State v. Patrick

• Decision Date: 20 August 1996
• Docket Number: No. 15213,15213
• Citation: 681 A.2d 380,42 Conn.App. 640
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Michael PATRICK.

Page 380

681 A.2d 380

42 Conn.App. 640

STATE of Connecticut v. Michael PATRICK.

No. 15213.

Appellate Court of Connecticut.

Argued June 3, 1996.

Decided Aug. 20, 1996.

William W. Fisher, Jr., Cambridge, for appellant (defendant).

Michael L. Regan, Assistant State's Attorney, with whom, on the brief, was Kevin T. Kane, State's Attorney, for appellee (state).

Before LAVERY, LANDAU and SPALLONE, JJ.

LAVERY, Judge.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of possession of a narcotic substance with intent to sell in violation of General Statutes § 21a-278(b), ¹ possession of a controlled substance within 1500 feet of real property comprising a public elementary school in violation of General Statutes (Rev. to 1993) § 21a-278a(b), ² possession of a cannabis-type substance in violation of General Statutes § 21a-279(c), ³ and possession of drug paraphernalia in a drug factory situation in violation of General Statutes § 21a-277(c). ⁴ The defendant claims that (1) his conviction constituted a violation of his right not to be placed in double jeopardy, (2) General Statutes (Rev. to 1993) § 21a-278a(b) is unconstitutionally vague as applied to him, and (3) he was not afforded effective assistance of counsel as guaranteed by the United States and Connecticut constitutions. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 27, 1994, members of the New London police department and the statewide narcotics task force executed a search warrant for the defendant's person, his two-story residence at 272 Colman Street, and several of his motor vehicles. At the residence, the police found the defendant, his wife, and his daughter.

The defendant was advised of his rights and promptly waived them. The defendant subsequently informed the police of the location of the drugs in his residence. The police searched the first floor of the defendant's residence and found marijuana, money, and a key. The police used this key to open a locked room on the second floor of the defendant's residence. In this locked room the police found cocaine, a scale, several plastic bags, and an empty bottle of Inositol. ⁵ The defendant's residence is located approximately 1115 feet from Edgerton Elementary School.

I

The defendant first claims that he was deprived of his right not to be put in double jeopardy because he was convicted and sentenced to consecutive sentences for possession of a narcotic substance with intent to sell and possession of a controlled substance within 1500 feet of real property comprising a public elementary school. The defendant claims that his unpreserved claim is entitled to appellate review under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

A defendant can prevail on an unpreserved claim only if "all of the following conditions are met: (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., at 239-40, 567 A.2d 823. The defendant's claim meets the first two prongs of Golding and is, therefore, subject to review. State v. Lemoine, 39 Conn.App. 657, 663 n. 8, 666 A.2d 825 (1995). We conclude, however, that the defendant's claim fails to satisfy 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. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969); 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, 2225, 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, 216 Conn. 282, 289-90, 579 A.2d 84 (1990).

Although the Connecticut constitution does not include a specific double jeopardy provision, the due process guarantee of article first, § 9, of our state constitution has been held to encompass 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); see also State v. Anderson, 211 Conn. 18, 25 n. 8, 557 A.2d 917 (1989). Nevertheless, we have not held that our state constitution affords any greater due process rights than those afforded under the federal constitution's double jeopardy clause. State v. Laws, 37 Conn.App. 276, 294-95, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

The defendant claims that his convictions and sentences for violation of General Statutes §§ 21a-278 and 21a-278a(b) have punished him twice for the same offense. "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...." (Citation omitted; internal quotation marks omitted.) State v. Greco, supra, 216 Conn. at 290-291, 579 A.2d 84.

In the present case, the state concedes, and we agree, that the convictions at issue arise out of the same transaction. The state concedes this first prong of this test is met because "it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser." State v. Morin, 180 Conn. 599, 601, 430 A.2d 1297 (1980). "In deciding whether the crimes arose out of the same act or transaction, we analyze the language of the information." 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). This court has also held that any ambiguity in the information must be construed in the defendant's favor. State v. Glover, 40 Conn.App. 387, 391, 671 A.2d 384 (1996).

The defendant was charged with violating § 21a-278(b) and § 21a-278a(b) in counts one and two of an information dated September 27, 1994. ⁶ Our review of the substitute information leads us to conclude that the charges arise out of the same transaction.

The defendant could not have been guilty of violating § 21a-278a(b), possession with intent to sell within 1500 feet of a school, without first committing the crime of possession with intent to sell as defined by § 21a-278(b). The state also concedes that § 21a-278(b) is a lesser included offense of § 21a-278a(b). Under a traditional Blockburger ⁷ analysis, both of the crimes would be considered the "same offense," thereby meeting the second prong of the test. Our double jeopardy analysis, however, does not end there.

"[T]he Blockburger test is not a conclusive presumption of law; Garrett v. United States, 471 U.S. 773, 779, 105 S.Ct. 2407, 2411-12, 85 L.Ed.2d 764 (1985); but is a rule of statutory construction and should not be controlling where there is a clear indication of contrary legislative intent. Missouri v. Hunter, 459 U.S. 359, 367, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983). As a rule of statutory construction, the Blockburger test 'does no more than create a rebuttable presumption.' State v. Delgado, 19 Conn.App. 245, 251-52, 562 A.2d 539 (1989). The determinative question is whether the legislature intended the offenses to be separate. State v. Smart, 37 Conn. App. 360, 365, 656 A.2d 677 (1995)." State v. Braswell, 42 Conn.App. 264, 269, 679 A.2d 407 (1996).

We find adequate legislative intent that § 21a-278a(b) authorizes cumulative punishment that can be imposed in addition to a defendant's sentence for violation of § 21a-278(b). We are aware that " '[t]he Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislative history.' " State v. Greco, supra, 216 Conn. at 292, 579 A.2d 84. Furthermore, "the language, structure and legislative history of a statute can provide evidence of this intent." Id., at 293, 579 A.2d 84.

First, the language of § 21a-278a(b) manifests a clear legislative intent to provide an enhanced punishment for violating General Statutes §§ 21a-277 or 21a-278 within 1500 feet of a school. Section 21a-278a(b) specifically provides that a person who violates this statute "shall be imprisoned for a term of three years, which shall not be suspended and shall be in addition and consecutive to any term of imprisonment imposed for violation of section 21a-277 or 21a-278." (Emphasis added.) Section 21a-278a(b) on its face demonstrates the legislative intent to impose the added sanction of three years imprisonment for committing the same offense as proscribed by § 21a-278(b) within 1500 feet of a school.

Second, legislative intent to impose cumulative punishments may also be seen in the comments of legislators when enacting § 21a-278a(b). During the discussion in the General Assembly concerning the passage of Public Acts 1987, No. 87-373, Representative Eugene A. Migliaro, Jr., stated: "There's two factors here that people have been kicking around. One is the 5 year sentence plus the additional 2 year sentence if you're within the thousand feet [of a...