State v. Martin

• Citation: 954 A.2d 256,110 Conn.App. 171
• Decision Date: 09 September 2008
• Docket Number: No. 25823.,25823.
• Parties: STATE of Connecticut v. Andre D. MARTIN.
• Court: Appellate Court of Connecticut

954 A.2d 256

110 Conn.App. 171

STATE of Connecticut v. Andre D. MARTIN.

No. 25823.

Appellate Court of Connecticut.

Submitted May 22, 2008.

Decided September 9, 2008.

Arthur L. Ledford, special public defender, for the appellant (defendant).

C. Robert Satti, Jr., senior assistant state's attorney, with whom, on the brief, was Jonathan C. Benedict, state's attorney, for the appellee (state).

BISHOP, GRUENDEL and ROBINSON, Js.

GRUENDEL, J.

This appeal is before us on remand from our Supreme Court. The defendant, Andre D. Martin, was convicted of attempt to possess one kilogram or more of marijuana with intent to sell by a person who is not drug-dependant in violation of General Statutes §§ 21a-278 (b) and 53a-49, possession of four ounces or more of a cannabis-type substance in violation of General Statutes § 21a-279 (b) and conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 21a-277 (b), 21a-278 (b) and 53a-48. He appealed from that judgment of conviction to this court, claiming that (1) his fifth amendment right against double jeopardy was violated when he was convicted of both attempted possession of marijuana with intent to sell and possession of marijuana, (2) the evidence was insufficient to support his conviction of possession of marijuana and attempted possession of marijuana and (3) the court improperly excluded from evidence two statements that exculpated him. In State v. Martin, 98 Conn.App. 458, 909 A.2d 547 (2006), this court addressed only the defendant's second claim and determined that the evidence was insufficient to support his conviction. We therefore reversed the judgment of the trial court and remanded the case with direction to render judgment of not guilty. The state sought certification to appeal from our Supreme Court, which was granted. In State v. Martin, 285 Conn. 135, 162, 939 A.2d 524 (2008), our Supreme Court reversed our decision, determined that there was sufficient evidence to support the defendant's conviction and remanded the case to us with direction to consider his remaining claims on appeal. After considering the defendant's remaining claims, we reverse in part the judgment of the trial court.

The facts of this case are set forth in our earlier opinion. See State v. Martin, supra, 98 Conn.App. at 460-65, 909 A.2d 547. We therefore will summarize the relevant facts. In May, 2003, the Bridgeport office of the federal Drug Enforcement Administration (DEA) was made aware of a suspicious package that was to be delivered to an address in Bridgeport. Instead of allowing it to be delivered, the DEA arranged for the package to be routed to the Yellow Freight Company (Yellow Freight) facility in Middletown. The DEA obtained a federal search warrant for the package and, upon searching it, discovered that it contained four white buckets and that each bucket contained one or more bundles heavily wrapped in plastic. Laboratory tests confirmed that the bundles contained marijuana and that the total weight of the material was approximately eighteen pounds.

At some point, the investigation was transferred to local authorities, and it was determined that they would conduct a controlled delivery of the package. All but 4.4 ounces of the marijuana was removed, and the remainder of the package was filled so as to approximate its original weight. Jeremy DiPietro, a detective with the Bridgeport police department, and a state police trooper thereafter took over the investigation, and the state trooper, working undercover, telephoned the person Yellow Freight was to contact to pick up the package and told that person to pick up the package at approximately noon the following day.

The following day, aerial and land surveillance revealed that a tan Mitsubishi Gallant entered the Yellow Freight parking lot with a man driving and a woman in the passenger seat. After the woman spoke with a Yellow Freight representative, the car left the parking lot and rendezvoused with a maroon Chevrolet occupied by the defendant and another individual. The Chevrolet then entered the lower parking lot of the facility, and the defendant exited the vehicle and walked around the lot looking at the vehicles as he passed them. He then returned to the vehicle, and it left the lot. After it left the lot, the Gallant returned, and the package was loaded into the car. The Gallant then left the facility and again rendezvoused with the Chevrolet, and the two cars proceeded to the highway and traveled together to 98 Holly Street in Bridgeport. After arriving at 98 Holly Street, the defendant helped an individual, later identified as Keith Mangan, carry the package up the stairs and into the house. Several minutes later, the police executed their search warrant of the house. They discovered the defendant in the living room and the package in a freestanding tub concealed by a shower curtain.

The state charged the defendant with attempt to possess one kilogram or more of marijuana with intent to sell by a person who is not drug-dependant in violation of §§ 21a-278 (b) and 53a-49, possession of four ounces or more of a cannabis-type substance in violation of § 21a-279 (b) and conspiracy to possess one kilogram or more of marijuana with intent to sell in violation of §§ 21a-277 (b), 21a-278 (b) and 53a-48. After a jury trial, the defendant was convicted on all counts. The court sentenced him to twelve years imprisonment on the attempted possession charge, five years imprisonment on the possession charge and twelve years imprisonment on the conspiracy charge, with the possession and conspiracy charges running concurrently with the attempted possession charge, for a total effective sentence of twelve years imprisonment.

I

The defendant claims that his fifth amendment right against double jeopardy was violated because he was convicted and sentenced for both attempted possession of marijuana with intent to sell and possession of marijuana, which he claims would have been one offense but for the intervening conduct of police.¹ We agree with the defendant.

The defendant concedes that this claim was not preserved at trial, and he now seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). Under Golding, a defendant, on appeal, can prevail on a constitutional claim of error when the claim was not raised in the trial court only if all of the following conditions are satisfied: "(1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." Id. "The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two ... involve a determination of whether the defendant may prevail." (Internal quotation marks omitted.) State v. Peeler, 271 Conn. 338, 360, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed.2d 110 (2005). The defendant's claim is reviewable because the first two prongs of Golding are met. In addition, for reasons stated herein, the defendant will prevail on his claim under the third prong of Golding.

"The double jeopardy clause of the fifth amendment to the United States constitution provides: [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.... The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment.... Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include protection against double jeopardy.... We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.... These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense." (Internal quotation marks omitted.) State v. Coltherst, 87 Conn.App. 93, 112, 864 A.2d 869, cert. denied, 273 Conn. 919, 871 A.2d 371 (2005).

Here, the defendant's claim implicates the protection against multiple punishments for the same offense.

Traditionally, when adjudicating double jeopardy claims, we apply the test set out in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), under which we look only to the charging instruments, bill of particulars and applicable statutes to determine whether multiple offenses arising out of the same act or transaction are the same offense for purposes of double jeopardy. The nature of this case, however, persuades us that Blockburger is not the correct analysis. This is not a case in which we are analyzing only the actions of the defendant to determine if charges that arise out of the same act or transaction constitute the same offense. Rather, we are analyzing the actions of the defendant in addition to intervening actions of the police to determine if, but for the actions of the police, the defendant would have been charged with multiple offenses. We conclude, therefore, that an alternate analysis applies in which we look to the facts of the case to determine whether the defendant properly was convicted and sentenced for possession of marijuana and attempted possession of marijuana with intent to sell.

The defendant was part of a conspiracy to possess eighteen pounds of marijuana that was mailed in a package from Arizona to Connecticut. When the police received a tip about the shipment, they intercepted it and...