State v. Lonergan, 13640

• Citation: 213 Conn. 74,566 A.2d 677
• Decision Date: 28 November 1989
• Docket Number: No. 13640,13640
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. John LONERGAN.

Page 677

566 A.2d 677

213 Conn. 74

STATE of Connecticut v. John LONERGAN.

No. 13640.

Supreme Court of Connecticut.

Argued Oct. 5, 1989.

Decided Nov. 28, 1989.

Geoffrey E. Marion, Deputy Asst. State's Atty., with whom, on the brief, were John M. Bailey, State's Atty., Alan Reisner, Asst. State's Atty., and Maria Kahn, former legal intern, for appellant (state).

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

Before ARTHUR H. HEALEY, CALLAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

This appeal involves the issue of whether a charge brought against a defendant in a second prosecution constitutes, for double jeopardy purposes, the "same offense" for which the defendant has already been tried. In particular, the question presented is whether this court should make this determination simply by examining the statutory elements of the crimes, as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), or in addition, as suggested by In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), and its progeny, by examining the record to determine if the state will rely on the same evidence in the latter prosecution as it used in the former.

The Appellate Court's opinion revealed the following undisputed facts and procedural history of the case. See State v. Lonergan, 16 Conn.App. 358, 548 A.2d 718 (1988). On May 22, 1985, the defendant, John Lonergan, was driving a car on Airport Road in Hartford. At approximately 9 p.m., the defendant's vehicle collided with a motorcycle operated by Scott Sementilli. 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 On the following day, 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 charges.

The state elected to sever the two counts and proceeded to trial on the manslaughter count only. The manslaughter count was tried to the court and, 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, therefore, 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 on the ground that such a second prosecution was barred by the double jeopardy clause of the fifth amendment to the United States Constitution and article first, § 9 of the Connecticut constitution. The trial court ruled that the defendant's constitutional right against double jeopardy prevented the state from prosecuting him for operating a motor vehicle while under the influence. The state then appealed the trial court's ruling to the Appellate Court.

The Appellate Court affirmed the trial court's dismissal of the information charging the defendant with operating under the influence, and on February 22, 1989, this court granted the state's petition for certification, limited to this issue: "Did the Appellate Court err in holding that the double jeopardy clause bars a prosecution on a charge of operating a motor vehicle while under the influence of intoxicating liquor after acquittal of a charge of manslaughter in the second degree with a motor vehicle while intoxicated arising out of the same incident?" The state argues that the Appellate Court erred in holding that the prosecution of the defendant on the charge of operating a motor vehicle while under the influence of liquor was barred by the double jeopardy clause. Specifically, the state contends that the Appellate Court misconstrued both federal and state law pertaining to what constitutes double jeopardy in successive prosecution cases. In addition, the state maintains that the precedent set by the Appellate Court's decision is contrary to the purposes of the double jeopardy clause. We do not agree and, therefore, affirm the judgment of the Appellate Court.

I

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const., amend. V. This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). In addition, although the Connecticut constitution does not include a specific double jeopardy provision, this court "has long recognized as a fundamental 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). Therefore, the due process guarantees provided by article first, § 9 of the Connecticut constitution 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). The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (1) "It protects against a second prosecution for the same offense after acquittal. [ (2) ] It protects against a second prosecution for the same offense after conviction. [ (3) ] And it protects 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).

The state argues that the Appellate Court erred in holding that manslaughter in the second degree with a motor vehicle while intoxicated was the "same offense" as operating a motor vehicle under the influence of liquor, and thus the defendant's acquittal on the manslaughter count barred the state from prosecuting him on the count of operating while under the influence. The state asserts that the determination of whether the two crimes constituted the "same offense" should have been made solely by applying the test set forth in Blockburger v. United States, supra. In Blockburger, 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. Id., 284 U.S. at 304, 52 S.Ct. at 182. In so doing, the United States Supreme Court, emphasizing a comparison of the elements of the offenses, fashioned the following test: "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. This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented 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); see State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982).

The United States Supreme Court, in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977), extended the Blockburger test to apply to successive prosecution cases. In Brown, the state of Ohio had attempted to prosecute the defendant for the crime of auto theft after he had already been convicted of joyriding (taking or operating a motor vehicle without the owner's consent). Id., at 162-64, 97 S.Ct. 2223-25. Applying the Blockburger test, the court concluded that since joyriding did not require proof of an element distinct from auto theft, it was a lesser included offense of auto theft, and therefore the two crimes constituted the "same offense." Id., at 168-69, 97 S.Ct. at 2226-27.

In applying the Blockburger test to the present case, the Appellate Court correctly concluded that under this test manslaughter with a motor vehicle while intoxicated was not the same offense as operating under the influence, as each offense required proof of a fact that the other did not. See State v. Lonergan, supra, 16 Conn.App. at 366, 548 A.2d 718. A conviction of manslaughter in the second degree with a motor vehicle while intoxicated requires proof of (1) operation of a motor vehicle (2) while intoxicated (3) which causes the death of another person. General Statutes § 53a-56b; see footnote 2, supra. A conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs, requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) while under the influence of intoxicating liquor or drugs. General Statutes § 14-227a; see footnote 1, supra. As the Appellate Court accurately noted, "[w]hile these two offenses share certain elements, each contains an element that the other does not. A conviction for operating a motor vehicle while under the influence of alcohol must be supported by proof that the defendant operated a motor vehicle on one of the locations specified in the statute; such a geographical element is not pertinent to a conviction for manslaughter with a motor vehicle while intoxicated. A conviction for manslaughter with a motor vehicle while intoxicated must be supported by proof that another person died as a result of the defendant's intoxication; such a death element is not pertinent to a conviction for operating a motor vehicle while under the influence of alcohol. For these reasons, the two offenses are not...