01/12/2012 THU 08:38 FAE 209 887 6240 ‘i CRIMINAL DIV STATE OF CONNECTICUT DOCKET NO.: CRO7-0241860 ‘SUPERIOR COURT, PART A STATE OF CONNECTICUT : JUDICIAL DISTRICT OF NEW HAVEN v. 1: AT NEW HAVEN JOSHUA KOMISARJEVSKY January 11, 2012 DEFENDANT JOSHUA KOMISARJEVSKY'S ‘MEMORANDUM IN SUPPORT OF MOTION FOR A NEW TRIAL, Introduction: The defendant Jeshua Komisarjevsky, pursuant to Practice Book § 42.53, has moved thatthe Court grant the defendant @ new tial ofthe guily-not gully phase of the case. The defendant has also moved, ifthe Court should deny this motion, thatthe Court grant him a new tial ofthe penally phase ofthe case. This memorandum is submited in euppert. Nothing in this mation or memarandiim should be constued as 2a relingulshment or waiver of any claim or argument Mr. Komisarjovsky has raised to date, General Principles Governing New Trial Motions: Practice Book § 42-53 provides: (2) Upon motion of the defendant, the judiclal authority may grant a nev trial if itis required in ugliest of New Hewon ihointovouts fusion, Unless the defendants SUPERIOR. COURT roncomptance th ties rales orth other requirements of law bars his or her asserting the dav 11 we int odie euorty shal grant te moto: (1) Foran error by reason of which the CHIEF CLERK'S OFFICE defendant is constitutionally entiied fo a new trial; or (2) For any other error which the defendant ean establish was materially injurious to him or her. Boos01/12/2012 THU 08:10 FAK 203 887 6240 NH CRIMINAL BIV Boos 2 "A motion for a new tial Is addressed fo the sound discretion of the tral court and is notto be granted except on substantial grounds.” (Internal quotation marks omitted) State v, Newsome, 238 Conn. 588, 628, 682 A.2d 872 (1998). "The general rue inthis state is that a mistrial should be granted only when itis apparent to the court that some ‘ceurrence during the tial has so prejudiced a party that he can no longer receive a fair tral. (Internal quotation marks omitted.) Stale v. Boone, 16 Gonn.App. 34, 48, 544 [A.24 217, cork denied, 209 Conn, 811, 550 A.2d 1084 (1988). Mr. Komisarjevsky requests thatthe Court grant him a new trial on the following grounds.* 4. This Court should grant a new trial because Mr. Komisarjovsky a constitutionally and statutorily mandated probable cause hearing, despite his repeated requests that he be afforded such a hearing. Mr. Komisarjevsky waived a probable cause hearing with respect to the charges? ‘of the original Information fled against him, When the first supereeding information was 7 Bach of the issues raised herein derives from issues argued during the course of the pretrial or trial proceedings in the case, We repeat those arguments here (in briefer form) to the extent that the Court has a changed perspective on its earlier rulings or that the cumulative effect of the trial and the legal errors arising therefrom perauade the Court that a new tral is warranted. Consistent with the Introduction, we have not ralsed in this motion all the issues which arose during the course of the trial, and, by Including certain issues in this motion, we do not abandon any Issue or argument heretofore raised andior properly preserved 2 For simplicity’ sake, the term ‘charges” refers herein to those counts alleging offenses that are punishable by death or by if Imprisonment, Le. the counts which require afnding of probable cause in order tobe prosecuted. Each ofthe informations contains additional counts (arson, bursary, sexual assault), counts which do not tigger the requirement ofa probable cause hearing, and those counts are not encompassed by our use ofthe term “charges.”01/12/2012 Ta 08:19 FAX 209 667 e240 Na caIMDNAL DIV 3 filed, however, he demanded a probable cause hearing prior to being put to plea and Prior to his being required to proceed to trial on the charges ofthat superseding Information. Following briefing and argument, the Court held that Mr. Komisarjevsky, having waived probable cause hearing on the charges of the original information, was ‘ot entitled o a determination of probable cause on the charges of the superseding Information? ‘The state filed second and third superseding informations, and Mr. Komisarjevsky requested a probable cause hearing with respect to each, ‘The third superseding information, on which Mr. Kemisarjevsky stood tral and on hich he faced a verdict of death or life imprisonment without the possibilty of release, contains the same capital charges made In the eriginal information, although the languege of the charyes was altered, Some of the alterations are significant. For ‘example, in count six ofthe original information, the State's Attorney had “turther accuse(a] Joshua Komisarjevsky of Capital Felony and charge(al that... . the said Steven Hayes did murder a person ... in the course of the commission of sexual assault in the frst degree. ...."in violation of General Statutes § 53a-54b(6). (Emphasis added.) The corresponding count ofthe third superseding information, count 14, also alleges a violation of General Statutes § §3a-542(6), but in that count the State's Attorney “accuses Joshua Komisarjevsky of Capital Felony and charges that tr. Komisarjevsky took an interlocutory appeal from that decision, AC33603, ‘The Appeliate Court, on September 1, 2011, granted the state's motion to dismise our ‘original appeal for want of a final judgment.