State v. Cody M., SC 20213

• Court: Supreme Court of Connecticut
• Decision Date: 21 September 2020
• Docket Number: SC 20213
• Parties: STATE OF CONNECTICUT v. CODY M.

STATE OF CONNECTICUT
v.
CODY M.^*

SC 20213

Supreme Court of Connecticut

Argued November 14, 2019
September 21, 2020^***

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins and Ecker, Js.^**

Syllabus

Convicted, after a jury trial, of two counts of violating a standing criminal protective order and two counts of threatening in the second degree, the defendant appealed to the Appellate Court, claiming, inter alia, that his conviction of two counts of violating a protective order violated the constitutional prohibition against double jeopardy and that the trial court improperly instructed the jury as to the one of the counts of violating a protective order by incorrectly defining the term "harassing." The defendant's conviction stemmed from his actions toward the victim when they appeared before a juvenile court for a hearing relating to their children. At the time, the defendant was subject to a standing criminal protective order that, with limited exceptions, prohibited him from contacting the victim in any manner and from threatening or harassing her. As the hearing began, the defendant attempted to engage in small talk with the victim, telling her that he still loved her and asking her why she had blocked his phone calls, but she ignored him. The defendant's tone then changed, he whispered to the victim that she was going to have problems, and, when she looked at him, he mouthed that he was going to kill her. The Appellate Court affirmed the judgment of conviction, concluding, inter alia, that the defendant's double jeopardy claim failed because his conviction of each count of violating a protective order was supported by a separate and distinct act even though those acts arose from the same conversation. The Appellate Court also concluded that the trial court did not improperly instruct the jury as to the definition of the term "harassing." On the granting of certification, the defendant appealed to this court. Held:

1. The Appellate Court correctly concluded that the defendant's conviction of two counts of violating a standing criminal protective order did not violate the constitutional prohibition against double jeopardy: because the purpose of the statute (§ 53a-223a) under which the defendant was convicted is to protect victims of domestic violence by increasing the penalty for violating protective orders, the legislature intended to punish separately each discrete act that violates a protective order, rather than to punish only the course of action that those acts constitute, and, therefore, conviction of multiple counts is permitted for distinct acts that constitute separate violations of § 53a-223a; in the present case, the defendant's statements, although made in quick succession, constituted two distinct acts in violation of two different conditions of the protective order and, thus, were separately punishable, as the defendant's act of whispering to the victim that he loved her and asking her why she had blocked his phone calls violated the protective order's no contact provision, and the defendant's escalation of his behavior by asserting that she was going to have problems and mouthing that he would kill her was in violation of the order's provision prohibiting him from threatening the victim.

2. The defendant could not prevail on his claim that the Appellate Court improperly upheld the trial court's jury instruction as to the second count of violating a standing criminal protective order because, even if the trial court incorrectly defined the term "harassing," any error was harmless beyond a reasonable doubt; the state having alleged in that second count that the defendant had violated the protective order by either threatening or harassing the victim, and the jury having found the defendant guilty of threatening in the second degree on the basis of the same underlying conduct as that on which the second count was based, the jury necessarily found the defendant guilty of threatening the victim as charged in the second count.

(Two justices concurring and dissenting in one opinion)

Page 2

Procedural History

Substitute information charging the defendant with two counts each of the crimes of criminal violation of a standing criminal protective order and threatening in the second degree, brought to the Superior Court in the judicial district of New Haven and tried to the jury before O'Keefe, J.; verdict and judgment of guilty, from which the defendant appealed to the Appellate Court, Sheldon, Elgo and Flynn, Js., which affirmed the trial court's judgment, and the defendant, on the granting of certification, appealed to this court. Affirmed.

John L. Cordani, Jr., assigned counsel, for the appellant (defendant).

Robert J. Scheinblum, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, Laura DeLeo, senior assistant state's attorney, and Bruce R. Lockwood, supervisory assistant state's attorney, for the appellee (state).

Page 3

Opinion

ROBINSON, C. J. The principal issue in this certified appeal is whether multiple convictions for violation of a standing criminal protective order, arising from a series of statements made during a court hearing by the defendant, Cody M., to the person protected by the order, violate the constitutional protection from double jeopardy. The Appellate Court affirmed the judgment, rendered after a jury trial, convicting the defendant of two counts of criminal violation of a standing criminal protective order in violation of General Statutes § 53a-223a,¹ one count of threatening in the second degree in violation of General Statutes (Rev. to 2015) § 53a-62 (a) (2),² and one count of threatening in the second degree in violation of § 53a-62 (a) (3). State v. Meadows, 185 Conn. App. 287, 290, 197 A.3d 464 (2018). We granted the defendant's petition for certification to appeal,³ and the defendant now claims that the Appellate Court incorrectly concluded that (1) his conviction of two counts of violating a standing criminal protective order did not violate his constitutional right against double jeopardy, and (2) the trial court's jury instruction correctly defined the term "harassing" with respect to the penalty enhancement under § 53a-223a (c) (2). We conclude that the defendant's conviction of two counts of violating a standing criminal protective order did not violate his right against double jeopardy and that any possible instructional error in the trial court's definition of "harassing" was harmless, and, accordingly, we affirm the judgment of the Appellate Court.

The record reveals the following facts, which the jury reasonably could have found, and procedural history. On May 12, 2015, the trial court, Keegan, J., issued a standing criminal protective order against the defendant, ordering that he, inter alia, "not assault, threaten, abuse, harass, follow, interfere with . . . stalk" or "contact . . . in any manner, including by written, electronic or telephone contact," the victim, who is the mother of his children. One exception to the order permitted contact with the victim "for purposes of visitation, as directed by [the] family court." Subsequently, on September 1, 2015, both the victim and the defendant were present at a juvenile court hearing. The defendant, who was incarcerated at the time, was brought to the hearing and placed near the victim.

When the hearing began, the defendant tried to engage in "small talk" with the victim, but she ignored him and did not make eye contact. The victim testified that the defendant had "whispered to me that he still loved me and had asked me why I had a block on the phone and that I said I would never do this to him . . . . [W]hen I wasn't responding to him, his tone changed and he told me that 'you're going to have problems when I get home, bitch,' and . . . I looked at him, and he told me that he was going to fucking kill me."

Page 4

The conversation was only as loud as a whisper, except for the last statement, which the defendant mouthed to the victim. The victim then told the defendant to stop threatening her, and he responded that he was not. The victim thought the statements were threats, and she was afraid. At some point, an assistant attorney general present for the hearing informed the court that the defendant was speaking to the victim.

After the hearing ended, a judicial marshal removed the defendant from the courtroom. Once the defendant was outside of the courtroom, he continued to make remarks about the victim, saying, "I'm gonna get that bitch when I get out. . . . I'm gonna kill that fucking bitch, I'm gonna fuck that bitch up, I'm gonna fucking kill her." Subsequently, the defendant reiterated these statements while meeting with a social worker, also stating that, "if he's not with [the victim], he's going to make sure nobody else is with her," and that, "if she chooses not to be with him, he will beat the f'ing shit out of her." He also said "he would make her another Tracey Morton."⁴

In the operative information,⁵ the state charged the defendant with two counts of violation of a standing criminal protective order and two counts of threatening in the second degree.⁶ The case was tried to a jury, which found the defendant guilty on all four counts, and the trial court rendered a judgment of conviction in accordance with the jury's verdict.⁷

The defendant appealed from the judgment of conviction to the Appellate Court, which affirmed the judgment of conviction. State v. Meadows, supra, 185 Conn. App. 308. With respect to the issues relevant to this certified appeal, the Appellate Court first rejected the defendant's claim that his two convictions for violating a standing criminal protective order were a double jeopardy violation, concluding that each conviction was supported by a "separate and distinct [act], and it matters not that they arose from the same conversation."⁸ Id., 298. The Appellate Court also disagreed with the defendant's claim that the trial court...