State v. Delgado

• Decision Date: 01 August 1989
• Docket Number: No. 7228,7228
• Citation: 19 Conn.App. 245,562 A.2d 539
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Julian DELGADO.

Page 539

562 A.2d 539

19 Conn.App. 245

STATE of Connecticut v. Julian DELGADO.

No. 7228.

Appellate Court of Connecticut.

Argued May 3, 1989.

Decided Aug. 1, 1989.

Stephanie Clarke, Deputy Asst. Public Defender, for appellant (defendant).

Timothy J. Sugrue, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., and Michael E. O'Hare, former Asst. State's Atty., for appellee (State).

Before BORDEN, SPALLONE and JACOBSON, JJ.

BORDEN, Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60(a)(2), burglary in the first degree in violation of General Statutes § 53a-101(a)(2), and criminal trespass in the first degree in violation of General Statutes § 53a-107(a)(1). He claims that the burglary and criminal trespass convictions should be reversed because the court's jury instructions permitted verdicts that were not unanimous. He also claims that the conviction in a single trial of both burglary in the first degree and criminal trespass in the first degree violated his double jeopardy rights. We find no error.

The jury could reasonably have found the following facts. The defendant's former girl friend, Wendy Czyrko, and her children were in her apartment. At approximately midnight, the defendant gained entrance to Czyrko's apartment after he unlocked the door with a key and Czyrko released the inside security chain in an attempt to retrieve the key. After forcibly entering the apartment, the defendant struck Czyrko in the mouth with his fist. Before neighbors were able to come to Czyrko's aid, the defendant attempted to stab Czyrko with a fork and then took a metal leg supporting the front of a wall-mounted sink and used it twice to strike Czyrko twice in the head.

I

The defendant first claims that the court's instruction to the jury regarding burglary in the first degree ¹ permitted a verdict that was not unanimous. The basis for this claim is that the court instructed the jury on the alternative elements of burglary--entering unlawfully and remaining unlawfully--without specifically instructing the jury that it must agree on the same alternative. We disagree.

Although the defendant did not properly preserve this claim at trial, it is subject to a limited review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), to determine whether the claim is truly of constitutional proportions or is simply characterized as such by him. State v. Bailey, 209 Conn. 322, 330 n. 4, 551 A.2d 1206 (1988). We conclude that the defendant's claim is not of true constitutional proportion.

The information, amended at trial, charged the defendant with both statutory theories of burglary, namely, that the defendant "entered or remained unlawfully" in violation of General Statutes § 53a-101(a)(2). The court instructed the jury that if it found that the defendant either entered unlawfully or entered lawfully and thereafter remained unlawfully, those particular elements of the crime had been satisfied.

" 'Where a trial court charges a jury that the commission of any one of several alternative acts would subject a defendant to criminal liability, a unanimity charge on a specific act is required only if two conditions are met: (1) the alternative acts are conceptually distinct from each other; and (2) the state has presented supporting evidence on each alternative act.' " (Emphasis in original.) State v. Bailey, supra, 334, 551 A.2d 1206, quoting State v. Flynn, 14 Conn.App. 10, 38, 539 A.2d 1005, cert. denied, --- U.S. ----, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988). Under the facts of this case, the two alternative acts of entering unlawfully and remaining unlawfully were not conceptually distinct.

It is true that in a different factual context we have held that unlawful entry and unlawful remaining can be construed to be conceptually distinct concepts. See State v. Edwards, 10 Conn.App. 503, 513, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987) (unlawful entry results from lack of permission, license or privilege to enter; unlawful remaining results from lawful entry that later becomes unlawful). In considering whether alternative statutory elements are conceptually distinct for purposes of requiring a unanimity instruction, however, the analysis "turns, not only on the language of the two statutory subsections or elements, but also on the evidence in the case and how the case is presented to the jury in the court's instructions." State v. Velez, 17 Conn.App. 186, 199, 551 A.2d 421 (1988).

In this case, the defendant's acts of entering and remaining were conceptually indistinct and inseparable. The state's evidence was that the defendant entered Czyrko's dwelling unlawfully and continued to remain there unlawfully. The defendant's theory of defense, supported by the evidence he presented, was that he was a cotenant with Czyrko, and, as such, both his initial entry and his remaining in the apartment were lawful. Thus, the jury's verdict could have resulted only from its determination that the defendant's conduct constituted one continuous course of unlawful conduct, namely, that he entered the apartment unlawfully and remained there without any change in his legal status. Under these circumstances, the unlawfulness of his entry determined the unlawfulness of his remaining. The two inexorably intertwined acts were conceptually indistinct.

Furthermore, the defendant's conduct did not "comprise 'separate incidents' implicating alternative or conceptually distinct bases of liability"; State v. Bailey, supra, 209 Conn. at 336, 551 A.2d 1206; and this was not a case where the complexity of the evidence or other factors created a genuine risk of jury confusion. Id., 337, 551 A.2d 1206. Where these factors are absent, our Supreme Court has rejected a similar unanimity claim. Id., 336-37, 551 A.2d 1206.

The defendant also claims that the court's jury instruction regarding criminal trespass in the first degree ² permitted a verdict that was not unanimous. This claim is based also on the court's instructing the jury on the alternative elements of criminal trespass--entering and remaining--without specifically instructing the jury that it must agree on the same alternative. Our discussion of the first jury instruction disposes of this claim.

II

The defendant's final claim is that the convictions for both burglary in the first degree and criminal trespass in the first degree subjected him to multiple punishment of the same offense in violation of his rights against double jeopardy. Although the defendant did not properly preserve this claim at trial, it is reviewable under State v. Evans, supra. State v. Mancinone, 15 Conn.App. 251, 273, 545 A.2d 1131 (1988), cert. denied, --- U.S. ----, 109 S.Ct. 1132, 103 L.Ed.2d 194 (1989). The defendant argues that the legislative history behind General Statutes § 53a-101(a)(2), burglary in the first degree, and General Statutes § 53a-107(a)(1), criminal trespass in the first degree, indicates that the two offenses are mutually exclusive and are not meant to be applied simultaneously for a single unauthorized entry. We reject this claim.

The defendant's claim invokes that strand of double jeopardy jurisprudence that "protects against multiple punishments for the same offense." North Carolina v. Pearce 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). "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); and "the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). "Thus, the question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to impose." Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981). "The issue, though essentially constitutional, becomes one of statutory construction." State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).

In reviewing such a double jeopardy claim, "[f]irst, 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 forbidden only if both conditions are met." State v. Boucino, 199 Conn. 207, 222, 506 A.2d 125 (1986). There is no dispute in this case that the two charged offenses arose out of the same transaction. We therefore consider whether the two criminal statutes constitute the same offense for double jeopardy purposes. This requires that we "determine whether the legislature ... intended that each violation be a separate offense." Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985).

The traditional polestar in this analysis has been to compare the elements of the offenses in question using the test established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires the proof of a fact which the other does not." Id., 52 S.Ct. at 304. It is clear that, as the defendant concedes, under Blockburger, burglary in the first degree and criminal trespass in the first degree are not the same offense because each requires proof of a fact that the other does not. Compare footnotes one and two, supra. ...