State v. Dash

• Decision Date: 29 July 1997
• Docket Number: No. 15569,15569
• Citation: 698 A.2d 297,242 Conn. 143
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut, v. John DASH.

Page 297

698 A.2d 297

242 Conn. 143

STATE of Connecticut, v. John DASH.

No. 15569.

Supreme Court of Connecticut.

Argued April 22, 1997.

Decided July 29, 1997.

Jon L. Schoenhorn, Hartford, for appellant (defendant).

Christopher T. Godialis, Deputy Assistant State's Attorney, with whom were Nicole A. Bernabo, Legal Intern, and, on the brief, Eugene J. Callahan, State's Attorney, and Robert Katz, Senior Assistant State's Attorney, for appellee (State).

Before BORDEN, BERDON, NORCOTT, PALMER and McDONALD, JJ.

PALMER, Associate Justice.

The principal issue raised by this appeal is whether General Statutes § 53-202k, ¹ which provides for a consecutive, nonsuspendable five year prison term for a person who commits a class A, B or C felony with a firearm, is itself a felony offense or, instead, a sentence enhancement provision. A jury found the defendant, John Dash, guilty of assault in the first degree in violation of General Statutes § 53a-59 (a)(3), ² and commission of a class A, B or C felony with a firearm in violation of § 53-202k. The trial court rendered judgment sentencing the defendant to consecutive prison terms of eleven years on the first degree assault count and five years on the count charging commission of a felony with a firearm, for a total effective sentence of sixteen years. On appeal, ³ the defendant claims that, although the trial court properly sentenced him to a consecutive five year prison term pursuant to § 53-202k, the court nevertheless improperly rendered judgment convicting him of a separate crime under § 53-202k. ⁴ We agree with the defendant and, consequently, we conclude that the defendant's conviction under § 53-202k must be vacated.

The jury reasonably could have found the following facts. At approximately 1:30 p.m. on August 18, 1994, the victim, Terry Coleman, and his fifteen year old cousin, Rashad Green-Younger, drove into the Meadow Gardens housing project in the city of Norwalk. As the victim was exiting his car, the defendant, whom the victim had met for the first time earlier that day, approached the car, pointed a gun at the victim's temple, and stated, "This is a stickup, kid." A struggle ensued, during which the defendant overpowered the victim, shot him in the back, and fled. Both Green-Younger and the victim, who suffered permanent injuries as a result of the shooting, positively identified the defendant as the assailant.

At trial, the state presented the testimony of several police officers regarding the investigation of the altercation, including the gathering of evidence and the preparation and presentation of photographic lineups viewed by the victim and Green-Younger. None of these police officers, however, provided eyewitness testimony. At the trial's conclusion, the court instructed the jury that "it is permissible for you to consider the special training and experience which a police officer receives when you are judging his ability to observe and remember and record events while he is engaged in these duties." The defendant did not object to this instruction.

The jury thereafter convicted the defendant of first degree assault and committing a class A, B or C felony with a firearm. ⁵ This appeal followed.

I

The defendant claims that his separate conviction under § 53-202k was improper because that statutory section is a sentence enhancement provision rather than a separate offense. Although the defendant concedes that the five year consecutive sentence imposed on him by the trial court pursuant to § 53-202k was proper, he maintains that his separate conviction under that statutory section must be vacated. We agree with the defendant. ⁶

Our analysis is governed by well established principles of statutory construction. "Statutory construction is a question of law and therefore our review is plenary.... [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) State v. Burns, 236 Conn. 18, 22-23, 670 A.2d 851 (1996). Several additional tenets of statutory construction guide our interpretation of a penal statute. First, we must take care not to impose criminal liability where the legislature has not expressly so intended. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Second, "[c]riminal statutes are not to be read more broadly that their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant." (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995). Finally, "unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state." State v. Ross, 230 Conn. 183, 200, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S.Ct. 1133, 130 L.Ed.2d 1095 (1995).

Although the plain language of § 53-202k does not illuminate whether that statute is a sentence enhancement provision, the title of § 53-202k, "Commission of a class A, B, or C felony with a firearm: Five year nonsuspendable sentence " (emphasis added), suggests that the legislature's overriding purpose in enacting § 53-202k was not to create a separate offense but, rather, to establish an enhanced penalty for persons who commit a class A, B or C felony with a firearm. Furthermore, unlike other provisions in which the legislature has penalized aggravated conduct of the kind contemplated by § 53-202k; see, e.g., General Statutes §§ 53a-216 and 53a-217; ⁷ § 53-202k contains no language to indicate that it is, in fact, a separate felony offense. Although not dispositive of the issue presented, this fact lends further support to the conclusion that § 53-202k is not a separate crime but, rather, a sentence enhancer.

Our review of the relevant legislative history persuades us that § 53-202k was intended to serve as a sentence enhancement provision. Section 53-202k was enacted as part of a comprehensive legislative plan for dealing with assault weapons. See Public Acts 1993, No. 93-306 (P.A. 93-306), now codified at General Statutes §§ 53-202a through 53-202k. During the debate on P.A. 93-306, Representative Michael P. Lawlor, cochair of the judiciary committee, described §§ 53-202j and 53-202k as establishing, "new enhanced mandatory minimum penalties for the commission of a felony." (Emphasis added.) 36 H.R. Proc., Pt. 32, 1993 Sess., p. 11,540. Representative Lawlor also explained that § 53-202k was intended, "[to add] five years to the end of whatever other sentence [a defendant is] receiving as a consequence of these acts.... This legislation requires five years to be tacked on to the end of [the] sentence [for the underlying felony] which must run consecutively and which cannot be suspended or reduced in any manner. So that would be in addition to the minimum mandatories that are already in existence for whatever the underlying crime was. So, it is five additional years on top of the other sentence." (Emphasis added.) 36 H.R. Proc., Pt. 33, 1993 Sess., pp. 11,727-28. Similarly, Representative Reginald L. Jones, Jr., stated that this legislation "deal[s] with mandatory sentences that run consecutively and cannot be plea bargained. The purpose, of course, is to make the penalties greater and greater if you use these weapons." (Emphasis added.) Id., p. 11,725. Finally, Senator Alvin W. Penn explained that the legislation "requires a mandatory five year sentence ... in addition and consecutive to any imprisonment for the [underlying] felony." 36 S. Proc., Pt. 14, 1993 Sess., p. 4956.

These comments strongly suggest that the legislature, in enacting § 53-202k, merely sought to establish an additional penalty for a person who commits a class A, B or C felony with a firearm. Moreover, nothing in the legislative history suggests that the legislature intended that § 53-202k constitute a separate offense independent of the commission of the underlying felony. Indeed, at oral argument, the state indicated that it was not pressing its claim that § 53-202k constituted a separate offense rather than a sentence enhancer. ⁸

For these reasons, and in the absence of any indication to the contrary, we conclude that § 53-202k is a sentence enhancement provision and not a separate crime. ⁹ Consequently, although the defendant's total effective sentence of sixteen years was proper, the judgment must be modified to reflect the fact that § 53-202k does not constitute a separate offense. Accordingly, the defendant is entitled to have his conviction under § 53-202k vacated.

II

The defendant also claims that he was deprived of his due process right to a fair and impartial jury under the sixth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution. ¹⁰ Specifically, he contends that the trial court improperly instructed the jury that it could consider the "special training and experience" of police officers in assessing their credibility as witnesses. The defendant claims that the instruction was improper because it bolstered the police officers' credibility, thereby diminishing the state's burden of proving the defendant guilty beyond a reasonable doubt.

The defendant concedes that he neither filed a request to charge nor excepted to the jury instruction that he now maintains was improper. He therefore seeks review of his unpreserved claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), wherein we held that "a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the...