State v. Crudup

• Decision Date: 27 January 2004
• Docket Number: (AC 23263)
• Citation: 838 A.2d 1053,81 Conn. App. 248
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. PAUL CRUDUP

81 Conn. App. 248

838 A.2d 1053

STATE OF CONNECTICUT v. PAUL CRUDUP

(AC 23263)

Appellate Court of Connecticut

Argued September 10, 2003

Officially released January 27, 2004

Bishop, DiPentima and Dupont, Js.

Nicole Donzello and Robert Rehr, certified legal interns, with whom was G. Douglas Nash, special public defender, for the appellant (defendant).

Ronald G. Weller, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and John C. Lion, assistant state's attorney, for the appellee (state).

Opinion

DUPONT, J.

After a jury trial, the defendant, Paul Crudup, was convicted of one count of breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181 (a) (3) and one count of threatening in violation of General Statutes (Rev. to 1999) § 53a-62 (a) (2).¹ The conviction and the sentence imposed stem from an event occurring on December 30, 2001.² On appeal, the defendant claims that (1) the sentence violates the double jeopardy clause of the fifth amendment to the United States constitution and the Connecticut constitution's guarantees against double jeopardy, (2) the trial court incorrectly charged the jury on breach of the peace and threatening because it failed to provide a mandated judicial gloss and (3) the threatening statute, § 53a-62 (a) (2), is unconstitutionally vague. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The defendant was the father of a child from a relationship with his one time girlfriend, Sherrell Jones. At the time of the alleged incidents, Jones, her son (from a different relationship), the defendant's daughter and the victim, Terrance Jackson, lived together on the first floor of a three-family house in Hamden. The defendant knew of the living arrangement and knew that Jackson had been convicted of a felony.³ The defendant also learned that Jackson was developing a close relationship with his daughter and that the defendant's daughter had begun to call Jackson "daddy."

On December 29, 2001, the defendant called the Jackson-Jones residence. After several telephone calls, during which Jackson hung up at least twice after partial conversations, the defendant and Jackson agreed to talk out their problems. They agreed to meet at the "mudhole" (a specific part of Hamden) the next day. During the telephone conversation, the defendant allegedly said to Jackson, "I ought to pop you both right now," or words to that effect, while on the telephone.⁴ The next day, December 30, 2001, instead of meeting at the mudhole, the defendant came unannounced to the Jackson-Jones household by car. There were two other men in the car. The defendant knocked on the door of the apartment. Jackson answered, and the two had a conversation on the front lawn of the residence, talking over the same problem they had discussed the night before, specifically, that the defendant's daughter should not be calling Jackson "daddy" and that the defendant "didn't condone that kind of stuff" (referring to Jackson's previous convictions). The defendant put his hand in his pocket during the conversation, and Jackson felt threatened and called the police. In the course of and toward the end of the conversation, the defendant again said to Jackson, "I should pop you both right now," and, on leaving, said, "I see you. I see you."⁵

I

The defendant claims that his conviction for threatening in violation of § 53a-62 (a) (2) and breach of the peace in violation of § 53a-181 (a) (3) violates the proscription of the fifth amendment to the United States constitution and the Connecticut constitution's guarantees against double jeopardy⁶ because he received two punishments for one act. Neither the parties nor we are aware of any appellate decision that has decided that precise issue.⁷ If the defendant is correct, the sentence on the breach of the peace charge must be vacated and the breach of the peace conviction must be merged with the threatening conviction. See State v. Chicano, 216 Conn. 699, 725, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991). That claim, therefore, will be discussed before any claimed infirmity in the court's charge on breach of the peace because the latter claim would be rendered moot if the defendant's claim of double jeopardy were established.

The defendant did not preserve his claim at trial and now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Such review is warranted. A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial; see State v. Snook, 210 Conn. 244, 263, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989); even if the sentence for one crime was concurrent with the sentence for the second crime. State v. John, 210 Conn. 652, 694-95, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Amaral, 179 Conn. 239, 241-42, 425 A.2d 1293 (1979).⁸ Because the claim presents an issue of law, our review is plenary. See State v. Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002).

The double jeopardy clause of the fifth amendment to the constitution "protects against . . . multiple punishments for the same offense." (Internal quotation marks omitted.) Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). That is one of many permutations of a double jeopardy claim. A conclusion that double jeopardy exists requires the presence of two conditions. First, both crimes must arise out of the same incident. Here, counts three and four of the amended long form information, the counts on which the defendant was convicted, both alleged that the crime took place "on or about the 30th day of December, 2001, during the afternoon hours . . . ." Thus, the first prong of the double jeopardy analysis is met. See State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985); State v. Flynn, 14 Conn. App. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).

The second condition for a double jeopardy violation is that the charged crimes must be the same offense. State v. Devino, supra, 195 Conn. 74. The test for whether the same act or transaction constitutes a violation of two distinct statutes is whether each statute requires proof of a fact that the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932). If the two crimes stand in the relationship of greater and lesser included offenses, then the lesser offense is by definition the same as the greater for purposes of double jeopardy. Phrased differently, the test as to the second condition is whether it is possible to commit the greater offense, in the manner described in the information, without first having committed the lesser offense. State v. Miranda, 260 Conn. 93, 125, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002). In conducting the inquiry, we look to statutes and the information, not to the evidence presented at trial. State v. Denson, 67 Conn. App. 803, 809, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002). The issue, though constitutional, becomes an exercise in statutory construction. State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985). The Blockburger analysis, however, is not controlling when the legislative intent is clear on the face of the statute. It is also not controlling when another section of the same statute or another statute dictates that separate penalties are warranted because cumulative punishment was intended by the legislature. State v. Greco, 216 Conn. 288, 293, 579 A.2d 84 (1990); see also State v. Woodson, 227 Conn. 1, 11-13, 629 A.2d 386 (1993). A Blockburger analysis would not be necessary if the legislative intent was to punish both crimes separately. See Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985).

There is no indication that the legislature did not intend to create separate crimes prohibited by §§ 53a-181 (a) (3) and 53a-62 (a) (2). If two subparagraphs in one statute can be regarded as separate crimes, it follows that two distinct statutes can prohibit separate crimes, given no legislative intent to the contrary. See State v. Woodson, supra, 227 Conn. 11-12. The societal harm of a crime of violence is a harm different from that of a crime intended to annoy or to inconvenience. See id., 12. We cannot ascribe definitively, however, in this case, an intent of the legislature to create one crime or two, or to bar or to allow prosecution and separate penalties for both crimes.

We must consider, therefore, whether, as charged in the information, the defendant could threaten to commit a crime of violence, namely, assault, with the intent to terrorize another, without first having threatened to commit, with any one of three different intents, any crime against a person,⁹ and whether each statute requires proof of a fact that the other does not. The defendant in count three was charged as follows. He "threatened to commit any crime of violence to wit: assault, with the intent to terrorize another . . . ." In count four, it was charged that with "the intent to cause inconvenience, annoyance, or alarm, [he] threatened to commit any crime against another person . . . ."

Thus, the third count of the information limits the language of § 53a-62 (a) (2) to a threat to commit a crime of violence against another, specifically, to the crime of assault, whereas the fourth count does not require a threat of any crime of violence. The third count requires an intent to terrorize another, whereas the fourth count requires an intent to cause inconvenience, annoyance or alarm. Both counts require a threat. Count four may be proven...