State v. Porter
| Decision Date | 29 April 2003 |
| Docket Number | No. 22802.,22802. |
| Citation | 819 A.2d 909,76 Conn.App. 477 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Kenneth PORTER. |
H. Owen Chase, special public defender, for the appellant (defendant).
Lucio DeLuca, certified legal intern, with whom were Rita M. Shair, senior assistant state's attorney, and, on the brief, John A. Connelly, state's attorney, and Catherine C. Brannelly Austin, senior assistant state's attorney, for the appellee (state).
The defendant, Kenneth Porter, appeals from the judgment of conviction, rendered after a jury trial, of assault of public safety or emergency medical personnel in violation of General Statutes § 53a-167c(a)(1),1 interfering with an officer in violation of General Statutes (Rev. to 1999) § 53a-167a(a),2 and breach of the peace in violation of General Statutes (Rev. to 1999) § 53a-181(1) and (2).3 On appeal, the defendant claims that (1) the court violated his constitutional guarantee against double jeopardy, (2) the state produced insufficient evidence to establish that he had the requisite intent to breach the peace, to assault a peace officer and to interfere with a peace officer, and (3) the court violated his right to counsel under the sixth and fourteenth amendments to the United States constitution by failing to canvass him adequately to determine if he was making a knowing, voluntary and intelligent waiver of his right to counsel in accordance with Practice Book § 44-3.4 We affirm in part and reverse in part the judgment of the trial court.
The jury reasonably could have found the following facts. On December 2, 2000, Richard Sutphin was driving a public utilities truck on Cooke Street in Waterbury. Sutphin was forced to stop the truck at the intersection of Cooke Street and Buckingham Street because the defendant was in the roadway, pushing a car. When the car that the defendant was pushing was driven away, the defendant approached the front of Sutphin's truck. Upon reaching the truck, the defendant began to yell, pull his hair out, and wildly strike the truck with his fists and head. The defendant continued that behavior for approximately fifteen minutes. During that time, Sutphin radioed for police assistance, left the truck and ran toward an approaching police car that was driven by Sergeant Paul Ezzo of the Waterbury police department.
At that time, the defendant, seeing an approaching vehicle driven by Andelino Vilar, turned away from the truck and jumped onto the hood of Vilar's car. The defendant began to strike the car. During the attack, the defendant reached through an open window, grabbed Vilar's sweater and attempted to pull Vilar out of the vehicle.
Ezzo approached the defendant and informed him that he was placing him under arrest. The defendant began to swing, kick and bite at Ezzo. Ezzo, Sutphin and Ted Peil, a private citizen, attempted to restrain the defendant. While wrestling the defendant to the ground, Ezzo called for additional police assistance and was repeatedly struck by the defendant. Ezzo sprayed the defendant with Mace. The Mace had little or no effect on the defendant. When additional police support arrived, it eventually took seven officers approximately thirty minutes to subdue and to place the defendant under arrest.
The defendant was charged with one count of assault in the third degree in violation of General Statutes § 53a-61, two counts of breach of the peace in violation of § 53a-181(a)(1) and (2), one count of criminal mischief in the third degree in violation of General Statutes § 53a-117(a)(1), two counts of assault of public safety personnel in violation of § 53a-167c(a) and two counts of interfering with an officer in violation of § 53a-167a(a).
After a jury trial, at which the defendant represented himself with the assistance of standby counsel, the defendant was convicted of one count of assault of public safety personnel, one count of interfering with an officer and two counts of breach of the peace. The defendant now appeals. Additional facts will be provided as necessary.
The defendant first claims that the court violated his constitutional guarantee against double jeopardy. Specifically, the defendant argues that the court improperly refused to instruct the jury that interfering with an officer is a lesser offense included in the greater offense of assault of public safety personnel in violation of the fifth and fourteenth amendments5 to the United States constitution.6
The following additional facts are necessary to the resolution of this claim. The defendant was initially charged in an eight count information. On November 1, 2001, the state filed a part B information charging the defendant with being a persistent serious felony offender in violation of General Statutes (Rev. to 1999) § 53a-40(b), now (c).7
On November 5, 2001, the state filed a long form substitute information. Counts five and six, respectively, accused the defendant of assault of a peace officer in violation of General Statutes § 53a-167c(a)(1) relative to acts that occurred "shortly after 2:00 in the afternoon of December 2, 2000, on or about 191 Cooke Street in the City of Waterbury, CT [where] the said Kenneth Porter did with intent to prevent a reasonably identifiable peace officer from performing his duties and while such peace officer was acting in the performance of his duties, he caused physical injury to such peace [officers]" Richard Valente and Ezzo. Counts seven and eight, respectively, accused the defendant of interfering with an officer in violation of § 53a-167a(a) relative to acts that occurred "at a time shortly after 2:00 in the afternoon on December 2, 2000, on or about 191 Cooke Street in the City of Waterbury, CT [where] the said Kenneth Porter did obstruct, resist, hinder or endanger ... peace [officers]" Valente and Ezzo.
The jury trial commenced on November 7, 2001. On November 13, 2001, the court dismissed counts one and four of the information, which alleged assault in the third degree and criminal mischief in the third degree, respectively. On November 14, 2001, the jury returned a guilty verdict with respect to counts two, three, six and eight. The defendant was acquitted of the charges alleged in counts five and seven.8
Although the defendant admits that he raises this claim of double jeopardy, arising in the context of a single trial, for the first time on appeal, our Supreme Court has ruled that such double jeopardy claims are reviewable under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), if the four prongs of Golding are satisfied.9 See State v. Chicano, 216 Conn. 699, 704-705, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S.Ct. 2898, 115 L.Ed.2d 1062 (1991); see also State v. Denson, 67 Conn.App. 803, 807-808, 789 A.2d 1075, cert. denied, 260 Conn. 915, 797 A.2d 514 (2002).
(Citations omitted; internal quotation marks omitted.) State v. Denson, supra, 67 Conn.App. at 808-809, 789 A.2d 1075.
Turning to the first prong of the Blockburger test, the charged offenses in counts five through eight arose out of the same act or transaction. In those four counts of the substitute information, the state alleged that the crimes were committed at the same time and place: "2:00 in the afternoon of December 2, 2000, on or about 191 Cooke Street in the City of Waterbury, CT...." With respect to the charges of interfering with an officer, the act of interfering arose directly out of the assault charges alleged in counts five and six. The first prong of the Blockburger test is, therefore, satisfied.
Turning to the second prong of the Blockburger test, (Citations omitted; internal quotation marks omitted.) 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). We have previously determined that "a person could not commit the greater offense of assault on a peace officer without having committed the lesser offense of interfering with a peace officer."10 Id., at 19, 539 A.2d 1005. In other words, "[i]t is theoretically impossible to have a situation where one, with intent to prevent the performance of duties of a peace officer ... causes physical injury to an officer ... without at the same time obstructing, hindering, resisting or endangering that officer in the performance of his duties." Id. Because the defendant was convicted of the charges alleged in counts six and eight, for acts solely against Ezzo, we conclude that the second prong of the Blockburger test also...
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