State v. Peay

• Decision Date: 11 July 2006
• Docket Number: No. 25307.,25307.
• Citation: 96 Conn.App. 421,900 A.2d 577
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Abdul PEAY.

Page 577

900 A.2d 577

96 Conn.App. 421

STATE of Connecticut v. Abdul PEAY.

No. 25307.

Appellate Court of Connecticut.

Argued March 23, 2006.

Decided July 11, 2006.

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Katharine S. Goodbody, special public defender, for the appellant (defendant).

Melissa Streeto Brechlin, assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, Richard Morelli, supervisory assistant state's attorney, and Carl R. Ajello III, assistant state's attorney, for the appellee (state).

SCHALLER, HARPER and STOUGHTON, Js.

HARPER, J.

The defendant, Abdul Peay, appeals from the judgment of conviction, rendered after a jury trial, of burglary in the first degree in violation of General Statutes § 53a-101(a)(1), burglary in the first degree in violation of General Statutes § 53a-101(a)(2), assault in the second degree in violation of General Statutes § 53a-60(a)(2) and interfering with an officer in violation of General Statutes § 53a-167a(a).¹ The defendant claims that (1) his conviction of two counts of burglary violated the constitutional prohibition against double jeopardy, (2) the court improperly disallowed certain evidence, (3) the evidence was insufficient to support his conviction of any of the crimes of which he stands convicted and (4) the court improperly relied on an inaccurate presentence investigation report at the time of sentencing. We affirm the judgment of the trial court.

On the basis of the evidence presented at trial, the jury reasonably could have made the following findings of fact. On April 17, 2003, Edwin Carter was the superintendent of an apartment building in Hartford. Generally, Carter had maintenance and caretaking duties in and around the building. Carter lived in an apartment in the building's basement, near the laundry room. The laundry room, like most areas of the building, was not an area of the building open to the public and was accessible only through locked security doors. Tenants and other authorized persons possessed keys with which to gain access to these areas.

At approximately 11:30 p.m., Carter heard noises coming from the laundry room. Carter went to the doorway of the laundry room and observed the defendant standing near a coin operated laundry machine. The defendant was not a tenant of the building. Carter asked the defendant what he was doing there. The defendant, who was attempting to pry open the coin box on a laundry machine, replied, "[w]hat does it look like?" The defendant moved toward Carter, while Carter was standing in the laundry room's doorway, and struck him on the head with a crowbar, causing a significant injury.

The defendant ran from the laundry room. Carter, despite feeling the ill effects of his head injury, pursued the defendant and pulled him to the ground. The defendant made his way to the building's lobby, where he and Carter continued to "wrestle" with each other. The defendant attempted to strike Carter with a Sheetrock knife and a screwdriver and bit Carter on the chest. After breaking a glass door in the lobby, the defendant made his way to the small lawn in front of the building. Carter pursued the defendant outside and began shouting for assistance. Carter restrained the defendant against a fence until the police arrived.

Brian Salkeld and Shawn St. John, officers with the Hartford police department, then separated the defendant and Carter. The officers spoke with witnesses at the scene, including Carter. Carter recounted the relevant events that had transpired, and the officers investigated the laundry room. On the basis of their interviews and their investigation of the laundry room, which revealed evidence of the defendant's efforts to pry open the coin boxes on two laundry machines, the officers decided to place the defendant under arrest and take him into police custody. When the officers attempted to place handcuffs on the defendant, the defendant became hostile and uncooperative. The officers physically struggled with the defendant as they handcuffed him. The defendant shouted threats at the officers; he disobeyed or was slow to comply with the officers' various commands.

I

The defendant first claims that his conviction of the two counts of burglary in the first degree violated the constitutional prohibition against double jeopardy. We will review the defendant's unpreserved double jeopardy claim under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),² and conclude that no constitutional violation exists.³

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 of the fifth amendment, which "represents a fundamental ideal in our constitutional heritage," is made applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). "The fifth amendment's prohibition of double jeopardy protects persons against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense in a single trial." State v. Brooks, 88 Conn.App. 204, 214-15, 868 A.2d 778, cert. denied, 273 Conn. 933, 873 A.2d 1001 (2005).

The defendant's claim that he was improperly convicted of two counts of burglary in the first degree in violation of § 53a-101(a)(1) and (2) involves the third category of double jeopardy analysis. "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. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993).

It is clear from our reading of the state's long form information and undisputed by the parties that the burglary offenses of which the defendant was convicted arose out of the same transaction or occurrence. Our analysis is tailored to determining whether the two burglary offenses are the same for double jeopardy purposes. The defendant argues that subdivisions (1) and (2) of § 53a-101(a)⁴ are "conceptually indistinct" and not separate offenses. The defendant posits that these subdivisions codify alternate methods of committing the crime of burglary in the first degree, not separate offenses. Essentially, the defendant argues that he was punished twice for the same conduct because he was convicted of multiple violations of the same statutory provision, § 53a-101(a), and that the legislature did not authorize by means of that provision multiple punishments for the single criminal act or transaction at issue. The state argues that subdivisions (1) and (2) of § 53a101 (a) codify distinct offenses for purposes of double jeopardy. The state argues that the defendant was convicted of two separate offenses during a single criminal transaction and that his conviction, therefore, did not violate double jeopardy principles. We agree with the state.

"The test for determining whether two charged offenses constitute the same offense for double jeopardy purposes was set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [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. . . . In conducting this inquiry, we look only to the relevant statutes, the information, and the bill of particulars, not to the evidence presented at trial. . . . The issue, though essentially constitutional, becomes one of statutory construction." (Citations omitted; internal quotation marks omitted.) State v. Woodson, supra, 227 Conn. at 8-9, 629 A.2d 386. "Under the Blockburger test, a defendant may be convicted of two offenses arising out of the same criminal incident if each crime contains an element not found in the other." (Internal quotation marks omitted.) State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991). "The term `element' as used in the Blockburger analysis . . . means any fact that the legislature has deemed essential to the commission of the crime." State v. Woodson, supra, at 10, 629 A.2d 386.

Our review of § 53a-101(a) and the state's long form information reveals that the crimes of burglary in the first degree in violation of § 53a-101(a)(1) and burglary in the first degree in violation of § 53a-101(a)(2) each contain an element that the other does not.⁵ To convict the defendant under § 53a-101(a)(1), the state had to prove, as alleged in count one of the state's long form information, that the defendant entered or remained unlawfully in a building with the intent to commit a crime therein and that he was armed with a dangerous instrument. To convict the defendant under § 53a-101(a)(2), the state had to prove, as alleged in count two of the state's long form information, that the defendant entered or remained unlawfully in a building with the intent to commit a crime therein and that in the course of committing the crime, he intentionally, knowingly or recklessly inflicted bodily injury on another person.

Under Blockburger, the offenses at issue are separate for double jeopardy purposes. The Blockburger test is a rule of statutory construction; its application does not give rise to a conclusive presumption of law. State v. Lonergan, 213 Conn. 74, 88 n. 5, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990), overruled in part by State v. Alvarez, 257 Conn. 782, 794-95, 778 A.2d 938 (2001). Application of the test ...