State files rebuttal fighting Cheshire killer Joshua Komisarjevsky’s claim for new trial

Joshua Komisarjevsky doesn’t deserve a new trial in the 2007 Cheshire murders, the state’s attorney’s office said Wednesday in a legal brief with the Supreme Court arguing to reject his appeal, which is based in part on the failure of the state to turn over a series of police phone calls from the morning three members of the Petit family were killed.

Komisarjevksy and Steven Hayes were convicted in the home invasion slayings of Jennifer Hawke-Petit and her daughters, Hayley Petit, 17, and Mikaela Petit, 11. Both men were sentenced to death, but later re-sentenced to life in prison without parole after the state Supreme Court abolished the death penalty.

Komisarjevsky’s appellate attorneys, Moira Buckley and John Holdridge, are arguing that Komisarjevsky deserves a new trial for several reasons, one of which was that police and prosecutors didn’t turn over several phone calls made by police who were responding to the Petit home on July 23, 2007. In the appeal, Komisarjevsky’s lawyers argue that the calls could have been used to impeach the credibility of the officers who testified at the trial.

Assistant State’s Attorney Marjorie Allen Dauster, in her 177-page rebuttal, said the missing calls wouldn’t have had any effect on the jury’s verdict. She wrote that the defense had plenty of evidence to raise questions about the police response to the Petit home.

“To the contrary, the nexus between the evidence of police response and motive to fabricate is weak, and the undisclosed evidence was cumulative to that used by the defendant at trial during cross examination and closing argument,” Dauster wrote.

“Where the purpose of impeachment evidence is to have the jury aware of facts which might motivate state witnesses to testify falsely, the defendant had ample facts to make his arguments about the police motives in this case.”

Komisarjevsky’s attorneys argued that a number of taped calls coming in to the police dispatch center but never disclosed to the defense could have helped bolster the defense argument that Cheshire’s response to the home invasion was “woefully inadequate” and would have provided defense attorneys fodder for cross examining officers. The existence of the tapes was uncovered by The Courant.

Most of the calls came in to a second dispatch line at the police station and were made to or from officers’ cellphones. One call provided new information on how close an officer was to a bank where Hayes took Jennifer Hawke-Petit hours into the home invasion.

That call shows that police Sgt. Chris Cote was within blocks of the Bank of America branch at about 9:25 a.m., or slightly more than one minute after Hawke-Petit left the bank with $15,000 in cash. Hayes had forced her to drive to the bank and withdraw money. He waited outside the bank in the family’s Chrysler Pacifica and drove them back to the Petit home, where Komisarjevsky had stayed with the two girls. The girls’ father, Dr. William Petit Jr., now a state legislator, had been beaten.

Hawke-Petit alerted a bank teller that her family was being held hostage. The calls withheld from the defense also showed that officers Donald Miller and Robert Regan called Cote on his cellphone at 9:25:15, before an all-points bulletin had been issued, to tell him that Hawke-Petit had “just left the bank, possibly with the captors in a Chrysler Pacifica” and that they were heading to the Petit home.

Cote responded that he was not too far from the bank. The calls do not make it clear if Cote saw the Pacifica.

Other calls showed that one of the department’s hostage negotiators called the station to see if he was needed and was told he was not, and that two SWAT team members on a private job also called to see if they were needed and were told not to come in. They eventually ignored that order and responded to the scene.

In their brief, defense attorneys argued that by failing to “disclose these critical calls, the state corrupted the truth-seeking function of the trial and violated Komisarjevsky’s rights.”

The attorneys handling Komisarjevsky’s appeal said they learned about the police calls through a 2013 Courant article. In 2014, Komisarjevsky’s attorneys filed a motion with the state Supreme Court seeking a hearing to determine why the calls were not turned over to the defense.

At the time, the high court sent the case back to the trial judge, Jon C.Blue.

Blue held a hearing and ruled that Komisarjevsky’s trial lawyers did not receive recordings of at least four calls from the morning of the home invasion.

The judge said prosecutors’ failure to disclose the calls showed no wrongdoing but was the result of human error. He said the defense had “plenty of clues” that the calls existed — testimony showed the calls were turned over to defense attorneys for Hayes — but that there was “no witness” who saw the compact discs with the calls handed over.