State v. Devino

Citation485 A.2d 1302,195 Conn. 70
CourtSupreme Court of Connecticut
Decision Date22 January 1985
PartiesSTATE of Connecticut v. John G. DEVINO, Jr.

Dennis M. Buckley, Waterbury, for appellant.

Catherine F. Capuano, Deputy Asst. State's Atty., with whom, on the brief, was John A. Connelly, State's Atty., for the appellee (State).

Before PETERS, C.J., and HEALEY, PARSKEY, SHEA and DANNEHY, JJ.

DANNEHY, Associate Justice.

The defendant, John G. Devino, Jr., was convicted by a jury on a substitute information charging him in two counts with possession of cocaine in violation of General Statutes § 19-481(a) 1 and in the remaining two counts with sale of cocaine in violation of General Statutes § 19-480(a). 2 He was sentenced on each count to the custody of the commissioner of correction for concurrent terms of one to four years. On appeal, the defendant contends that this procedure violated the double jeopardy prohibition of multiple punishments for the same offense. He further contends that a portion of the trial court's instruction to the jury was erroneous. Neither contention is persuasive.

The essential facts are undisputed. On September 4, 1980, Ralph Brown, an undercover police officer, went to the Waterbury green with an informant, Gary Genovese, to investigate reports of illegal drug trade there. Genovese saw the defendant at the green and introduced him to Brown. After inquiry by Brown, the defendant agreed to sell him a gram of cocaine for $120. Brown, Genovese and the defendant traveled in Brown's car to the Waterbury apartment complex where the defendant said his supplier of drugs lived. The defendant entered the apartment building alone while the others waited in the car, and soon returned with two glassine bags of cocaine. The cocaine and the money were exchanged and after the purchase the defendant was driven back to the green. A meeting for a second cocaine sale was arranged for the next day. On September 5, 1980, following a similar sequence of events, the defendant sold Brown a second gram of cocaine. The defendant admitted having twice sold cocaine to Brown, but claimed the illegal sales were instigated by Genovese's incessant pleas and promises. Consistent with this theory of the case, the defendant raised a defense of entrapment.

The alleged error in the jury instructions concerns the trial court's charge on the affirmative defense of entrapment, a defense not of constitutional dimension. 3 The defendant did not except to this charge at trial. Because the trial court's instructions on entrapment neither failed to submit to the jury an essential element of the offense nor constituted plain error, the defendant's claim has not been preserved for review. See State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982).

The defendant's claim of double jeopardy is also raised for the first time on appeal. Since this claim involves a question of a fundamental constitutional right, it is reviewable under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). See State v. Amaral, 179 Conn. 239, 242, 425 A.2d 1293 (1979); State v. Goldson, 178 Conn. 422, 423, 423 A.2d 114 (1979).

The double jeopardy clause of the fifth amendment to the United States constitution provides: "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb." Connecticut common law also secures this right. See State v. Johns, 184 Conn. 369, 373 n. 6, 439 A.2d 1049 (1981). The prohibition of double jeopardy prevents not only multiple trials, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). 4

Double jeopardy analysis in the context of a single trial is a two-step process. First, 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. See State v. Frazier, 194 Conn. 233, 238, 478 A.2d 1013 (1984).

The first step of this analysis is taken with reference to the information and bill of particulars. State v. Goldson, supra, 424, 423 A.2d 114. The defendant was charged in count one of the information with possession of cocaine at Waterbury on or about September 4, 1980; in count two with sale of cocaine at Waterbury on or about September 4, 1980; in count three with possession of cocaine at Waterbury on or about September 5, 1980; and in count four with sale of cocaine at Waterbury on or about September 5, 1980. The bill of particulars revealed that the September 4, 1980 crimes both occurred at approximately 2:35 p.m., that the September 5, 1980 crimes both occurred at approximately 1:05 p.m., and that all of the crimes took place at or near the Washington Hill Apartments. The crimes arose out of the defendant's two meetings with an undercover police officer and two sales to that officer of cocaine. Each pair of possession and sale charges thus arose from a single act or transaction. We therefore turn to the second step of the analysis.

The classic test for whether offenses are the same within the meaning of the double jeopardy clause "where the same act or transaction constitutes a violation of two distinct statutory provisions ... is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932); see Brown v. Ohio, supra, 166-67, 97 S.Ct. 2225-26. We apply this test with reference to the charging documents. See State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982); State v. Truppi, 182 Conn. 449, 468, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2024, 68 L.Ed.2d 329 (1981).

The defendant was charged in the information and bill of particulars with illegal possession of cocaine as defined by General Statutes § 19-481(a) and illegal sale of cocaine as defined by General Statutes § 19-480(a). Because one may possess narcotics without selling them, a conviction for illegal sale of narcotics requires proof of a fact that a conviction for illegal possession does not. Because one may either possess narcotics legally yet sell them illegally or sell narcotics without possessing them; see State v. Brown, 163 Conn. 52, 62-63, 301 A.2d 547 (1972); a conviction for illegal possession of narcotics requires proof of a fact that a conviction for illegal sale does not. The crimes of which the defendant was convicted were different offenses 5 and therefore the punishments the defendant received did not place him in double jeopardy. 6

There is no error.

In this opinion the other Judges concurred.

1 At the time the alleged offenses were committed, General Statutes § 19-481(a) provided: "Any person who possesses or has under his control any quantity of any narcotic substance, except as authorized in this chapter, for a first offense, may be imprisoned not more than seven years or be fined not more than three thousand dollars, or be both fined and imprisoned; and for a second offense, may be imprisoned not more than fifteen years, or be fined not more than five thousand dollars, or be both fined and imprisoned; and for any subsequent offense may be imprisoned not more than twenty-five years, or be fined not more than ten thousand dollars, or be both fined and imprisoned." Section 19-481(a) was transferred and set out as § 21a-279(a)...

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  • State v. Porter
    • United States
    • Connecticut Supreme Court
    • May 1, 2018
    ...it did not explicitly prohibit looking beyond the charging documents. Id. This court took a similar approach in State v. Devino , 195 Conn. 70, 74, 485 A.2d 1302 (1985), observing that the analysis at step one is "taken with reference to the information and bill of particulars." Thus, this ......
  • State v. Grullon
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    • July 18, 1989
    ...new constitutional right has arisen. Further, the defense of entrapment "is not of constitutional dimension." State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); see State v. Preyer, 198 Conn. 190, 197, 502 A.2d 858 (1985). Accordingly, we decline to review these IV The defendant also ......
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