State v. Nixon

• Decision Date: 13 December 2005
• Docket Number: No. 24960.,24960.
• Citation: 92 Conn.App. 586,886 A.2d 475
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. James NIXON.

886 A.2d 475

92 Conn.App. 586

STATE of Connecticut v. James NIXON.

No. 24960.

Appellate Court of Connecticut.

Argued September 23, 2005.

Decided December 13, 2005.

Andrew S. Liskov, special public defender, for the appellant (defendant).

Troy F. Tatting, certified legal intern, with whom were Susann E. Gill, senior assistant state's attorney, and, on the brief, Mary M. Galvin, state's attorney, and Kevin S. Russo, assistant state's attorney, for the appellee (state).

SCHALLER, FLYNN and McLACHLAN, Js.

FLYNN, J.

The defendant, James Nixon, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the second degree in violation of General Statutes § 53a-60 (a) (2).¹ The defendant was sentenced to a term of two and one-half years imprisonment, followed by two and one-half years of special parole on each count, with the sentences to run consecutively to each other, for an effective sentence of five years to serve followed by five years of special parole. On appeal, the defendant claims that (1) the conviction and sentence on two counts of assault in the second degree, arising from one continuous assault against one victim, violated his rights guaranteed by the double jeopardy clause of the fifth amendment to the United States constitution, and (2) the court improperly charged the jury on consciousness of guilt inferences. We agree with the defendant that his rights under the double jeopardy clause were violated by his conviction of two counts of assault in the second degree, and we remand the case to the trial court with direction to combine the conviction of two counts of assault and to resentence the defendant on one count of assault in the second degree.²

The jury reasonably could have found the following facts. The victim, Cloyde Dixon, shared a home with several roommates, one of whom was the defendant. On the evening of September 24, 2002, the defendant and another roommate were arguing. The victim, seeing that the defendant was intoxicated, told the two roommates to finish their argument downstairs so that he could get some sleep. Sometime thereafter, the victim went into the kitchen to get a glass of water, and the defendant came upstairs from the basement. The defendant then attacked the victim, stabbing him twice, once in the leg and once behind his left shoulder. The two then struggled, and the victim was able to wrestle the knife from the defendant, who repeatedly told the victim that he was sorry. The defendant picked up the knife and proceeded to walk out of the back door. The entire altercation took only a couple of minutes.

Officer Tom Flaherty of the West Haven police department responded to the call of a fight at the residence of the defendant and the victim. While approaching the home, Flaherty noticed the defendant, in an intoxicated state, walking away from the scene. Flaherty handcuffed the defendant, detained him in the police car and went inside the residence, where he encountered the wounded victim. The victim identified the defendant as his attacker, and Flaherty placed the defendant under arrest.

The state, in a long form information, charged the defendant with two counts of assault in the second degree in violation of § 53a-60 (a)(2) for intentionally causing physical injury to the victim by means of a deadly weapon or dangerous instrument, two counts of assault in the second degree in violation of § 53a-60 (a)(3), for recklessly causing physical injury to the victim by means of a deadly weapon or dangerous instrument and two counts of reckless endangerment in the first degree in violation of General Statutes § 53a-63 (a) for recklessly engaging in conduct, with extreme indifference to human life, that created a risk of serious physical injury to the victim. The state entered a nolle prosequi on all charges with the exception of the first two counts of assault in the second degree, for which the defendant was tried, convicted and ultimately sentenced. This appeal followed.

I

The defendant first claims that the state charged him in a multiplicitous information³ and that the conviction and sentence on two counts of assault in the second degree, arising from one continuous assault perpetrated against one victim in a short period of time at the same location, violated his rights as guaranteed by the double jeopardy clause of the fifth amendment to the United States constitution and the constitution of Connecticut.⁴ We agree.

The defendant concedes that his claim was not preserved at trial and seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).⁵ Such review is warranted. See State v. Crudup, 81 Conn.App. 248, 252, 838 A.2d 1053, cert. denied, 268 Conn. 913, 845 A.2d 415 (2004). "A defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial.... Because the claim presents an issue of law, our review is plenary." (Citations omitted.) Id.

"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." (Internal quotation marks omitted.) State v. D'Antonio, 274 Conn. 658, 714-15, 877 A.2d 696 (2005). Here, counts one and two of the amended long form information, the counts on which the defendant was convicted, both charged that "at the Town or City of West Haven, on or about the 24th day of September, 2002, in the area of 126 Taft Avenue, the [defendant], with intent to cause physical injury to another person, caused such injury to another person, specifically Cloyde Dixon, by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm, in violation of Connecticut General Statutes section 53a-60 (a)(2)." Although we believe that the information alone is sufficient to meet the first prong, i.e., same victim, same time period, same instrument, we also note that the evidence produced at trial demonstrated that the defendant twice stabbed the same victim, at the same place and during the same time period, with the same instrument, with the same common intent to inflict physical injury during one continuous, uninterrupted assault. Thus, the first prong of the double jeopardy analysis is met. See State v. Devino, 195 Conn. 70, 74, 485 A.2d 1302 (1985); State v. Flynn, 14 Conn.App. 10, 17, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S.Ct. 226, 102 L.Ed.2d 217 (1988).

"Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.... It is well settled that [t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute.... As [was] noted in State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985), the issue, though essentially constitutional, becomes one of statutory construction. [Our Supreme Court] recently interpreted a number of criminal statutes to determine the same issue: whether the legislature intended to allow punishment for two separate violations of the same statutory provision.... In these cases, [the Supreme Court] found that the pivotal question was whether the statutes defined crimes against the individual persons." (Citation omitted; internal quotation marks omitted.) State v. D'Antonio, supra, 274 Conn. at 715-16, 877 A.2d 696.

The state argues that the defendant's conviction and sentence on both counts of assault were proper because the jury reasonably could have found that the defendant twice intentionally stabbed the victim and that "each stabbing by the defendant constituted a separate, complete and chargeable offense under ... § 53a-60 (a)(2) ...." To support this contention, the state offers several cases concerning sexual assault. Although we agree that in the context of sexual assault, the legislature has expressed a clear intention that each act of penetration be charged as a separate offense; see State v. Scott, 270 Conn. 92, 99-100, 851 A.2d 291 (2004), cert. denied, ___ U.S. ___, 125 S.Ct. 1861, 161 L.Ed.2d 746 (2005);⁶ we do not agree that such an intent has been demonstrated in the context of an assault in the second degree, where a single victim is stabbed twice during one continuous, uninterrupted assault occurring in a matter of a few minutes. As we explained in State v. Cassidy, 3 Conn.App. 374, 388, 489 A.2d 386, cert. denied, 196 Conn. 803, 492 A.2d 1239 (1985), in the context of a sexual assault, "each assault upon [a] victim involve[s] a separate act of will on the part of the defendant and a separate indignity upon the victim.... [T]he legislative intention was that each [sexual] assault should be deemed an additional offense.... To interpret the statute otherwise would be to strip it of all its sense." (Citation omitted; internal quotation marks omitted.) Id. Such is not the case here.

The state also offers as support for its argument the case of State v. Tweedy, 219 Conn. 489, 594 A.2d 906 (1991), in which the defendant was convicted, inter alia, of robbing a single victim twice within a thirty minute time period. In Tweedy, the defendant forced his way into the victim's apartment, robbed her once, sexually assaulted her and then made her walk with him to a bank to withdraw money from her account using an automatic teller machine, thereby robbing her a second time. Under the facts of Tweedy, the robberies were separated by a sexual assault, requiring a different mens rea, and they occurred in two different locations. Here, the defendant and the victim were in an altercation, which, by the victim's own testimony, occurred over the course of a few minutes, in the same location, between the same two peopl...