State v. Kluttz

• Decision Date: 17 February 1987
• Docket Number: 3209,Nos. 3208,s. 3208
• Citation: 9 Conn.App. 686,521 A.2d 178
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Charles KLUTTZ.

Page 178

521 A.2d 178

9 Conn.App. 686

STATE of Connecticut v. Charles KLUTTZ.

Nos. 3208, 3209.

Appellate Court of Connecticut.

Argued Oct. 14, 1986.

Decided Feb. 17, 1987.

C. Robert Satti, Jr., Asst. State's Atty., with whom, on the brief, was Donald A. Browne, State's Atty., for appellant-appellee (state).

Kent Drager, Asst. Public Defender, with whom, on the brief, was Joette Katz, Public Defender, for appellee-appellant (defendant).

Before BORDEN, DALY and BIELUCH, JJ.

BORDEN, Judge.

The principal issues of these appeals are (1) whether negligent homicide with a motor vehicle, as defined in General Statutes § 14-222a, ¹ is a lesser included offense of misconduct with a motor vehicle, as defined in General Statutes § 53a-57, ² and (2) whether a defendant who is convicted of multiple counts of negligent homicide with a motor vehicle, in violation of General Statutes § 14-222a, because of multiple deaths resulting from a single motor vehicle accident, is subject to multiple sentences or to only one sentence on all counts. We hold (1) that negligent homicide with a motor vehicle, in violation of General Statutes § 14-222a, is a lesser included offense of misconduct with a motor vehicle, in violation of General Statutes § 53a-57, and (2) that multiple deaths resulting from a single motor vehicle accident yield a separate sentence on each count pursuant to General Statutes § 14-222a.

On January 19, 1983, at approximately 2:55 p.m., the defendant was operating a tractor-trailer truck on Interstate 95 at the Stratford toll station and caused a motor vehicle accident involving several other vehicles which resulted in the deaths of seven people. The state charged him with seven counts of misconduct with a motor vehicle in violation of General Statutes § 53a-57. The jury acquitted him of the charges of misconduct with a motor vehicle, but convicted him of seven counts of negligent homicide with a motor vehicle in violation of General Statutes § 14-222a as lesser included offenses. The trial court ruled, however, that double jeopardy principles required that only one sentence be imposed and, accordingly, imposed on all seven counts a single sentence of six months incarceration and a fine of $1000.

The defendant appealed from the judgment of conviction, claiming that the court erred (1) in submitting to the jury negligent homicide with a motor vehicle as a lesser included offense of misconduct with a motor vehicle, (2) in admitting into evidence an out-of-court statement of the defendant, (3) in denying the defendant's motion for a mistrial which was based on the assistant state's attorney's allegedly improper comment, made in his final closing argument, concerning the defendant's failure to testify, and (4) in giving confusing and misleading instructions to the jury on the concept of negligence. The state also appealed, with the permission of the trial court, claiming that the court erred in imposing only one sentence on the guilty verdicts of seven counts of negligent homicide with a motor vehicle. We find no error on the defendant's appeal. We find error on the state's appeal.

I

THE DEFENDANT'S APPEAL

A

NEGLIGENT HOMICIDE WITH A MOTOR VEHICLE AS A LESSER INCLUDED

OFFENSE OF MISCONDUCT WITH A MOTOR VEHICLE

The defendant's principal claim on appeal is that negligent homicide with a motor vehicle, in violation of General Statutes § 14-222a, cannot be a lesser included offense of misconduct with a motor vehicle, in violation of General Statutes § 53a-57, because negligent homicide with a motor vehicle is not a "criminal offense" but is a "motor vehicle violation" pursuant to the definitions set forth in General Statutes § 53a-24. ³ The state advocates the contrary position, namely, that negligent homicide with a motor vehicle is a "criminal offense," and not a "motor vehicle violation," because it fails to meet the statutory definition of a "violation" as set forth in General Statutes § 53a-27. ⁴

At the state's request and over the objection of the defendant, the court instructed the jury that, if they were not persuaded that the defendant was guilty of misconduct with a motor vehicle, they could convict him of the lesser included offense of negligent homicide with a motor vehicle. ⁵ Although we agree with the defendant that negligent homicide with a motor vehicle is a "motor vehicle violation" within the meaning of General Statutes § 53a-24 and therefore is not an "offense" or "crime" within the meaning of that statute; see footnote 3, supra; we hold that it is an offense for purposes of the lesser included offense doctrine.

The defendant concedes that, if negligent homicide with a motor vehicle were a "crime" rather than a "motor vehicle violation," within the meaning of General Statutes § 53a-24, it would qualify as a lesser included offense of misconduct with a motor vehicle. He does not claim that the first, third or fourth prongs of our traditional lesser included offense analysis were not satisfied. See State v. Tinsley, 181 Conn. 388, 396-97, 435 A.2d 1002 (1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981). His sole claim in this regard is that the second prong of that analysis, namely, that "it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser "; (emphasis added) id.; cannot be satisfied because negligent homicide with a motor vehicle is, by legislative classification, a "motor vehicle violation" and not an "offense." Therefore, before turning to a discussion of the principal issue of whether negligent homicide with a motor vehicle is a lesser included offense of misconduct with a motor vehicle, we must determine the legislative scope of the terms "offense" and "motor vehicle violation."

General Statutes § 53a-24(a) defines the term "offense" as "any crime or violation which constitutes a breach of any law ... for which a sentence to a term of imprisonment or to a fine, or both, may be imposed, except one that defines a motor vehicle violation or is deemed to be an infraction. ⁶ The term 'crime' comprises felonies and misdemeanors. Every offense which is not a 'crime' is a 'violation.' " (Emphasis added; footnote added.) General Statutes § 53a-27 provides that "[a]n offense, for which the only sentence authorized is a fine, is a violation ⁷ unless expressly designated an infraction." (Emphasis added; footnote added.) The state contends that negligent homicide with a motor vehicle does not fall within the statutory definition of a "violation" because it carries a penalty of imprisonment. General Statutes § 53a-27. The state further claims that since negligent homicide with a motor vehicle is not a violation, it is a crime within the meaning of General Statutes § 53a-24(a). Crimes are either felonies or misdemeanors. Id. General Statutes § 53a-26(a) defines a misdemeanor as "[a]n offense for which a person may be sentenced to a term of imprisonment of not more than one year...." (Emphasis added.) General Statutes § 53a-26(c) further provides that "[a]ny offense defined in any other section of the general statutes which, by virtue of an expressly specified sentence, is within the definition set forth in subsection (a) shall be deemed an unclassified misdemeanor." (Emphasis added.) Thus, the state argues, negligent homicide with a motor vehicle is an unclassified misdemeanor.

While at first blush the state's argument is attractive, on closer scrutiny it becomes apparent that a basic step has been overlooked in determining the applicability of the statutes cited in support of the analysis. It is clear from the language emphasized in the statutes defining "violation" and "misdemeanor" that, before the definitions apply, the statute violated must be an "offense." It is equally clear, however, that by the express terms of General Statutes § 53a-24(a) the term "offense" excludes "motor vehicle violation[s]." Thus, on the basis of the statutory scheme, it is our conclusion that negligent homicide with a motor vehicle is not a "crime" within the meaning of General Statutes § 53a-24(a) because it is not an "offense," but rather, it is a "motor vehicle violation." This conclusion is buttressed by an examination of the logic and purpose of subsection (b) of General Statutes § 53a-24, and of the legislative history and intent behind the enactment, repeal and reenactment of the statute concerning negligent homicide with a motor vehicle.

First, General Statutes § 53a-24(b) provides, inter alia, that "[n]otwithstanding the provisions of subsection (a) [which excepts motor vehicle violations from the definition of 'offense'], the provisions of sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations." General Statutes §§ 53a-28 through 53a-44 are the sections of the penal code which, inter alia, set out the authorized sentences for the classified and unclassified offenses (i.e., felonies, misdemeanors and violations) and provide for such sentencing mechanisms as probation, conditional discharge and unconditional discharge. This subsection would be rendered meaningless by the state's analysis, since "motor vehicle violations," within the meaning of General Statutes § 53a-24(a), could only be transgressions carrying a fine. Yet, the purpose of this subsection is to make clear that "the sentencing principles enumerated in sections 53a-28 to 53a-44, inclusive, shall apply to motor vehicle violations." Commission to Revise the Criminal Statutes, Penal Code Comments, Connecticut General Statutes, p. 8. There would be no purpose served by legislatively authorizing the application of sentencing provisions of the penal code, i.e., suspension of execution of sentences of imprisonment conditioned on terms of probation and conditional discharge, to a "motor vehicle violation" if a "motor vehicle violation" consisted only of statutes authorizing punishment by a fin...