State v. Lonergan, No. 5981

• Court: Appellate Court of Connecticut
• Writing for the Court: Before DUPONT; DUPONT
• Citation: 548 A.2d 718,16 Conn.App. 358
• Parties: STATE of Connecticut v. John LONERGAN.
• Docket Number: No. 5981
• Decision Date: 27 September 1988

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548 A.2d 718 16 Conn.App. 358 STATE of Connecticut
v.
John LONERGAN. No. 5981. Appellate Court of Connecticut. Argued April 12, 1988.
Decided Sept. 27, 1988.

[16 Conn.App. 359] Geoffrey Marion, Deputy Asst. State's Atty., with whom, on the brief, were Alan Reisner and James G. Clark, Asst. State's Attys., and Janine D'Angelo, Legal Intern, for appellant (State).

James A. Wade, with whom were Raymond T. DeMeo and, on the brief, Sally S. King, Hartford, for appellee (defendant).

Before [16 Conn.App. 358] DUPONT, C.J., and DALY and EDWARD Y. O'CONNELL, JJ.

[16 Conn.App. 359] DUPONT, Chief Judge.

The state appeals from the judgment rendered after the trial court's dismissal of the information against the defendant charging him with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. We find no error.

This case involves the following undisputed facts. On May 22, 1985, at approximately 9 p.m., the defendant was driving a car in an easterly direction on Airport Road in Hartford. While making a left turn into a restaurant driveway, the defendant's car

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collided with a motorcycle, operated by Scott Sementilli, which was traveling in a westerly direction on Airport Road. The defendant was arrested and charged with operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a. ¹ The [16 Conn.App. 360] following day, May 23, 1985, Sementilli died as a result of the injuries he sustained during the collision. The defendant was subsequently arrested and charged with manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. ² The defendant pleaded not guilty to both of these charges.

The state elected to sever the two counts and proceeded to trial on the manslaughter count only. The manslaughter count was then tried to the court. At the close of the state's case-in-chief, the defendant moved for a judgment of acquittal. The trial court ruled that the state had failed to prove beyond a reasonable doubt that the defendant's alleged intoxication had caused the death of Sementilli and, accordingly, granted the defendant's motion for judgment of acquittal.

The state then sought to prosecute the defendant for operating a motor vehicle while under the influence of liquor. The defendant moved for a dismissal of the information charging him with operating while under the influence on the ground that the second prosecution was prohibited under the double jeopardy clauses of the federal and state constitutions. U.S. Const., amend V; Conn. Const., art. 1, § 8.

In opposition to the defendant's motion to dismiss, the state argued that the requirement in General Statutes § 53a-56b that the defendant's conduct be "in consequence[16 Conn.App. 361] of his intoxication," was distinct from the requirement in General Statutes § 14-227a that the defendant be "under the influence" of liquor. The state contended that because it was possible to prove "intoxication" without having first proven that the defendant was "under the influence," § 53a-56b was not the "same offense" as § 14-227a for double jeopardy purposes. See generally Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932).

The trial court explicitly rejected the state's argument and, in a memorandum of decision, stated: "While it is possible to be under the influence of intoxicating alcohol while not being intoxicated, it is impossible to be intoxicated while not, at the same time, be[ing] under the influence of alcohol." ³ On that basis, the trial court concluded

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that the defendant's constitutional right against double jeopardy prevented the state from prosecuting him under § 14-227a and, accordingly, granted the defendant's motion to dismiss the information. The state's appeal followed.

[16 Conn.App. 362] On appeal, the state has abandoned the argument that it had made to the trial court, namely, that it was possible to prove intoxication without having first proven that the defendant was under the influence. Rather, the sole claim raised by the state in its appeal is that the two offenses are not the same for double jeopardy purposes because (1) the crime of operating under the influence requires proof that the defendant operated a vehicle in one of the geographical locations specified in the statute, an element not required by § 53a-56b, and (2) the crime of manslaughter in the second degree with a motor vehicle while intoxicated requires proof of the death of another person, an element not required by § 14-227a.

The defendant argues that we should decline to review the claim on appeal on the ground that it was not specifically raised in the trial court. Before considering the merits of this claimed error, then, we must decide whether it is properly before us. We conclude that it is.

Practice Book § 4185 provides that the appellate courts "shall not be bound to consider a claim unless it was distinctly raised at the trial." (Emphasis added.) "The requirement that the claim be raised 'distinctly' means that it must be 'so stated as to bring to the attention of the court the precise matter on which its decision is being asked.' (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903)." State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).

Although the focus of the state's legal argument in support of its claim has shifted, there can be no real doubt that the claim made on appeal was the same claim made in the trial court, namely, that the trial court should not dismiss the information charging an offense of § 14-227a because under the Blockburger line of cases, the offenses set forth in §§ 14-227a and [16 Conn.App. 363] 53a-56b are not the same offense for double jeopardy purposes because each offense involves proof of an element that the other does not. ⁴ Accordingly, we will review the merits of the state's claim of error as refined by the state on appeal. See State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118 (1986).

The fifth amendment to the United States constitution declares that no person

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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[16 Conn.App. 364] 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 and personal liberty guarantees provided by article first, §§ 8 and 9, of the Connecticut constitution, therefore, have been held to encompass the 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).

One of the protections flowing from the double jeopardy guarantee is that against a second prosecution for the same offense after acquittal; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); or conviction. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). "The constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.... The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199 (1957).

With reference to these interests, however, "the United States Supreme Court has consistently declined to hold that double jeopardy requires the prosecution 'to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, [16 Conn.App. 365] episode, or transaction.' (Emphasis added.) Ashe v. Swenson, [397 U.S. 436, 453-54, 90 S.Ct. 1189, 1199, 25 L.Ed.2d 469 (1970) ] (Brennan, J., concurring)...." (Citation omitted.) State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985). ⁵ Because not all offenses arising out of a single episode must be tried together, the state insists that the only test to be applied in this case is that set forth in Blockburger v. United States, supra. The state argues that application of the Blockburger test to this case yields the conclusion that an acquittal of the charge of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b does not bar a subsequent prosecution for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.

In Blockburger v. United States, supra, the United States Supreme Court considered whether several offenses charged in a single prosecution were sufficiently different to permit the imposition of multiple sentences without violating the double jeopardy clause. It established a test emphasizing a comparison of the elements of the offenses. "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...