State v. Mincewicz

• Decision Date: 07 August 2001
• Docket Number: (AC 19210)
• Citation: 781 A.2d 455,64 Conn. App. 687
• Court: Connecticut Court of Appeals
• Parties: STATE OF CONNECTICUT v. JOSEPH J. MINCEWICZ

64 Conn. App. 687

781 A.2d 455

STATE OF CONNECTICUT v. JOSEPH J. MINCEWICZ

(AC 19210)

Appellate Court of Connecticut.

Argued September 12, 2000.

Officially released August 7, 2001.

Lavery, C. J., and Schaller and O'Connell, Js. Lisa J. Steele, special public defender, for the appellant (defendant).

Rita M. Shair, assistant state's attorney, with whom, on the brief, were Kevin Kane, state's attorney, and Lisa Herskowitz, assistant state's attorney, for the appellee (state).

Opinion

O'CONNELL, J.

The defendant appeals from his judgment of conviction, following a jury trial, of assault of a peace officer in violation of General Statutes § 53a-167c (a) (1), interfering with an officer in violation of General Statutes § 53a-167a, larceny in the sixth degree in violation of General Statutes § 53a-125a and two counts of criminal trespass in the first degree in violation of General Statutes § 53a-107 (a) (1). On appeal the defendant claims that (1) conviction of both assault of a peace officer and interfering with an officer constitutes double jeopardy, (2) the trial court improperly interfered with his right to present a defense and (3) the trial court improperly handled his claim of irreparable breakdown in his relationship with his lawyer. We affirm the judgment in part and reverse it in part.

The following facts are relevant to the disposition of this appeal. On February 23, 1998, the defendant was ejected from the Mohegan Sun Casino for "capping a bet," i.e. attempting to place an additional amount on a bet already placed after the patron realizes he will win the hand, but after the time for placing bets has passed. Casino security explained to the defendant that if he returned he would be arrested for criminal trespass.

Despite this warning, the defendant returned on March 3, 1998. He was confronted by three members of the Connecticut state police, Sergeant Maurice Parker, Detective Lance Becker and Trooper Janet Kametz, who took him to their office where he was arrested for criminal trespass.

During the booking process, the defendant became uncooperative and began screaming, shouting obscenities, pushing and shoving. During this melee, the defendant struck Parker in the face. Parker, Becker and Kametz forced the defendant to the floor, handcuffed him and placed him in a chair for the remainder of the process. Kametz and Becker attempted to place the defendant's personal property in an envelope before transporting him to the state police barracks. The defendant again became obstreperous and refused to remove a neck chain and religious medallion. A second struggle ensued, and the officers were forced to use pepper spray to subdue him.¹

I

The double jeopardy claim implicates the second and third counts of the information.² The relevant portion of the second count charges that the defendant "caused physical injury to Sergeant Maurice Parker of the Connecticut State Police ... while Sergeant Parker was acting in the performance of his duties ... with the intent to prevent [him] from performing his duty."³ The relevant portion of the third count charges that the defendant "obstructed, resisted, hindered and endangered a member of the Connecticut State Police in the performance of his or her duties."⁴

To prevail on his claim that his conviction on counts two and three violate his constitutional protection against double jeopardy, the defendant must show that (1) the charged offenses arose out of the same act or transaction and (2) the two convictions are for the same offense. State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995). Multiple punishments are forbidden only if both conditions are met. Id.

The state argues that the assault on Parker in the second count had been completed and that the third count refers to the slightly later incident when the defendant resisted the two other troopers who were preparing to transport him to the barracks and, thus, the state maintains, the charged offenses arose from different acts. Although the evidence presented at trial appears to support this contention, we are confronted with the threshold issue of whether, in a multiple punishment double jeopardy case, we may consider the evidence presented at trial or whether we are limited to consideration of the charging documents.

It repeatedly has been held that to determine whether two charges arose from the same act or transaction, we look to the information, as amplified by the bill of particulars, if any. State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979); accord State v. Devino, 195 Conn. 70, 75, 485 A.2d 1302 (1985); State v. Williams, 59 Conn. App. 603, 606-607, 757 A.2d 1191, cert. denied, 254 Conn. 946, 762 A.2d 907 (2000); State v. Patrick, 42 Conn. App. 640, 645, 681 A.2d 380 (1996); State v. Coleman, 41 Conn. App. 255, 275, 675 A.2d 887 (1996), rev'd on other grounds, 242 Conn. 523, 700 A.2d 14 (1997); State v. Glover, 40 Conn. 387, 391, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996); State v. Smart, supra, 37 Conn. App. 365; State v. Roy, 34 Conn. App. 751, 768, 643 A.2d 289 (1994), rev'd on other grounds, 233 Conn. 211, 658 A.2d 566 (1995); State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322, cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied, 506 U.S. 844, 113 S. Ct. 133, 121 L. Ed.2d 86 (1992); State v. Marsala, 1 Conn. App. 647, 650, 474 A.2d 488 (1984).

Also, where an information charges the defendant with two counts that can fairly be construed as the same act and where the information states the time, date and location, the charged offenses are generally regarded as arising out of the same act or transaction. State v. Flynn, 14 Conn. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed.2d 217 (1988). Indeed, this court has determined that where an information "fails to state the nature of the alleged acts with sufficient particularity to determine whether they are in fact the same act or transaction, we construe the ambiguity in favor of the defendant and conclude that the charges arise out of the same act or transaction for double jeopardy purposes." (Internal quotation marks omitted.) State v. Coleman, supra, 41 Conn. App. 276.

In the present case, the information alleges that both crimes were committed at the same time and place (i.e., March 3, 1998, at the Mohegan Sun Casino in Montville). For purposes of this analysis, the sole distinction between the two counts is that the second count specifies Parker as the victim, and the third count does not name the particular member of the state police who was the victim. It is clear, however, that both counts charge the defendant with interfering with a state police officer who was trying to perform the officer's duties at the Mohegan Sun Casino in Montville on March 3, 1998. The obvious question is whether one can tell from looking at the information whether Parker, who was the officer whose assault is alleged in count two, was the unnamed state police member whom count three charges was obstructed, resisted, hindered and endangered in the performance of his or her duties. The absence of a bill of particulars complicates our inquiry; see State v. Mezrioui, 26 Conn. App. 395, 402 n.4, 602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d 169 (1992); and the information is, at best, ambiguous.

Although no case explicitly says that the evidence presented at trial may not be considered in determining whether two crimes arose from the same transaction, that fact is certainly implied in the cases that hold that the court looks to the information and the bill of particulars. Once before, in State v. Flynn, supra, 14 Conn. App. 16, the state urged us to consider the evidence presented at trial in determining whether the charges arose from the same act or transaction. We declined the state's invitation then, and, in light of the well established precedent requiring us to consider the information and the bill of particulars, we see no reason to deviate from that position.

Our review of the information leaves us unable to determine whether the charges arose from the same act or transaction, and, therefore, we resolve the ambiguity in the defendant's favor and conclude that the charges did so arise.

As mentioned previously, however, there is no double jeopardy violation unless the crimes are also the "same offense" for double jeopardy purposes. In Flynn, this court held that the crime of interfering with an officer is a lesser included offense of assault of a peace officer. Id., 18. "For purposes of double jeopardy, a greater offense is the `same offense' as any lesser included offense, and vice versa, Brown v. Ohio, 432 U.S. 161, 168, 97 S. Ct. 2221, 2226-27, 53 L. Ed.2d 187 (1977)"; Boyd v. Meachum, 77 F.3d 60, 63 (2nd Cir. 1996); and, therefore, the imposition of multiple punishments for both these offenses violates the double jeopardy prohibitions of the state and federal constitutions.

According to State v. Chicano, 216 Conn. 699, 721-25, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed.2d 1062 (1991), the remedy in a case such as this is to combine the conviction on the lesser included offense with the conviction on the greater and to vacate the sentence on the lesser included offense. Accordingly, the defendant's conviction of interfering with an officer must be combined with his conviction of assault of a peace officer, and his sentence for interfering with an officer must be vacated.

II

The defendant next claims that the court interfered with his right to present a defense because it improperly found that (1) he failed to give timely notice of his affirmative defense of mental disease or defect⁵ and (2) his family members violated a sequestration order, thus barring them from testifying. We are not persuaded.

A

Practice Book § 40-17 requires a defendant who intends to rely upon the affirmative defense of...