State v. Chicano

• Citation: 584 A.2d 425,216 Conn. 699
• Decision Date: 25 December 1990
• Docket Number: No. 13663,13663
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Mark J. CHICANO.

Page 425

584 A.2d 425

216 Conn. 699

STATE of Connecticut v. Mark J. CHICANO.

No. 13663.

Supreme Court of Connecticut.

Argued Oct. 4, 1990.

Decided Dec. 25, 1990.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Mary H. Lesser, Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Herbert Carlson and Dennis O'Connor, Asst. State's Attys., for appellee (State).

Before PETERS, C.J., and CALLAHAN, GLASS, COVELLO and HULL, JJ.

CALLAHAN, Justice.

The defendant, Mark J. Chicano, was charged in a substitute information with three counts of the crime of felony murder in violation of General Statutes § 53a-54c, ¹ three counts of the crime of murder in violation of General Statutes § 53a-54a(a), ² one count of the crime of capital felony in violation of General Statutes § 53a-54b(8), ³ one count of the crime of injury to a child in violation of General Statutes § 53-21, ⁴ and one count of the crime of burglary in the second degree in violation of General Statutes § 53a-102(a). ⁵ After a trial before a three judge panel, the defendant was convicted of three counts of felony murder, three counts of manslaughter in the first degree in violation of General Statutes § 53a-55(a)(2), ⁶ one count of injury to a child and one count of burglary in the second degree. With respect to the intentional murder charges, the three judge panel found that the state had proven the elements of murder but convicted the defendant of manslaughter in the first degree because it found that he had proven the affirmative defense of extreme emotional disturbance as set forth in § 53a-54a(a). The defendant was acquitted of the capital felony charge on the basis of the court's conclusion that he was guilty of manslaughter in the first degree rather than murder. The defendant was sentenced to three consecutive terms of sixty years imprisonment for the felony murder convictions, three twenty year terms of imprisonment for the manslaughter convictions, to be served consecutive to each other and concurrent to the three felony murder sentences, ten years for the injury to a child conviction and ten years for the burglary conviction. The panel ordered that the injury to a child and burglary sentences run consecutive to each other and to the manslaughter sentences but concurrent to the felony murder sentences. The defendant's total effective sentence of 180 years imprisonment, therefore, is based on his three convictions for felony murder. The defendant appealed to this court pursuant to General Statutes § 51-199(b)(3). ⁷

On appeal, the defendant claims that his rights guaranteed by the double jeopardy clause were violated by: (1) his convictions for both felony murder and manslaughter in the first degree; and (2) his convictions for both injury to a child and manslaughter in the first degree. The defendant also claimed that the trial court erred in denying his motion for a psychiatric examination pursuant to General Statutes § 17-244. He subsequently withdrew this last claim of error.

We agree with the defendant that his rights under the double jeopardy clause were violated by his conviction for both felony murder and manslaughter in the first degree and we therefore remand the case to the trial court with direction to combine his convictions for three counts of manslaughter in the first degree with his convictions for three counts of felony murder and vacate his manslaughter sentences. Combining these convictions will leave unchanged the total effective sentence of imprisonment. In view of our disposition of the defendant's first claim, we conclude that his second claim is moot and therefore do not address it.

The three judge panel reasonably could have found the following facts. The defendant and Ellen Babbit had been involved in a romantic relationship that had deteriorated by the end of 1986. At approximately 2 a.m. on February 28, 1987, the defendant went to see Babbit at her home in East Windsor. While he was outside her home, he saw Babbit's new boyfriend, Raymond Arnold, arrive by car and enter the house. The defendant then waited outside a bedroom window where he overheard the sounds of sexual activity. After waiting for half an hour, the defendant went into the house and hid in the bathroom for approximately one hour. He then went into the bedroom where Babbit and Arnold were now sleeping and hit Arnold on the head with a crowbar. When Babbit called out Arnold's name and tried to protect him, the defendant became enraged and continued to strike Arnold, causing his death. The defendant then began punching and kicking Babbit and attempted to bind her. At this point Babbit's eleven year old son, Mark Babbit, Jr., entered the bedroom and screamed. Attempting to quiet the child, the defendant killed him by strangulation. When Ellen Babbit continued to resist his efforts to restrain her, the defendant struck her on the head twice with the crowbar and killed her.

I

A

The defendant argues that his conviction and sentencing for three counts of felony murder and three counts of manslaughter in the first degree violated his state and federal constitutional rights against double jeopardy. The defendant admits that this claim was not raised at trial, but maintains that it is reviewable under the criteria set forth in State v. Golding, 213 Conn. 233, 238-42, 567 A.2d 823 (1989), which restated the guidelines for review established in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). In Golding, we held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40, 567 A.2d 823. We conclude that the defendant's double jeopardy claim is reviewable under Golding and that his fundamental constitutional right against double jeopardy was clearly violated by his convictions for both felony murder and manslaughter.

The state concedes that the first two prongs of the Golding test are satisfied inasmuch as: (1) the record is adequate for review of the double jeopardy claim, which requires reference only to the relevant statutes, the information, and the bill of particulars; State v. John, 210 Conn. 652, 695, 557 A.2d 93, cert. denied, --- U.S. ----, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989); and (2) the double jeopardy claim involves a fundamental constitutional right. The state does not make a harmless error argument but asserts that this claim is not reviewable because the alleged double jeopardy violation did not clearly deprive the defendant of a fair trial. We disagree.

This court has held that if double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable under State v. Evans, supra. State v. Snook, 210 Conn. 244, 263, 555 A.2d 390, cert. denied, --- U.S. ----, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989); State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v. McCall, 187 Conn. 73, 89, 444 A.2d 896 (1982). The Evans test for reviewability applied in the cited cases was whether "the record adequately supports a claim that a litigant has clearly been deprived of a fundamental constitutional right and a fair trial." (Emphasis added.) State v. Evans, supra, 165 Conn. at 70, 327 A.2d 576. On the basis of that precedent, we conclude that the third prong of the Golding test is satisfied and that the defendant's double jeopardy claim is reviewable.

The double jeopardy clause of the fifth amendment to the United States constitution provides: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." This constitutional provision is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 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). This constitutional guarantee serves three separate functions: (1) " '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 [in a single trial].' North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, [2076] 23 L.Ed.2d 656 (1969)." State v. Lonergan, 213 Conn. 74, 78-79, 566 A.2d 677 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990).

The defendant's claim that the double jeopardy clause bars his convictions for both felony murder and manslaughter in the first degree implicates the third type of constitutional protection. "With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended." Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74 L.Ed.2d 535 (1983). " ' "Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are...