State v. Davis, 5252

• Decision Date: 22 March 1988
• Docket Number: No. 5252,5252
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Arthur DAVIS, Jr.

Page 150

539 A.2d 150

13 Conn.App. 667

STATE of Connecticut v. Arthur DAVIS, Jr.

No. 5252.

Appellate Court of Connecticut.

Argued Nov. 6, 1987.

Decided March 22, 1988.

Joette Katz, Public Defender, with whom, on the brief, was Joseph G. Bruckmann, Asst. Public Defender for appellant (defendant).

Carolyn K. Longstreth, Deputy Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and STOUGHTON and FOTI, JJ.

STOUGHTON, Judge.

The defendant was convicted after a trial to the court. He appeals from the judgment rendered.

The defendant raises two issues on appeal: (1) that his conviction of risk of injury to a minor caused him to be twice punished for the same crime because, as charged, it is a lesser included offense of both assault in the third degree and unlawful restraint in the first degree; and (2) that his waiver of his right to a jury trial was invalid under the federal and state constitutions, the Connecticut rules of practice and our statutes. We find no error.

The defendant was tried on a four count information charging him: (1) with risk of injury to a minor in violation of General Statutes § 53-21, ¹ (2) with assault in the third degree in violation of General Statutes § 53a-61(a)(1), ² (3) with unlawful restraint in the first degree in violation of General Statutes § 53a-95(a), ³ and (4) with interfering with an officer in violation of General Statutes § 53a-167a(a). The trial court, after hearing sharply conflicting testimony, found the defendant guilty on the first three counts and not guilty on the fourth count.

I

The trial court heard testimony that the victim was a ten year old female child at the time of the trial in April of 1986. On the morning of August 30, 1985, the victim was at home alone in her mother's apartment. The defendant, an acquaintance of the victim's mother, knocked at the door. The victim opened the door and told the defendant that her mother was at work. The defendant called the victim a liar, walked into the apartment and attempted to open the door to the mother's bedroom. Finding the door locked, he slapped the victim, punched her in the stomach and choked her. The victim screamed, bit the defendant, broke free and ran out of the apartment and knocked at the door of a neighbor's apartment. The defendant dragged the victim back to her mother's apartment where he struck her and choked her. He swore at the victim and told her to remain quiet. A neighbor came to the apartment door, and the victim persuaded the defendant to allow her to answer the knock. When the victim opened the door, the neighbor tried to pull her out of the apartment. The defendant resisted and tried to pull the victim back into the apartment. A dog belonging to the victim, which had been outside, got through the doorway and bit the defendant, and the victim was thereafter released. The police had been called, and on their arrival the defendant was arrested and the victim was taken to a hospital. The victim sustained scratches, bruises on her face and contusions on her neck.

The trial court found from the evidence that the defendant unlawfully caused a child under sixteen years of age to be placed in a situation that was likely to injure her health, that he committed an act likely to injure her health and that he was guilty of risk of injury. The trial court also found from the testimony of the neighbor and from the hospital records introduced into evidence that there was an intent to cause physical injury and that physical injury was caused. It, therefore, found the defendant guilty of assault in the third degree. The trial court further found from the testimony of the victim that she was restrained, and from the neighbor's testimony that she was trying to get the victim out of the apartment and that the defendant held the victim back. The court then found the defendant guilty of unlawful restraint in the first degree. The court found that the state had not met its burden of proof on the charge of interfering with an officer and found the defendant not guilty as to that charge. The defendant moved orally to set aside the verdict on assault in the third degree on the ground that conviction for that charge and for risk of injury to a minor based upon the same conduct would constitute double jeopardy.

Subsequently, the defendant moved the trial court to articulate its findings pertaining to the risk of injury charge. The defendant posed four questions by which he sought to determine whether he had committed an act likely to injure the health of the victim, whether he had caused or permitted a child under sixteen years of age to be placed in a situation likely to injure her health, and what he had done in each instance. The court responded affirmatively and referred to pages in the transcript containing the victim's testimony about the various assaults on her person and the restraint of her person, and to testimony by the neighbor and a policeman describing the restraint of the victim and the marks visible on the person of the victim.

The defendant acknowledges that he did not raise the issue of double jeopardy before or at trial by way of a motion to dismiss or consolidate. Nevertheless, he asserts that this claim is reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). A claim that a conviction violates a defendant's right not to be punished twice for the same offense as guaranteed by the double jeopardy clause involves a fundamental right which is wholly reviewable on the record. State v. McCall, 187 Conn. 73, 89-90, 444 A.2d 896 (1982).

In any double jeopardy analysis, the first issue to be resolved is whether the acts involved arise out of the "same act or transaction." If this issue is answered in the affirmative, we then address the question of whether the crimes constitute the "same offense." State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979). Looking only at the information, and not to the evidence adduced at trial, we accept the defendant's contention that all of the charges arose out of the same act or transaction, as the charges of risk of injury to a minor, assault in the third degree, and unlawful restraint in the first degree all allege the same time, date and place for all of the charges. The relevant question which remains, then, is whether risk of injury to a minor is a lesser included offense of assault in the third degree and of unlawful restraint in the first degree. A crime is a lesser included offense if "it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser." State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980).

With respect to the claim that risk of injury to a minor, as charged, is a lesser included offense of assault in the third degree, State v. Trujillo, 12 Conn.App. 320, 334-36, 531 A.2d 142 (1987), is dispositive. In Trujillo, the defendant was charged with assault in the second degree, in violation of General Statutes § 53a-60, and risk of injury to a minor in violation of General Statutes § 53-21. Although the defendant in this case was charged with assault in the third degree, the distinction is not important for this purpose because both assault in the second degree as charged in Trujillo and assault in the third degree as charged here require proof of intent to cause injury to another and proof of injury to another. The analysis in Trujillo is therefore apposite. Even if the assault charge and the risk of injury charge arose out of the same act, a fact which is not conceded by the state, the elements of the two charges are distinct and dissimilar and are not the same offense for double jeopardy purposes. State v. Trujillo, supra, 336, 531 A.2d 142; State v. Martin, 189 Conn. 1, 7 n. 2, 454 A.2d 256, cert. denied, 461 U.S. 933, 103 S.Ct. 2098, 77 L.Ed.2d 306 (1983).

We apply a similar analysis with respect to the claim that risk of injury to a minor, as charged, is a lesser included offense of unlawful restraint in the first degree. To convict the defendant of risk of injury to a minor, as charged, the state was required to prove that the defendant did acts likely to impair the health of a child under the age of sixteen. To convict the defendant of unlawful restraint in the first degree as charged, the state was required to prove that the defendant restrained the victim under circumstances which exposed her to a substantial risk of physical injury and that the defendant entertained the specific intent to restrain the victim. General Statutes § 53a-91(1). It is apparent that each of these offenses, as charged, required proof of elements which the other did not require.

We find no error as to the double jeopardy claim.

II

The defendant did not raise his claim in the trial court that his waiver of his right to a trial by jury was invalid on the grounds that it was not knowingly and voluntarily made. He asserts that this claim is reviewable under State v. Evans, supra. He also argues on appeal that his waiver was invalid because the trial court did not follow the procedure set forth in General Statutes § 54-82(b) and Practice Book § 839.

We agree that a claim of an ineffective waiver of the right to a trial by jury implicates a fundamental constitutional right. State v. Marino, 190 Conn. 639, 642, 462 A.2d 1021 (1983). Accordingly, we review the record to determine whether the defendant has been deprived of this right. We do not consider the defendant's claim as it implicates our rules of practice and statutes. Deviations from the procedure set forth therein do not alone constitute a claim of error eligible for appellate review sufficient to overcome our general prohibition against raising on appeal issues never presented to the trial court. State v. Crump, 201 Conn. 489, 499, 518 A.2d 378 (1986).

The record indicates that on October 9, 1985, the defendant was arraigned on the four charges on which he was...