State v. Goldson

• Decision Date: 17 July 1979
• Citation: 423 A.2d 114,178 Conn. 422
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Benjamin GOLDSON.

Page 114

423 A.2d 114

178 Conn. 422

STATE of Connecticut v. Benjamin GOLDSON.

Supreme Court of Connecticut.

Argued May 9, 1979.

Decided July 17, 1979.

Jerrold H. Barnett, Public Defender, with whom, on the brief, was Richard L. Shiffrin, Asst. Public Defender, for the appellant (defendant).

Paul E. Murray, Asst. State's Atty., Waterbury, with whom, on the brief, was Francis M. McDonald, Jr., State's Atty., for the appellee (state).

Before COTTER, C. J., and LOISELLE, BOGDANSKI, LONGO and PETERS, JJ.

PETERS, Judge.

The defendant, Benjamin Goldson, was convicted by a jury of possession of heroin in violation of § 19-481(a) of the General Statutes and of transportation of heroin in violation of § 19-480(a). He was sentenced to consecutive terms totaling not less than eight nor more than fourteen years. The defendant appeals from the judgment rendered against him, arguing (1) the failure of the state to prove beyond a reasonable doubt an essential element of the crime with which he was charged and (2) the illegality of the consecutive sentences on the two charges under the constitutional guarantee against double jeopardy.

The defendant's claim concerning the sufficiency of the evidence to convict him is neither procedurally nor substantively sustainable. Absent motions before the trial court either for a directed verdict or to set aside the verdict, this court ordinarily will not review claims of evidentiary insufficiency. Practice Book, 1978, § 3063; State v. Zeko, 176 Conn. 421, 426, 407 A.2d 1022 (1979); State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Even if we were inclined not to invoke this entirely salutary rule, the outcome would be the same. The evidence adduced at trial was more than ample, albeit circumstantial, to link this defendant to the heroin found in the hubcap of his Cadillac automobile. Holland v. United States, 348 U.S. 121, 139-40, 75 S.Ct. 127, 99 L.Ed. 150 (1954); State v. Ruiz, 171 Conn. 264, 276-77, 368 A.2d 222 (1976).

The defendant's second ground of appeal argues that it was constitutionally impermissible to convict him of both transportation and possession of heroin, because possession is a lesser included offense and the dual convictions therefore constitute a violation of the prohibition against double jeopardy. This claim also was only belatedly raised in this court, but since it involves a question of a fundamental constitutional right we will consider it. State v. Evans, supra, 165 Conn. 70, 327 A.2d 576.

It is undisputed that double jeopardy attaches not only to separate trials but also to 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). "The established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger v. United States, 284 U.S. 299, 304 (52 S.Ct. 180, 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....' This test emphasizes the elements of the two crimes." Brown v. Ohio, supra, 432 U.S. 166, 97 S.Ct. 2225.

As the state points out, however, there are two separate although related issues to be resolved in applying the prohibition against double jeopardy. The first issue is whether the crimes arise out of "the same act or transaction." Only if that issue is resolved in the affirmative does the second issue, the distinction between the offenses, come into play.

On the first issue, we must refer to the language of the information against the defendant, as amplified by the bill of particulars. The state charged the defendant, in count one, with the crime of possession of narcotics, at Waterbury, on or about December 12, 1968, and in count two, with the crime of transportation of narcotic drugs to another, at Waterbury, on or about December 12, 1968. In response to a motion for a bill of particulars, the state revealed that the narcotic drug was heroin, and that both the possession and the transportation occurred on December 12, 1968, at approximately 8 p. m. The charges, thus framed, clearly relate to the same act or transaction. The state's assertion that possession of the heroin may have continued beyond the time charged is not sufficient to alter this conclusion. In Brown v. Ohio, supra, the state of Ohio had charged the defendant with joyriding, i. e., with operating an automobile without the owner's consent, on December 8, 1973, and with theft of the same vehicle, on November 29, 1973. Despite a contrary ruling by the Ohio Court of Appeals, the United States Supreme Court decided (432 U.S. p. 169, 97 S.Ct. p. 2227) that the defendant could not be convicted of both crimes simply "because the charges against him focused on different parts of his 9-day joyride.... The Double Jeopardy Clause is not such a fragile guarantee that prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a series of temporal or spatial units." If separate charges explicitly addressing different temporal aspects of the same conduct do not avoid the double jeopardy clause, surely an information and bill of particulars stipulating a single date and time cannot do so.

The Double Jeopardy Clause bars cumulative...