State v. Gilchrist

• Citation: 591 A.2d 131,24 Conn.App. 624
• Decision Date: 19 April 1991
• Docket Number: No. 8358,8358
• Court: Appellate Court of Connecticut
• Parties: STATE of Connecticut v. Edward GILCHRIST.

Page 131

591 A.2d 131

24 Conn.App. 624

STATE of Connecticut v. Edward GILCHRIST.

No. 8358.

Appellate Court of Connecticut.

Argued Sept. 26, 1990.

Decided April 19, 1991.

Suzanne Zitser, Asst. Public Defender, with whom, on the brief was G. Douglas Nash, Public Defender, for appellant (defendant).

Frederick W. Fawcett, Asst. State's Atty., with whom, on the brief, were Donald A. Browne, State's Atty., and John C. Smriga, Asst. State's Atty.

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

DUPONT, Chief Judge.

The defendant appeals from the judgment of conviction of two counts of attempted murder in violation of General Statutes §§ 53a-49 and 53a-54a(a), two counts of assault in the second degree in violation of General Statutes § 53a-60(a)(1), and one count of assault in the first degree in violation of General Statutes § 53a-59(a)(1). ¹ The crimes with which the defendant was charged involved four different victims.

The defendant contends that the convictions for attempted murder and assault in the second degree for one victim, and the convictions for attempted murder and assault in the first degree for another victim violate his right not to be put in double jeopardy under the constitution of the United States and his right to due process under the Connecticut constitution. He also claims that the jury was erroneously instructed on the components of self-defense, on the crime of attempted murder and on the definition of reasonable doubt.

I

The defendant's claim of violation of his right against double jeopardy is a narrow one. He asserts that if a defendant engages in conduct, which is a single act that results in a completed offense against one victim, he may only be convicted and punished for the one offense of the completed act, although he may properly be charged with both the attempted crime and the completed crime. Here, the attempted murder convictions and the assault convictions both arise, in the case of each victim, from a single gunshot. The defendant does not claim that the state cannot charge a defendant in a single trial with multiple crimes arising out of a single act, or contend that there cannot be multiple convictions of attempted murder and assault for a single act if there is more than one victim.

The defendant's double jeopardy claim was not properly preserved at trial, but the state concedes that we may consider it. See State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

"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 and 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)." State v. Lonergan, 16 Conn.App. 358, 363, 548 A.2d 718 (1988), aff'd, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, --- U.S. ----, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990). Among the guarantees provided by the double jeopardy clause is protection 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); State v. Lonergan, supra, 213 Conn. at 79, 566 A.2d 677. The defendant's argument invokes this protection.

The first step in determining whether several offenses charged in a single prosecution are sufficiently different to permit multiple punishments without violating the double jeopardy clause is to apply the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). "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 a fact which the other does not." Id.

The Blockburger test has already been applied to charges of attempted murder ² and assault in the first degree. ³ State v. Sharpe, 195 Conn. 651, 655-56, 491 A.2d 345 (1985). That case concluded that attempted murder and assault in the first degree are not the same offense for double jeopardy purposes. The Sharpe court reasoned that because conviction for attempted murder requires proof of intentional conduct constituting a substantial step toward intentionally causing the death of another person without proof of actual injury, whereas conviction for assault in the first degree requires proof that the defendant actually inflicted serious injury upon the victim without proof of an intent to cause death, the two offenses are not the same. This analysis of the elements of attempted murder and assault in the first degree may be extended to the defendant's other convictions for attempted murder and assault in the second degree. Assault in the second degree ⁴ and assault in the first degree require proof of actual injury, but no showing of an intent to cause death as is required by attempt of murder. Each of the offenses of attempted murder and assault in the second degree, therefore, requires proof of a fact that the other does not.

The presumption that if a Blockburger analysis reveals that there are two crimes there may be separate punishments is not conclusive. State v. Blackwell, 20 Conn.App. 193, 197, 565 A.2d 549 (1989). The presumption is a rule of statutory construction that may be rebutted "by showing a clear legislative intent that the two statutes be treated as one for double jeopardy purposes." Id.; State v. Greco, 216 Conn. 282, 293, 579 A.2d 84 (1990); State v. Fudge, 20 Conn.App. 665, 669, 569 A.2d 1145, cert. denied, 214 Conn. 807, 573 A.2d 321 (1990).

The defendant concedes that the offense of attempted murder and assault in the first degree relating to one victim, and the offenses of attempted murder and assault in the second degree relating to another victim are separate offenses for purposes of Blockburger, rather than offenses standing in a greater-lesser relationship. He, thus, concedes that the offenses arose out of the same transaction and that each offense requires proof of an element that the other does not.

The defendant, nevertheless, argues that this court should modify the traditional application of the Blockburger analysis used in single prosecution cases in order to prohibit two convictions where the defendant has engaged in one single course of conduct. The defendant would define a single course of conduct as one incapable of division. He thus makes a distinction between "the same act or transaction" and a single course of conduct, claiming that the former may include two distinct courses of conduct or acts in a chain of related acts whereas the latter can include only one act. The defendant further argues that we ought to extend the reasoning of State v. Lonergan, supra, which concerns successive prosecutions, to single prosecution cases. In proffering this argument, the defendant asks this court to distinguish State v. Sharpe, supra, from this case because he views the facts of Sharpe as involving acts in a chain of related acts. The Sharpe court held that, although five or six shots were fired at one victim, a Blockburger analysis was required. In determining to conduct a Blockburger analysis, the court, however, is by implication deciding that there was only one act or transaction in spite of the multiplicity of shots.

The defendant claims that because the acts that gave rise to the convictions were here incapable of division, the legislature could not have intended to authorize punishment for both an attempted offense and a completed offense arising from such acts.

When two separate statutory offenses are charged, one not being a lesser included offense of the other, and cumulative punishment is authorized by the legislature, cumulative punishments may be imposed at the conclusion of a single trial regardless of whether the acts of the defendant are divisible, as long as they are part of the same transaction. State v. Greco, supra.

In State v. Lonergan, supra, 16 Conn.App. at 363, 548 A.2d 718, we held, and the Supreme Court agreed, that "in successive prosecution cases, two offenses under the Blockburger test might be considered the 'same offense' for double jeopardy purposes, despite dissimilar statutory elements, where the same evidence or conduct proves both offenses." Lonergan's holding, however, is deeply rooted in the policies protecting defendants against multiple trials, and we decline to extend it to a case involving a single prosecution, even if it were true that the defendant's conduct as shown by the evidence might be viewed as a "single impulse," as characterized by the defendant. In single prosecution cases, the proper double jeopardy inquiry is whether each offense requires proof of an element not required by the other, without resort to the evidence adduced at trial. Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1293 n. 17, 43 L.Ed.2d 616 (1975). "When the issue is purely one of multiple punishments, the right to be free from vexatious proceedings is simply not present." State v. Lonergan, supra, 16 Conn.App. at 377, 548 A.2d 718. The defendant has failed to persuade us that the legislature did not intend to impose two punishments for the two crimes involving both victims, and has failed to persuade us that this case is anything other than a garden-variety example of the application of Blockburger.

The defendant also claims that his dual convictions for attempted murder and assault in the first degree, and his dual convictions for attempted murder and assault in the second degree violate his right to due process. Although the defendant makes this claim under article first, § 8, of the Connecticut constitution he cites only one federal case, Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), in support of his argument that the...