State v. Nixon

• Decision Date: 03 January 1995
• Docket Number: No. 14866,14866
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Irving NIXON.

Page 1264

651 A.2d 1264

231 Conn. 545

STATE of Connecticut v. Irving NIXON.

No. 14866.

Supreme Court of Connecticut.

Argued Sept. 28, 1994.

Decided Jan. 3, 1995.

Donald C. Mahoney, Certified Legal Intern, with whom were Timothy H. Everett, Hartford, and, on the brief, Scott E. Perry, Certified Legal Intern, for appellant (defendant).

James M. Ralls, Asst. State's Atty., with whom, on the brief, was Patricia Swords, State's Atty., for appellee (State).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

The defendant, Irving Nixon, was convicted after a jury trial of all five counts of an information charging him with conspiracy to commit assault of an employee of the department of correction, accessory to assault of an employee of the department of correction, ¹ conspiracy to commit assault in the second degree, accessory to assault in the second degree ² and rioting at a correctional institution. The trial court sentenced the defendant to ten years each on counts one, two and five and to five years on count four. All sentences were to run concurrently with the ten year sentence imposed on count one. ³ The effective ten year sentence was to run consecutively to a sentence that the defendant was serving at the time of the assaults.

The defendant appealed from the trial court's judgment to the Appellate Court. In his appeal, he raised seven claims of error. The Appellate Court affirmed the trial court's judgment. State v. Nixon, 32 Conn.App. 224, 630 A.2d 74 (1993). We granted the defendant's petition for certification, limited to the following issue: "Under the circumstances of this case, did the Appellate Court properly conclude that the defendant's convictions, as an accessory, of assault in the second degree in violation of General Statutes § 53a-60(a)(5), and of assault o[f] a correctional officer in violation of General Statutes § 53a-167c(a)(1) did not violate the defendant's federal double jeopardy rights?" State v. Nixon, 228 Conn. 910, 635 A.2d 1229 (1993). We affirm the judgment of the Appellate Court.

The Appellate Court determined that the jury reasonably could have found the following facts. "The defendant was incarcerated in the segregation unit of the Somers correctional institution. On the morning of January 11, 1991, correction employees Moses Williams, John Pearson, Stewart Felton and Michael Rutkowski were on duty when the defendant returned to his cell unit.

"When he reentered the segregation unit, the defendant proceeded to cell number seventy-eight where another inmate, Francis Anderson, was incarcerated. Anderson was a particularly dangerous inmate. While correction employees were attempting to cuff Anderson's hands behind his back and shackle his feet, the defendant yelled 'pop seventy-eight,' a term used to request a correction employee to open a cell. In response, a prison employee mistakenly heeded the defendant's request. Anderson emerged from the cell unrestrained and proceeded toward a staircase. He ignored repeated orders to return to his cell.

"Pearson sought to restrain the defendant, but the defendant was unwilling to cooperate and obey orders. Pearson was concerned that the defendant posed a greater threat than did Anderson. As the defendant began to walk away, he asked Anderson to assault a correction employee in exchange for $200 in cash. Anderson agreed and punched Pearson in the jaw. Anderson tried to strike Pearson again while several other employees attempted to restrain him. In the course of the scuffle, Anderson threw Williams from his back and struck Rutkowski. As a result of Anderson's punch, Rutkowski sustained an injury to his forehead. Finally, with the help of the defendant, the officers regained control of Anderson and returned him to his cell." State v. Nixon, supra, 32 Conn.App. at 227-28, 630 A.2d 74.

The defendant argues that his sentences for his convictions of assault of a correction officer, as an accessory, in violation of §§ 53a-167c(a)(1) and 53a-8 and assault in the second degree, as an accessory, in violation of §§ 53a-60(a)(5) and 53a-8 violate his double jeopardy rights because, in this case, they constitute dual punishment for the same offense. We disagree.

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 [applies] to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); State v. Greco, 216 Conn. 282, 289, 579 A.2d 84 (1990); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989)." State v. Greco, supra, 216 Conn. at 289-90, 579 A.2d 84. Although the Connecticut constitution does not include a double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution encompasses protection against double jeopardy. Kohlfuss v. Warden 49 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S.Ct. 298, 9 L.Ed.2d 235 (1962); see also State v. Anderson, 211 Conn. 18, 25 n. 8, 557 A.2d 917 (1989). ⁴

"Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Internal quotation marks omitted.) State v. Greco, supra, 216 Conn. at 290-91, 579 A.2d 84. There is no dispute in this case that the crimes with which the defendant was charged, of which he was convicted and to which he was sentenced arose out of the same transaction. Thus, the sole issue is whether they constitute the same offense.

Traditionally we have applied the Blockburger test to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy: "[W]here 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." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). "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." State v. Lonergan, supra, 213 Conn. at 79, 566 A.2d 677. Thus, we must examine the language of §§ 53a-60(a)(5) and 53a-167c(a)(1), as well as the long form information filed in this case, ⁵ to determine if, as the defendant was charged, there was any element that the state was required to prove under one statute that was different from an element under the other.

Section 53a-60(a)(5), assault in the second degree, requires the state to prove that a person, while in the custody of the commissioner of correction and confined to any institution or facility of the department of correction, "with intent to cause physical injury to an employee of the department of correction ... causes physical injury" to such employee. Section 53a-167c(a)(1), assault of an employee of the department of correction, requires the state to prove that a person "with intent to prevent a reasonably identifiable ... employee of the department of correction from performing his duty, and while such ... employee is acting in the performance of his duties ... causes physical injury to such ... employee." The long form information with which the defendant was charged essentially duplicated this language. ⁶ The statute and information on each charge, therefore, require proof of elements that the statute and information on the other charge do not. The most significant of these differences involves the defendant's intent.

To prove assault in the second degree under § 53a-60(a)(5), the state must have proven that the defendant, while in the custody of the commissioner of correction and confined to a correction facility, intended to cause physical injury to an employee of the department of correction. To prove assault of an employee of the department of correction pursuant to § 53a-167c(a)(1), however, the state must have proven that the defendant intended to prevent a correction officer from performing his duty and that he thereby caused physical injury to the employee. The intent element in each statute consequently "requires proof of a fact which the other does not." Blockburger v. United States, supra, 284 U.S. at 304, 52 S.Ct. at 182. The defendant concedes that, if he had been charged as a principal with violating §§ 53a-60(a)(5) and 53a-167(a)(1), the state would have been required by each statute to prove at least one element not required by the other statute.

The defendant argues, however, that in this case assault in the second degree, pursuant to § 53a-60(a)(5), is a lesser included offense of assault of a correction officer, pursuant to § 53a-167c(a)(1), because the defendant, having been charged as an accessory, could not have committed the latter offense without necessarily having committed the former. The defendant asserts that he could be convicted as an accessory to assault in the second degree in violation of § 53a-60(a)(5) only if he encouraged Anderson to act, with the intent that Anderson cause physical injury. The defendant further asserts...