State v. Johns

• Citation: 184 Conn. 369,439 A.2d 1049
• Court: Supreme Court of Connecticut
• Decision Date: 09 June 1981
• Parties: STATE of Connecticut v. Andrew JOHNS.

Page 1049

439 A.2d 1049

184 Conn. 369

STATE of Connecticut v. Andrew JOHNS.

Supreme Court of Connecticut.

Argued April 8, 1981.

Decided June 9, 1981.

Donald D. Dakers, Asst. Public Defender, for the appellant (defendant).

John H. Durham, Asst. State's Atty., with whom, on the brief, was Arnold Markle, State's Atty., for appellee (State).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

ARTHUR H. HEALEY, Associate Justice.

In a case tried to the jury, the defendant was found guilty of both counts in the first part of a two part information. The first count charged the crime of burglary in the third degree, in violation of General Statutes § 53a-103(a), ¹ and the second count charged the crime of conspiracy, in violation of General Statutes § 53a-48. ² The second part of the information, to which part he pleaded guilty, charged him with being a persistent felony offender. See General Statutes § 53a-40(b). He was sentenced as a persistent felony offender, and received a term of not less than five years and not more than ten years on the first count, and a term of not less than two and one-half years and not more than five years on the second count. The court ordered the sentences to run consecutively, so that the total effective sentence imposed was imprisonment for not less than seven and one-half years and not more than fifteen years. ³ This appeal followed.

The jury could have reasonably found the following facts: At approximately 12:15 p. m. on July 27, 1978, the desk officer at the Connecticut state police barracks in Bethany received a telephone alarm call that a burglary was in progress at the Benedict residence on route 69 in Bethany. Upon their arrival at the residence, the police officers noticed a tan station wagon parked in the driveway. No one was in the station wagon or in front of the residence, and there was no movement inside the home. In checking the rear of the house, the officers observed that a forced entry had been made into the residence. The officers heard people running through the very dense woods and brush behind the house. One of the officers gave chase, and saw three white males running ahead of him. Although the officer pursued them in a southerly direction for twenty minutes, he was unsuccessful in capturing them.

Meanwhile, it was discovered that the Benedict residence had been ransacked. The parked station wagon, which had a rear license plate but none in the front, ⁴ proved to be a stolen vehicle. The police found a pizza box, with a warm pizza, in the station wagon. Two latent fingerprints lifted from this vehicle proved to be those of the defendant.

The investigating officers at the scene had called for the assistance of bloodhounds and their handlers. Beginning behind the Benedict residence, the tracking dogs followed trails in a southerly direction to the intersection of Cozley Road, route 69 and Carrington Road, where heavy vehicular traffic forced an end to the tracking.

Further investigation revealed that shortly after the burglary had occurred, Lance Blomberg and Robert Gambordella, who were riding dirt bikes near the Blomberg home, saw three individuals walking up Carrington Road toward the Blomberg residence. All three, who were wet and perspiring, and who looked suspicious to Blomberg, went to the Blomberg home. When Blomberg and Gambordella went to check on them, they said that their car had run out of gas and that they needed a ride to New Haven. ⁵ John Ciesluk, a boarder at the Blomberg residence, gave the three a ride to New Haven, dropping them off on Valley Street, in the vicinity of East Ramsdell Street and Victory Drive. Thereafter, the three went to the home of the defendant's brother-in-law, Albert Dacato, which was located a short distance from where Ciesluk had dropped them off. Dacato observed that the three men, who were identified as the defendant, Robert Mazzacane and Michael Marple, were wet. Mazzacane was all dirty and Marple was all scratched up.

Subsequent investigation disclosed that shortly before the burglary at the Benedict residence, the defendant and his companions had purchased a pizza at a restaurant on route 69 in Prospect. An employee of the restaurant identified the defendant and recalled that the car that the defendant and his two companions were driving did not have a front license plate. Finally, evidence revealed that after leaving the restaurant and heading toward New Haven, the defendant and his two companions, prior to the burglary of the Benedict home, stopped at two other houses on route 69. At both houses, people were then at home.

The defendant poses the issue to be decided on this appeal as follows: Does the imposition of a sentence on the second count of the information, charging conspiracy to commit burglary, consecutive to the sentence on the first count, charging the substantive offense of burglary as a separate crime, violate his rights against double jeopardy under the fifth amendment to the United States constitution and the laws of Connecticut, ⁶ when his liability on the burglary count was dependent upon his conviction under that count as an accessory under General Statutes § 53a-8? ⁷ We hold that it does not.

In making this claim, the defendant "readily concedes" that "in the usual case," neither federal nor state double jeopardy restraints bar prosecution for both conspiracy to commit a substantive offense and the substantive offense itself, and that, in most cases, separate sentences can constitutionally be imposed upon conviction. See Iannelli v. United States, 420 U.S. 770, 779-80, 95 S.Ct. 1284, 1290-91, 43 L.Ed.2d 616 (1975); Pinkerton v. United States, 328 U.S. 640, 643, 66 S.Ct. 1180, 1181, 90 L.Ed. 1489 (1946); State v. Acklin, 171 Conn. 105, 116, 368 A.2d 212 (1976). He argues, however, that based on double jeopardy considerations, exceptions exist to this general rule which apply not only to multiple prosecutions but also to multiple punishments for the "same offense." See, e.g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); State v. Goldson, 178 Conn. 422, 423 A.2d 114 (1979).

In arguing for a reversal, he maintains that the parameters of what constitutes the "same offense" laid down by Blockburger have been broadened by Brown v. Ohio, supra, and our decision in State v. Goldson, supra. He claims that the test now appears to be "to consider whether the crimes are substantially similar and arose out of the 'same act or transaction' and whether the 'same evidence' would be required for the proof of both crimes." He then reasons thus: Liability for the underlying substantive crime as an accessory under § 53a-8 requires that the accessory share the same illegal intent as the principal actor. Therefore, an agreement among two or more wrongdoers is required to impose criminal liability under both statutes. The "elemental difference" for the imposition of criminal liability as an accessory under § 53a-8 and the crime of conspiracy, he says, is that the "overt act" in a conspiracy prosecution "may be an inchoate crime" whereas the imposition of criminal liability for the underlying substantive crime as an accessory under § 53a-8 requires a completed crime. Such an "elemental difference" under the facts of this case, he concludes, referring to our decision in State v. Goldson, supra, is a constitutionally prohibited prosecution for two separate crimes "addressing only different temporal aspects of the same conduct." We must reject these claims in this case.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." In Blockburger, a case involving multiple counts in one trial, the United States Supreme Court stated the test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment. In that case, the court held that, "(t)he 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." Blockburger v. United States, supra, 284 U.S. 304, 52 S.Ct. 182. ⁸ See Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). While we recognize that Blockburger may not be without exception, such circumstances are not present here.

The defendant refers to Brown v. Ohio, supra, which, unlike the matter before us, involved a double jeopardy claim in the context of multiple prosecutions and not the imposition of consecutive sentences in a single prosecution. ⁹ Brown explicitly recognizes that the "established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in Blockburger," and that "(t)his test emphasizes the elements of the two crimes." Brown v. Ohio, supra, 166; see also State v. Goldson, supra. In Brown the court reiterated 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." Brown v. Ohio, supra, 432 U.S. 165, 97 S.Ct. at 2225; see also Albernaz v. United States, supra, 450 U.S. at 336, 101 S.Ct. 1144. This is a logical corollary of the proposition that legislatures remain free under the double jeopardy clause to define crimes and fix punishments; but once they have acted, courts may not impose more than one punishment for the same offense. See Brown v. Ohio, s...