Berthiaume v. State ( 2019 )

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TOBY A. BERTHIAUME v. STATE OF CONNECTICUT
(AC 41496)
Lavine, Devlin and Eveleigh, Js.
Syllabus
The petitioner, who had been convicted of the crime of burglary in the first
degree, filed a petition for a new trial on the basis of newly discovered
evidence regarding the alleged ulterior motives of a witness for the
respondent state of Connecticut for testifying at the petitioner’s criminal
trial. Following his conviction, the petitioner filed a motion for a new
trial on the basis of newly discovered evidence in his criminal case
pursuant to the applicable rule of practice (§ 42-53). The criminal court
denied the motion, concluding that the petitioner’s evidence was insuffi-
cient to support his motion because, although the evidence was newly
discovered, it was immaterial, cumulative and unlikely to produce a
different result at trial. Thereafter, the petitioner brought the present
action by filing in the trial court the subject petition for a new trial
pursuant to statute (§ 52-270). The trial court granted the state’s motion
for summary judgment and rendered judgment in favor of the state,
concluding that the petitioner’s claim of newly discovered evidence had
been fully and fairly litigated in the criminal proceeding, and, therefore,
his petition was barred by res judicata. Subsequently, the petitioner, on
the granting of certification, appealed to this court. Held that the trial
court improperly rendered summary judgment in favor of the state on
the basis of the preclusive effect of the proceeding in the criminal court,
as the criminal court lacked the authority under the applicable rule of
practice (§ 42-55) to rule on the petitioner’s claim of newly discovered
evidence; because § 42-55 requires that a petition for a new trial based
on newly discovered evidence be brought only in civil court, the criminal
court lacked the authority to rule on such a claim or to award the
petitioner the relief he requested of a new trial, and, therefore, because
the criminal court could not have rendered a valid, final decision on
the petitioner’s motion for a new trial, res judicata did not preclude the
petitioner’s petition for a new trial in the civil action.
Argued May 28—officially released September 3, 2019
Procedural History
Petition for a new trial following the petitioner’s con-
viction of the crime of burglary in the first degree,
brought to the Superior Court in the judicial district
of Hartford, where the court, Dewey, J., granted the
respondent’s motion for summary judgment and ren-
dered judgment thereon, from which the petitioner, on
the granting of certification, appealed to this court.
Reversed; further proceedings.
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).
Opinion
DEVLIN, J. This is an appeal from the summary judg-
ment rendered by the trial court in favor of the respon-
dent, 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 none-
theless 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 pro-
ceedings.1
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).
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 accom-
panied 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 shoul-
der[s] suspiciously.’ Drawing on her own experience
committing theft offenses, Navarro-Gilmore immedi-
ately suspected that the two men had stolen something
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 Wind-
sor Street in response to the call, and upon entering,
noticed that ‘the house had been ransacked . . . .’ Vari-
ous 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
contained fourteen birthstones, and her nineteen inch
flat screen television, had been stolen.
‘‘At 3:44 p.m., the [petitioner] sold what was later
determined to be the victim’s ring and television at the
Money Shop, a pawn shop and jewelry store located in
Springfield, Massachusetts. In order to make the sales,
the [petitioner] provided Jeffrey Fiske, the owner of
the pawn shop, with his identification and had his pho-
tograph taken. The [petitioner] also provided his
address, 116 Windsor Street, and telephone number.
Fiske identified the [petitioner] as the person who
received the sales proceeds.
‘‘Thereafter, police showed Navarro-Gilmore a
sequential photographic array that did not include a
photograph of the [petitioner], and she did not identify
anyone as one of the men she saw carrying the television
on May 6, 2013. After developing the [petitioner] as a
suspect, Detective Brian Callaghan of the Enfield Police
Department searched the New England State Police
Information Network, a database wherein local pawn
shops record their daily transactions, which returned
information on the Money Shop. On June 11, 2013, Fiske
provided Detective Callaghan with sales slips, the [peti-
tioner’s] photograph, and the victim’s television and
ring.
‘‘The [petitioner] was arrested on July 3, 2013, and
charged with burglary in the first degree and several
other offenses. Two days later, the [petitioner’s] book-
ing photograph, along with an article referencing the
burglary, was published in the Enfield Patch, a local
online newspaper. While browsing online, Navarro-Gil-
more saw the [petitioner’s] photograph and immedi-
ately recognized him as one of the men she saw carrying
the television on May 6, 2013. Thereafter, Detective
Callaghan contacted Navarro-Gilmore to request that
she view another photographic array. Navarro-Gilmore
indicated that she already had seen the [petitioner’s]
photograph in the Enfield Patch and therefore could
not fairly participate in an identification procedure.’’
(Footnotes omitted.) Id., 438–41.
On June 10, 2014, after the jury’s verdict, the trial
court in the petitioner’s criminal case, Mullarkey, J.,
held a hearing originally intended for sentencing.
Instead, the prosecutor notified the court that one of
the state’s witnesses, Navarro-Gilmore, recently had
contacted the prosecutor’s office seeking assistance
regarding an arrest warrant for the witness’ daughter.
In response to this new information, the court post-
poned the sentencing and scheduled a subsequent hear-
ing to allow the parties to question Navarro-Gilmore
about this newly discovered information. Defense coun-
sel then requested additional time to file a motion for
a new trial.
On June 27, 2014, the court convened the first of a
series of hearings regarding Navarro-Gilmore’s tele-
phone call to the prosecutor. Although defense counsel
had not yet filed a motion for a new trial, she presented
a number of witnesses to testify in support of this antici-
pated motion. Then, on August 8, 2014, defense counsel
filed a petition for a new trial pursuant to Practice Book
§ 42-55 and General Statutes § 52-270. The petitioner
sought a new trial on the basis of newly discovered
evidence regarding Navarro-Gilmore’s alleged ulterior
motives in testifying. This prompted a lengthy colloquy
in which the court discussed whether this petition
was proper:
‘‘The Court: All right. So, as we discussed before
court, this [petition] needs to be filed with the civil
clerk’s office because it is a civil action. . . .
‘‘[The Prosecutor]: Is it a civil motion for a new trial
since he hasn’t been sentenced yet?
‘‘The Court: Well, [he’s] filed a petition for new trial.
‘‘[Defense Counsel]: I filed the petition under . . .
Practice Book [§] 42-55, which is under the Superior
Court rules for criminal matters and—which does not
make any reference to its being a civil action. . . .
‘‘The Court: Well, I wished it were under the criminal
rules, or it remained under the criminal rules, but it
doesn’t. . . . All I’m telling you is the [rules of] practice
[require] you to file it across the street, and I will go
forward with whatever evidence you have today. And
if you both agree, I will use the evidence that we have
already heard on this issue. . . . And as long as the
state goes along with that, we will treat it as evidence.
All I can say to you is that I have no expertise in these
civil concerns, but I have two or three others of these
pending, and they are all filed across the street. . . .
‘‘[Defense Counsel]: I will try to learn as soon and
as much as I can about the proper way to file the motion.
I’d just like to be clear—
‘‘The Court: My—my job is to make the decisions
based on the evidence, and the arguments, and the law,
which I’m prepared to go forward with today, and you
go over and square up whatever you have to do with
those people. I don’t interfere with them or their pro-
cesses. . . .
‘‘[The Prosecutor]: Your honor, I think the more
appropriate motion is filed under [Practice Book §] 42-
53, which is a motion for new trial.
‘‘The Court: I’m not saying I disagree with you, but
the [petitioner] has filed this motion. I cannot tell [him]
what to file.
‘‘[The Prosecutor]: I understand. But I think if it
comes in as a petition for new trial, they don’t have a
perfected record for you to even entertain it because
no—it’s—it’s not a disposed of matter. He hasn’t even
been sentenced yet. I believe the petitions require just
that, and that’s why it is separated from one to the
other. And I think the court holds exclusive jurisdiction
over a matter that is not yet sentenced. So, it wouldn’t
even be a civil filing where we would agree to this court
hearing this.
‘‘The Court: Well, there are a bunch of cases concern-
ing this and there’s a law annotation after . . . [§] 52-
[2]70. But we’ll worry about that at a later date. For
now, there’s a witness here subpoenaed by the defense
and—or whatever you’re gonna call it. I’d like to hear
what the evidence is.’’
Subsequently, on November 26, 2014, defense coun-
sel withdrew the petition for a new trial and, on Decem-
ber 17, 2014, filed a motion for a new trial pursuant to
Practice Book § 42-53. The motion relied on the same
evidence and same claims as the petition, i.e., that the
petitioner was entitled to a new trial on the basis of
newly discovered evidence regarding Navarro-Gil-
more’s alleged ulterior motives. After recognizing the
new motion before it, the court granted defense coun-
sel’s motion to consider the testimony in the hearings
prior to the filing of this new motion. At the close
of testimony at this hearing, the parties offered their
arguments on the motion for a new trial.
In the course of these arguments, there was a dispute
over what legal standard should apply to decide a
motion for a new trial. The prosecutor argued that
‘‘what the court needs to do is analyze the situation in
the rubric provided by Asherman [v. State, 202 Conn.
429, 521 A.2d 578 (1987)].’’ Defense counsel argued that
a ‘‘motion for [a] new trial shall be granted for any other
error which the defendant can establish was materially
injurious to him or her’’ under Practice Book § 42-53
(a) (2). On February 5, 2015, the court issued an oral
decision denying the motion for a new trial. In its subse-
quent written memorandum of decision, the court
applied the Asherman standard, as proffered by the
prosecutor, to determine whether a new trial was war-
ranted. The court concluded that the evidence, though
newly discovered, was immaterial, cumulative, and
unlikely to produce a different result at trial. On the
basis of these findings, the court determined that the
petitioner’s evidence was insufficient to support the
motion for a new trial and denied the motion.
On May 19, 2015, the petitioner commenced the pres-
ent action by filing a petition for a new trial pursuant
to § 52-270 in the civil trial court. Like the motions
previously filed in the criminal court, this petition
alleged that the new information regarding Navarro-
Gilmore constituted newly discovered evidence that
warranted a new trial. The state moved for summary
judgment, asserting that the claim of newly discovered
evidence had been fully and fairly litigated in the crimi-
nal proceeding such that the petition was barred by res
judicata. The trial court, Dewey, J., agreed and rendered
summary judgment in favor of the state. This appeal
followed.
Before addressing the merits of the petitioner’s claim,
we first set forth the proper standard of this court’s
review and certain well settled principles that guide
our resolution of res judicata claims. The issue of
whether res judicata applies ‘‘is a question of law sub-
ject to plenary review.’’ Independent Party of CT—
State Central v. Merrill, 330 Conn. 681, 712, 200 A.3d
1118 (2019). ‘‘[W]here the legal conclusions of the court
are challenged, we must determine whether they are
legally and logically correct and whether they find sup-
port in the facts set out in the memorandum of decision
. . . .’’ (Internal quotation marks omitted.) Stamford
Hospital v. Schwartz, 190 Conn. App. 63, 97, 209 A.3d
1243 (2019).
‘‘The doctrine of res judicata provides that [a] valid,
final judgment rendered on the merits by a court of
competent jurisdiction is an absolute bar to a subse-
quent action between the same parties . . . upon the
same claim or demand. . . . Res judicata prevents a
litigant from reasserting a claim that has already been
decided on the merits. . . . Stated another way, res
judicata is based on the public policy that a party should
not be able to relitigate a matter which it already has
had an opportunity to litigate. . . . [W]here a party has
fully and fairly litigated his claims, he may be barred
from future actions on matters not raised in the prior
proceeding.’’ (Internal quotation marks omitted.) Inde-
pendent Party of CT—State Central v. Merrill, supra,
330 Conn. 712–13.
The petitioner claims on appeal that, because Prac-
tice Book § 42-55 requires that petitions for a new trial
on the ground of newly discovered evidence may be
brought only in the civil court, the criminal court lacked
either the authority or jurisdiction to rule on a petition
for a new trial and, consequently, its ruling can have
no res judicata effect on the civil proceeding. This court
has held that the improper filing of a petition for a new
trial with the criminal court ‘‘[does] not deprive the
court of subject matter jurisdiction . . . .’’ State v.
Gonzalez, 106 Conn. App. 238, 261, 941 A.2d 989, cert.
denied, 287 Conn. 903, 947 A.2d 343 (2008). This court
further explained, however, that ‘‘the trial court should
not exercise its authority in cases . . . where a party
fails properly to serve a writ of summons and complaint
on the adverse party in accordance with Practice Book
§ 42-55.’’ (Emphasis omitted; internal quotation marks
omitted.) Id. Thus, the criminal court in this case had
jurisdiction, but lacked the authority, to hear the peti-
tioner’s claim of newly discovered evidence. That deter-
mination, however, does not end our inquiry. We must
now determine whether the lack of authority in the
criminal court, in which the petitioner’s claim for a
new trial undisputedly was fully litigated,2 deprives a
petitioner of the opportunity to bring the same claim in
a second court with the authority to decide the petition.
To resolve this complex issue, which has not been
specifically addressed in Connecticut law, we begin
with an examination of why the criminal court lacked
the authority to grant the petitioner a new trial on the
basis of a claim of newly discovered evidence. In the
context of a petition for a new trial, courts are granted
authority by statute. See, e.g., Wojculewicz v. State, 142
Conn. 676, 677, 117 A.2d 439 (1955) (‘‘[p]roceedings in
this state for procuring a new trial, whether in a civil
or a criminal case, are controlled by statute’’). General
Statutes § 54-95 (a) authorizes defendants in criminal
cases to file petitions for new trials in the same manner
as in civil cases, and § 52-270 (a), which governs new
trials in civil actions, provides in relevant part: ‘‘The
Superior Court may grant a new trial of any action that
may come before it, for mispleading, the discovery of
new evidence . . . or for other reasonable cause,
according to the usual rules in such cases. . . .’’
Relatedly, Practice Book § 42-55 provides: ‘‘A request
for a new trial on the ground of newly discovered evi-
dence shall be called a petition for a new trial and shall
be brought in accordance with General Statutes § 52-
270. The judicial authority may grant the petition even
though an appeal is pending.’’ When claiming newly
discovered evidence, a party cannot obtain a new trial
except under Practice Book § 42-55. ‘‘It is well estab-
lished that to obtain a new trial on the ground of newly
discovered evidence, a defendant must bring a petition
under Practice Book § 42-55 . . . .’’ (Emphasis in origi-
nal; internal quotation marks omitted.) State v. Gonza-
lez, supra, 106 Conn. App. 260. Alternatively, a motion
for a new trial brought pursuant to Practice Book § 42-
53 is limited to trial errors and cannot be based on
newly discovered evidence. Id., 262.
Procedurally, a petition for a new trial is always
brought in a separate civil proceeding, while a motion
for a new trial is filed in the court in which the original
proceeding was held. ‘‘The petition [for a new trial] is
instituted by a writ and complaint served on the adverse
party; although such an action is collateral to the action
in which a new trial is sought, it is by its nature a
distinct proceeding. The judgment on the petition termi-
nates the suit which renders it final. On the contrary,
a motion for a new trial is filed in a case then in progress
or pending and is merely a gradation in that case leading
to a final judgment.’’ State v. Asherman, 180 Conn.
141, 144, 429 A.2d 810 (1980). For this reason, we have
particularly stressed in the past that ‘‘the distinction
between a petition and a motion is not one of mere
nomenclature’’; (internal quotation marks omitted]
State v. Gonzalez, supra, 106 Conn. App. 262; and that
‘‘the trial court should not exercise its authority in
cases . . . where a party fails properly to serve a writ
of summons and complaint on the adverse party in
accordance with Practice Book § 42-55.’’ (Emphasis in
original; internal quotation marks omitted.) Id., 261.
Compliance with the summons and complaint
requirements is not enough. We have held previously
that even when a petitioner properly served a writ of
summons and complaint in connection with a petition
for a new trial, the petition was actually a motion for
a new trial because the process was served under the
same docket number as the original proceeding and
‘‘failed to institute a separate and distinct proceeding
for the purpose of having the court determine whether
a new trial was warranted . . . .’’ Redding v. Ellfire,
98 Conn. App. 808, 820, 911 A.2d 1141 (2006). Similarly,
when the original trial court concludes that a motion for
a new trial is brought on the basis of ‘‘newly discovered
evidence, it lack[s] authority to consider the relief
sought by the defendant in his motion pursuant to Prac-
tice Book § 42-53.’’ State v. Bennett, 324 Conn. 744,
776–77, 155 A.3d 188 (2017).
Furthermore, it is never proper to bring a petition
for a new trial based on a claim of newly discovered
evidence in the criminal court. The procedural require-
ments of a writ of summons and complaint are not
available in the criminal courts; this service is filed
pursuant to the procedures of the civil courts. See Prac-
tice Book § 10-12. Relatedly, we have previously elabo-
rated that ‘‘[i]n an action on a petition for a new trial,
a petitioner is not a criminal defendant but rather is a
civil petitioner. . . . A proceeding on a petition for a
new trial, therefore, is not a criminal action. Rather, it
is a distinct proceeding that is commenced by the ser-
vice of civil process and is prosecuted as a civil action.’’
(Citation omitted; emphasis in original.) Small v. State,
101 Conn. App. 213, 217, 920 A.2d 1024 (2007), appeal
dismissed, 290 Conn. 128, 962 A.2d 80, cert. denied, 558
U.S. 842, 130 S. Ct. 102, 175 L. Ed. 2d 68 (2009).
In the absence of controlling precedent on the spe-
cific issue with which we are now faced, we turn to
cases in which a court’s authority has been discussed
in conjunction with its jurisdiction and cases presenting
analogous circumstances. Our Supreme Court has rec-
ognized the delineation between authority and jurisdic-
tion and, moreover, that both are necessary for a valid
decision. ‘‘Although related, the court’s authority to act
pursuant to a statute is different from its subject matter
jurisdiction. The power of the court to hear and deter-
mine, which is implicit in jurisdiction, is not to be con-
fused with the way in which that power must be exer-
cised in order to comply with the terms of the statute.’’
(Internal quotation marks omitted.) Amodio v. Amodio,
247 Conn. 724, 728, 724 A.2d 1084 (1999). Stated differ-
ently, although a court may properly exercise its subject
matter jurisdiction in a given matter, its decision could
nevertheless be invalid for want of authority if it
exceeds its authority in awarding a remedy. See New
England Pipe Corp. v. Northeast Corridor Foundation,
271 Conn. 329, 336, 857 A.2d 348 (2004) (‘‘Under [Gen-
eral Statutes] § 52-422, a trial court is empowered to
grant injunctive relief during an ongoing arbitration pro-
ceeding only when such relief is ‘necessary’ to protect
the rights of a party prior to the rendering of an award.
Conversely, if such relief is not ‘necessary’ to protect
a party’s rights during the pendency of the arbitration
proceeding, the trial court is not authorized to grant
relief under § 52-422.’’).
Moreover, underlying the concept of res judicata are
principles of finality and validity. 1 Restatement (Sec-
ond), Judgments § 12, comment (a), p. 116 (1982). There
is a strong jurisprudential interest in according finality
to a decision in a proceeding where the parties have
had a full opportunity to litigate the controversy on its
merits. Id. Yet, the principle of finality rests on the
premise that the proceeding had the sanction of law.
Id. ‘‘The essential problem is therefore one of selecting
which of the two principles [finality or validity] is to
be given greater emphasis.’’ Id., p. 117.
Our Supreme Court previously has addressed the dis-
tinction between authority and jurisdiction in the frame-
work of res judicata, albeit specifically in the context of
the family court. In Delahunty v. Massachusetts Mutual
Life Ins. Co., 236 Conn. 582, 587–88, 674 A.2d 1290
(1996), the family court certainly had subject matter
jurisdiction to adjudicate the dissolution matter; how-
ever, it did not have the authority to award certain
remedies. In particular, the plaintiff sought punitive,
double, and treble damages for fraud committed by her
husband during their marriage. Id., 585. These claims
required a jury trial, which was a procedure that was
not available to the plaintiff in her dissolution action.
Id., 593. Thus, the plaintiff subsequently brought a sec-
ond action in the civil court seeking these civil tort
damages. Id. The civil court applied res judicata, reason-
ing that the tort claims could have been brought in the
family court. Id., 586–87. Our Supreme Court, however,
disagreed, concluding that ‘‘because there are signifi-
cant differences between a tort action and a dissolution
action, the maintenance of a separate tort action will
not subject the courts and the defendant to the type of
piecemeal litigation that [res judicata] was intended to
prevent.’’ Id., 592. The court stressed that the primary
distinction between these actions was the difference in
remedies. Id. ‘‘A tort action, the purpose of which is to
redress a legal wrong by an award of damages, is not
based on the same underlying claim as an action for
dissolution, the purpose of which is to sever the marital
relationship, to fix the rights of the parties with respect
to alimony and child support, and to divide the marital
estate. Although in a dissolution action, the trial court
must consider the conduct of the parties, the judgment
in a dissolution action does not provide direct compen-
sation as such to a party for injuries suffered during
the marriage. Alimony is intended to provide economic
support for a dependent spouse, and the division of
marital property is intended to recognize and equitably
recompense the contributions of the parties to the mari-
tal partnership.’’ (Footnote omitted.) Id., 592–93. In
short, because the plaintiff in Delahunty could not
obtain the same remedies in her dissolution action as
she could in her tort action, she was not precluded by
res judicata from bringing her second claim.
As in Delahunty, the petitioner in the present case
could not obtain the relief that he requested from the
criminal court—a new trial based on a claim of newly
discovered evidence. To be sure, the hearings and the
legal analysis that the petitioner seeks in the civil court
may well be nearly identical to the proceedings in the
criminal court. Moreover, having fully litigated his claim
in the criminal court, the petitioner may arguably be a
‘‘litigant who is undeserving of the accompanying bene-
fit that will redound to him.’’ 1 Restatement (Second),
supra, § 12, comment (d), p. 122. Nonetheless, the crimi-
nal court did not have the authority to decide the motion
on its merits, nor to award the petitioner a new trial,
and it, therefore, could not have rendered a valid, final
decision on the motion for a new trial. For these rea-
sons, res judicata does not preclude the petitioner’s
petition for a new trial here.3
The judgment is reversed and the case is remanded
for further proceedings according to law.
In this opinion the other judges concurred.
1
On appeal, the petitioner raised the following five alternative reasons
for reversing the court’s judgment: (1) The state failed to meet its burden
of proof for summary judgment, (2) structural error in the trial court resulted
in prejudice per se, (3) because of public policy concerns, there should be
an exception to res judicata to protect against the type of errors that occurred
here, (4) this error was so pervasive and significant that the petitioner is
entitled to a new criminal trial, and (5) the criminal court violated the
petitioner’s due process rights. Because the improper application of res
judicata is dispositive, we need not address these additional claims.
2
We note that the criminal court was well-intentioned in its efforts to
immediately address the claim of witness bias.
3
The state argues that, even if res judicata does not apply, the petitioner
should nonetheless be precluded from challenging res judicata because (1)
the petitioner induced the erroneous ruling from the criminal court, and (2)
the petitioner has procedurally defaulted on this claim. We conclude that
neither of these doctrines apply to the present case.
First, ‘‘[t]he term induced error, or invited error, has been defined as [a]n
error that a party cannot complain of on appeal because the party, through
conduct, encouraged or prompted the trial court to make the [allegedly]
erroneous ruling. . . . It is well established that a party who induces an
error cannot be heard to later complain about that error. . . . The invited
error doctrine rests [on principles] of fairness, both to the trial court and
to the opposing party.’’ (Internal quotation marks omitted.) Independent
Party of CT—State Central v. Merrill, supra, 330 Conn. 724.
Notably, the doctrine of induced error is premised on fault for the error
lying solely with the challenging party. This element is not present in the
current case. To be sure, the petitioner filed the petition in the wrong court.
However, the petitioner subsequently corrected this error and properly filed
a motion for a new trial instead. Additionally, the state effectively argues
that, by bringing a motion for a new trial based on new evidence, the
petitioner induced the criminal court to unwittingly hold pointless hearings.
However, from the time that the petitioner initially filed a petition for a new
trial with the criminal court, the criminal court openly recognized that this
type of petition is solely filed in the civil court. Overall, it appears that there
is no single party at fault for the errors of the criminal court; instead, the
inertia of these hearings and the mutual mistake of all the parties involved
are the most likely culprits of these errors.
Second, procedural default does not apply, because the petitioner could
not have properly brought his claim of newly discovered evidence on direct
appeal. Procedural default applies where the ‘‘petitioner could have filed
such a motion ‘at any time,’ including the present time . . . [but] failed to
follow the proper procedures by which to correct his sentence or to preserve
his challenge to the sentence before having filed this petition . . . .’’ (Cita-
tion omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 39–40,
779 A.2d 80, 86 (2001). The petitioner had no right to the remedy he seeks
on direct appeal; it is only available through a collateral petition. Thus,
the petitioner could not have filed this petition at any time and has not
procedurally defaulted. See id., 39.