State v. Alvarez, (SC 16406)

• Citation: 257 Conn. 782,778 A.2d 938
• Decision Date: 28 August 2001
• Docket Number: (SC 16406)
• Court: Supreme Court of Connecticut
• Parties: STATE OF CONNECTICUT v. WASHINGTON ALVAREZ

257 Conn. 782

778 A.2d 938

STATE OF CONNECTICUT v. WASHINGTON ALVAREZ

(SC 16406)

Supreme Court of Connecticut.

Argued May 29, 2001.

Officially released August 28, 2001.

Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.

Robert S. Bello, with whom, on the brief, were Thomas M. Cassone and Lawrence M. Lapine, for the appellant (defendant). Lisa A. Riggione, senior assistant state's attorney, with whom, on the brief, were Eugene J. Callahan, state's attorney, and James Bernardi, senior assistant state's attorney, for the appellee (state).

Opinion

VERTEFEUILLE, J.

The dispositive issue in this interlocutory appeal is whether the defendant's prosecution for manslaughter in the first degree is barred by the federal constitutional prohibition against double jeopardy where he pleaded guilty to assault in the first degree and was convicted and sentenced on that charge, only later to be charged with manslaughter in the first degree after the victim of the assault died following the defendant's conviction. The defendant appeals¹ from the decision of the trial court denying his motion to dismiss the charge of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (1).² We affirm the decision of the trial court.

The defendant, Washington Alvarez, claims that, because he already had entered a plea of guilty to, and had been found guilty of, inter alia, the crime of assault in the first degree in connection with the beating of the victim, Mathew Kosbob, the trial court improperly denied his motion to dismiss the subsequent charge of manslaughter in the first degree. The manslaughter information was filed by the state following the victim's death, from the consequences of the assault, approximately eighteen months after the defendant's assault conviction. Specifically, the defendant contends that this prosecution for manslaughter in the first degree violates the prohibition against double jeopardy because it: (1) subjects him to successive prosecutions for the same offense; and (2) subjects him to multiple punishments for the same offense. In addition, the defendant also claims that the prosecution for manslaughter violates his right to due process in that he has a right to the sentence to which he agreed when he pleaded guilty to the initial charges of assault in the first degree, kidnapping and conspiracy because he did so with the expectation that he would not be prosecuted on any additional charges if the victim later died. For the reasons that follow, we disagree with the defendant's claims.

In 1997, the defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (4),³ kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A),⁴ and conspiracy to commit assault in the first degree and kidnapping in the first degree in violation of General Statutes §§ 53a-48 (a),⁵ 53a-92 (a) (2) (A) and 53a-59 (a) (1). These charges arose out of an incident involving the victim that had occurred in July, 1995. The defendant pleaded guilty to the charged offenses, and he was sentenced to a total effective sentence on all convictions of twenty-five years, suspended after fifteen years, followed by five years probation.

After the defendant's conviction on those charges, the victim died in November, 1998, from the consequences of the 1995 assault. The state then filed the information that is the subject of the motion to dismiss in the present case, charging the defendant with manslaughter in the first degree in violation of § 53a-55 (a) (1). The defendant moved to dismiss this second prosecution on the grounds that it violated principles of double jeopardy and due process under the federal and state constitutions.⁶ The trial court denied the defendant's motion to dismiss, and this interlocutory appeal followed.⁷

The following facts and procedural history, as set forth by the trial court in its memorandum of decision denying the motion to dismiss, are relevant to this appeal. "[The defendant], together with [three] others, had been arrested on July 29, 1995, because of an assault on the victim .... The assault occurred in the evening hours of July 28, 1995. Among other injuries resulting from the assault, the victim sustained a severe craniocerebral trauma and, shortly after the assault, lapsed into a coma of several months duration. He slowly regained some consciousness in mid-December of 1995, but remained hospitalized in a `vegetative' state. He was fed intravenously and breathed with the assistance of a respirator through a tracheal tube. He lingered as a patient in a rehabilitative hospital in this condition until his death on November 23, 1998. The autopsy listed the cause of death as `delayed medical complications of craniocerebral trauma' and the manner of death as [a] `homicide.'

"In March, 1997, while the victim was still hospitalized, the state filed [an] amended [information] against [the defendant] charging the crimes of (1) assault in the first degree while aided by two or more persons actually present and by means of a dangerous instrument; (2) kidnapping in the first degree; and (3) conspiracy to commit assault in the first degree and kidnapping in the first degree.

"On March 21, 1997, [the defendant] entered a plea of guilty to each of the three counts. On June 26, 1997, [the defendant] was sentenced on the kidnapping in the first degree count to incarceration for twenty-five years, execution suspended after fifteen years, and probation on the unexecuted portion for five years. On the counts of assault in the first degree and conspiracy to commit assault in the first degree, the defendant was sentenced to fifteen years on each count to run concurrently with the kidnapping count, [for] a total effective sentence of twenty-five years, suspended after fifteen years, and probation on the unexecuted portion of the sentence for five years."

The trial court also stated: "After the death of the victim ... the state secured the issuance of [an] arrest [warrant] charging [the defendant] with the crime of manslaughter in the first degree. It is the information filed on the basis of [this warrant], alleging that with intent to cause serious physical injury to [the victim], he caused the death of [the victim], that [the defendant] seeks to have dismissed." The trial court determined that the subsequent prosecution for manslaughter did not violate the defendant's constitutional protection against double jeopardy or violate his due process rights.

I

The defendant first claims that his prosecution for manslaughter in the first degree violates the prohibition against double jeopardy because it subjects him both to a successive prosecution and a multiple punishment for the same offense. We disagree with his successive prosecution claim and do not decide his multiple punishment claim.

"The double jeopardy clause of the fifth amendment to the United States constitution provides: `[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ....' The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed.2d 707 (1969). `Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed.2d 235 (1962).' State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); see also State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995) (right to protection against double jeopardy is implicit in due process guarantees of state constitution)." State v. Crawford, 257 Conn. 769, 774, 778 A.2d 947 (2001).

"We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 [89 S. Ct. 2072, 23 L. Ed.2d 656] (1969) .... These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. United States v. Wilson, 420 U.S. 332, 339 [95 S. Ct. 1013, 43 L. Ed.2d 232] (1975). The Clause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. United States v. DiFrancesco, 449 U.S. 117, 136 [101 S. Ct. 426, 66 L. Ed.2d 328] (1980)." (Internal quotation marks omitted.) Schiro v. Farley, 510 U.S. 222, 229-30, 114 S. Ct. 783, 127 L. Ed.2d 47 (1994). In the present case, the defendant makes both a successive prosecution and a multiple punishment claim.

A

We first turn to the defendant's claim that the state's prosecution of the manslaughter charge violates the prohibition against double jeopardy because it subjects him to a successive prosecution for the same offense. Specifically, the defendant contends that: (1) manslaughter in the first degree constitutes the same offense as assault in the first degree for double jeopardy purposes;⁸ and (2) in the alternative, the prosecution for manslaughter in the first degree should be prohibited under the principles enunciated in State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed.2d 267 (1990), because the same evidence that was offered to prove assault in the first degree in the defendant's initial prosecution will be the sole evidence offered to prove manslaughter in the first degree in...