State v. Flynn, s. 4132

• Citation: 14 Conn.App. 10,539 A.2d 1005
• Decision Date: 05 April 1988
• Docket Number: Nos. 4132,4153,s. 4132
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Joseph M. FLYNN.

Page 1005

539 A.2d 1005

14 Conn.App. 10

STATE of Connecticut v. Joseph M. FLYNN.

Nos. 4132, 4153.

Appellate Court of Connecticut.

Argued Nov. 6, 1987.

Decided April 5, 1988.

Richard Emanuel, with whom, on the brief, was Charles Hanken, Bridgeport, for appellant (defendant).

Susan C. Marks, Deputy Asst. State's Atty., with whom, on the brief, was John Whalen, Asst. State's Atty., for appellee (state).

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

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction, after a jury trial, of the crimes of assault on a peace officer in violation of General Statutes § 53a-167c, reckless endangerment in the second degree in violation of General Statutes § 53a-64, breach of the peace in violation of General Statutes § 53a-181, and interfering with an officer in violation of General Statutes § 53a-167a. The defendant claims that the trial court erred (1) in imposing multiple punishments for the same offense in violation of his fifth amendment right against double jeopardy, (2) in rendering judgment upon inconsistent verdicts, (3) in denying his motion to view the scene of the alleged crimes, (4) in its instructions to the jury regarding circumstantial evidence and on interfering with an officer, and in commenting on the evidence, and (5) in failing to instruct the jury that it was required to reach unanimity on alternative elements of an offense. ¹

The jury could reasonably have found the following facts. On Saturday, November 17, 1984, at approximately 2:30 a.m., four Milford police officers, Officers Mitchell Greenberg, John Kranyak, Gary Stacoffe, and Douglas Youd, arrived at a local bar in response to an assault complaint. After investigation, the officers concluded that the suspect had left that bar to go to another nearby bar, the Double Play Saloon. The officers went to the Double Play Saloon in search of the suspect, who was not the defendant here. Kranyak, Stacoffe and Youd entered the Double Play through the front door, and walked toward the rear dance floor area. Greenberg entered the bar a minute later. All officers were in uniform. The bar was crowded, dark and noisy. While Kranyak and Stacoffe were standing near the dance floor, with their backs to the bar area, Kranyak was struck on the right shoulder by a beer bottle and Stacoffe was struck on the back of the head by a hard blunt object, allegedly a beer bottle.

At trial, Youd testified that he had been standing behind Stacoffe and Kranyak, and that he saw the defendant throw a full or partially full beer bottle at the two officers, although he did not actually see it strike the officers. He further testified that he grabbed the defendant and informed him that he was under arrest and that the defendant had resisted the attempts to arrest him. Stacoffe testified that he heard a "scuffling" and both he and Kranyak became aware that Youd was attempting to make an arrest, that the defendant was kicking and struggling and that it required the efforts of all four officers to handcuff and remove him from the Double Play Saloon.

Witnesses for the prosecution testified that at the police station, after Youd had informed the defendant of his Miranda rights; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); the defendant asked several times what the charges were against him and then made the comment: "That's why I threw the bottle."

At trial, the defendant took the stand in his own defense and denied that he had thrown the bottle or that he had resisted arrest. Several witnesses for the defense corroborated the defendant's version of the events.

The jury found the defendant guilty on all four counts charged in the short-form information. On April 12, 1985, the trial court sentenced the defendant to the following terms of imprisonment: three years for assault on a peace officer; six months for reckless endangerment in the second degree; six months for breach of peace; and one year for interfering with an officer. The sentences imposed were ordered to run consecutively, for a total effective sentence of five years.

I

The defendant first claims that the trial court imposed multiple punishments for the same offense in violation of his federal and state constitutional rights to be free from being placed twice in jeopardy. The defendant argues (1) that the crime of interfering with an officer is a lesser included offense of assault on a peace officer, and (2) that the crime of reckless endangerment in the second degree is a lesser included offense of assault on a peace officer. Although the defendant did not raise the double jeopardy issue at trial, it is reviewable under State v. Evans, 165 Conn. 61, 69-70, 372 A.2d 576 (1973), because "this claim involves a question of a fundamental constitutional right" and is adequately supported by the record. State v. Devino, 195 Conn. 70, 73, 485 A.2d 1302 (1985); State v Williams, 12 Conn.App. 225, 229, 530 A.2d 627 (1987).

The fifth amendment to the United States constitution declares that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb...." This amendment is fully applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). Although the Connecticut constitution does not include a specific double jeopardy provision, our Supreme Court "has long recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense." State v. Langley, 156 Conn. 598, 600-601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S.Ct. 726, 21 L.Ed.2d 712 (1969). The due process guarantees of article first, § 8, of the Connecticut constitution, therefore, have been held to encompass protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962). ²

One of the protections flowing from the double jeopardy guarantee is that "against multiple punishments for the same offense" in a single trial. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); State v. Goldson, 178 Conn. 422, 423-24, 423 A.2d 114 (1979). In State v. Johns, 184 Conn. 369, 439 A.2d 1049 (1981), our Supreme Court reaffirmed the proposition that " '[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee [against double jeopardy] is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense....' " Id., at 376, 439 A.2d 1049 quoting Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), articulated the governing standard for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. "The applicable rule is that 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 proof of an additional fact which the other does not." Id., at 304, 52 S.Ct. 182. In applying the prohibition against double jeopardy, the appropriate inquiry involves resolving two separate but related issues. The first issue that must be addressed is whether the crimes arise out of the "same act or transaction." Only if this issue is answered in the affirmative do we need to address the second issue of whether the crimes charged constitute the "same offense." State v. Devino, supra, 195 Conn. at 74, 485 A.2d 1302; State v. Goldson, supra, 178 Conn. at 424, 423 A.2d 114.

With respect to the first issue, we must refer to the language of the information against the defendant. ³ Count one of the information charged the defendant with the crime of assault on a police officer in violation of either General Statutes § 53a-167c(a)(1) or (a)(2), ⁴ at Milford, on or about November 17, 1984. Count two of the information charged the defendant with the crime of reckless endangerment in violation of General Statutes § 53a-64, at Milford, on or about November 17, 1984; count three, with the crime of breach of peace in violation of General Statutes § 53a-181, ⁵ on or about November 17, 1984; and count four, with the crime of interfering in violation of General Statutes § 53a-167a, at Milford, on or about November 17, 1984.

The state argues that the charges do not relate to the same act or transaction in light of the fact that the evidence adduced at trial suggested two discrete acts by the defendant--the allegation that the defendant threw a beer bottle at a police officer, striking and injuring him, and the allegation that the defendant strenuously resisted with force when the officers subsequently attempted to arrest him.

We acknowledge that the defendant's failure to pursue a motion for a bill of particulars complicates this inquiry. The state and the defendant concede that the charge of assault on a police officer relates solely to the bottle throwing incident. With respect to the remaining three charges, however, neither the information nor the court's jury instructions specified what act was alleged to constitute a violation of which statute. The information states the exact same place and time in connection with all four crimes, and is silent with respect to any particular act which violates any particular statute. We must therefore conclude that, for the purpose of double jeopardy analysis, the crimes charged arose out of the same act or transaction. See State v. Goldson, supra, 178 Conn. at 425, 423 A.2d 114 (an information and bill of particulars stipulating a single date and time warrants the conclusion...