally goads the defendant into requesting and obtaining a mistrial.
United States v. Wallach, 979 F.2d 912 (2d Cir. 1992) – Expanded Kennedy reasoning: retrial also barred when misconduct is intended to avoid an imminent acquittal, even if no mistrial is sought.
State v. Colton, 234 Conn. 683 (1995) – Adopted Wallach in Connecticut; created the “intent-to-prevent-acquittal” bar.
State v. Michael J., 274 Conn. 321 (2005) – Held that the Connecticut Constitution does not afford broader double-jeopardy protection than the federal constitution.
State v. Butler, 262 Conn. 167 (2002) & companion cases – Demonstrated how difficult it is to satisfy Colton; clarified that ordinary prosecutorial error, even if reversible, does not show the requisite intent.

Legal Reasoning

Scope of Review Because the motion was decided solely on the prior trial transcripts and appellate record, the Court treated the issue as a legal question subject to plenary review, correcting earlier cases that had applied the “clearly erroneous” lens in similar contexts.
No Proof of Specific Intent The defense offered no new evidence of the prosecutor’s mindset; the record showed a prosecutor aggressively seeking conviction rather than orchestrating a mistrial. • The state’s evidence, while not overwhelming, was deemed “sufficient” on direct appeal. • Cross-examination and summation tactics were consistent with ordinary advocacy. • There were no external acts (e.g., false charges, deliberate mistrial invitations) comparable to cases like State v. Lettice (Wisconsin) or People v. Dawson (Michigan) where intent was inferred.
Waiver Rejected Although the defendant did not move for a mistrial, his post-verdict motion for a new trial preserved the constitutional argument, and Colton itself does not impose a mistrial prerequisite.
Stare Decisis – The Court declined invitations to overrule either Colton (state suggestion) or Michael J. (defense suggestion). – It stressed the doctrine’s narrowness and the absence of “cogent reasons or inescapable logic” justifying doctrinal upheaval.

Impact of the Judgment

This decision is precedential in four key respects:

Reaffirmation of a Rare Remedy. Colton survives but remains “strict” – future defendants must marshal compelling, often extra-record evidence of prosecutorial motive.
Clarified Standard of Appellate Review. Motions resolved on a paper record receive de novo review, guiding both bench and bar in crafting appellate arguments.
Guidance on Preservation. A defendant need not obtain a mistrial to preserve a double-jeopardy challenge, but prompt assertion of prosecutorial misconduct is still prudent.
Structural Incentive for Prosecutorial Ethics. By keeping the door—however narrow—open to dismissal when misconduct is strategic, the Court reinforces ethical constraints without converting every Doyle or Brady error into a dismissal trigger.

Complex Concepts Simplified

Double Jeopardy – Constitutional shield against being tried twice for the same offense. Retrial is normally permissible after reversal unless a narrow bar applies.
Doyle Violation – The prosecution may not use a defendant’s silence after Miranda warnings as evidence of guilt.
Motion for Mistrial vs. Motion to Dismiss – A mistrial aborts the ongoing trial; dismissal terminates prosecution entirely. Under Kennedy, only misconduct aiming to provoke a mistrial usually bars retrial.
Plenary Review – The appellate court gives no deference to the trial court’s ruling; it answers the legal question anew.
Stare Decisis – The principle that courts should adhere to precedent unless powerful reasons compel change.

Conclusion

State v. Patrick M. underscores the formidable hurdle a defendant faces when invoking the Colton/Wallach extension of Kennedy. Prosecutorial misconduct, even if it causes a conviction to be reversed, does not automatically preclude reprosecution; there must be demonstrable intent to sidestep an anticipated acquittal. The Court’s opinion also cleans up procedural doctrine—confirming plenary review—while leaving intact both Colton and Michael J.. Practitioners should thus treat dismissal under the double-jeopardy clause as an extraordinary remedy, reserved for egregious, purposeful misconduct. Investigating and documenting prosecutorial motivations will be essential for any future litigant aspiring to clear this high bar.