State v. Porter

• Decision Date: 02 August 2016
• Docket Number: No. 35949.,35949.
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenneth PORTER.

167 Conn.App. 281

142 A.3d 1216

STATE of Connecticut

v.Kenneth PORTER.

No. 35949.

Appellate Court of Connecticut.

Argued Jan. 4, 2016.

Decided Aug. 2, 2016.

Mark Rademacher, assistant public defender, with whom, on the brief, was Janice Wolf, senior assistant public defender, for the appellant (defendant).

Jonathan M. Sousa, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Marc Ramia, senior assistant state's attorney, for the appellee (state).

BEACH, SHELDON and HARPER, Js.

BEACH

, J.

The defendant, Kenneth Porter, appeals from the judgment of conviction, rendered after a jury trial, of assault of public safety personnel in violation of General Statutes § 53a–167c (a)(1)

and interfering with an officer in violation of General Statutes § 53a–167a

.¹ The defendant claims that (1) his conviction of both assault of an officer and interfering with an officer violated the protection of the federal constitution against double jeopardy, and (2) the court erred in denying his request to instruct the jury that interfering with an officer is a lesser included offense of assault of an officer. We disagree.

The jury reasonably could have found the following facts. On May 24, 2010, Brian Donnelly, a patrol officer with the Yale Police Department, heard a police broadcast regarding a domestic dispute involving the defendant. Donnelly responded by proceeding to Winchester Avenue, where he spotted a vehicle matching the broadcast description of the defendant's vehicle. Donnelly followed the vehicle, which in fact belonged to the defendant. After Officer Lester Blazejowski arrived in support, Donnelly stopped in front of the defendant's vehicle at the intersection of Ashmun and Grove Streets. Donnelly and Blazejowski exited their cruisers, approached the defendant's vehicle, and ordered the defendant to put his vehicle in park and to show his hands. The defendant refused to comply and, instead, reached toward the passenger side of the vehicle and then inside his pants. Donnelly thought the defendant was attempting to retrieve a weapon. He ordered the defendant to show his hands, but, instead, the defendant again reached over to the passenger side of the vehicle and then inside his pants.

Blazejowski opened the driver's side door and attempted to remove the defendant from his vehicle, but he resisted. Donnelly also tried to remove the defendant from his vehicle, but the defendant resisted and continued to reach for the waistband of his pants and elsewhere in the vehicle. Donnelly finally was able to remove the defendant from the vehicle. While the officers were trying to handcuff the defendant, the defendant tried to kick Donnelly and attempted to stab him with a screwdriver. A struggle ensued during which the officers attempted to handcuff the defendant, who swung his hands, kicked his feet, and fought “wildly.” Donnelly² incurred scrapes and cuts that resulted in pain and “swelling.” At some point during the struggle, the defendant removed a bag of marijuana from his pants and put it in his mouth. After having been subdued with pepper spray, the defendant spit out the marijuana. Eventually, the defendant was handcuffed and formally arrested.

Following a trial to a jury, the defendant was convicted of two counts of assault of public safety personnel, possession of a narcotic substance, possession of a controlled substance, and interfering with an officer. The defendant was sentenced on each of the assault convictions to ten years incarceration, execution suspended after seven years; the sentences were to run consecutively. The defendant's one year sentence on count seven, interfering with an officer, and five year sentence on count five, possession of a narcotic substance, were ordered to run concurrently with each other and with the assault sentences. The defendant's total effective sentence was, thus, twenty years incarceration, execution suspended after fourteen years and five years of probation. This appeal followed.

I

The defendant claims that his conviction of assault of Donnelly (count one) and interfering with Donnelly count seven) violated the protection of the federal constitution against double jeopardy because, as charged by the state in the long form information, interfering with an officer is a lesser included offense of assault of an officer. We agree that the Blockburger³ test is satisfied as to the elements of the crimes, but disagree with the conclusion that reversal is required in the circumstances of this case.

The defendant concedes that his double jeopardy claim is unpreserved,⁴ and thus he seeks review of that claim pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989)

.⁵ We review the claim because the record is adequate for review and the claim of a double jeopardy violation is of constitutional magnitude. See State v. Laws, 37 Conn.App. 276, 289, 655 A.2d 1131

, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995) ; see also State v. Barber, 64 Conn.App. 659, 671, 781 A.2d 464 (“[i]f double jeopardy claims arising in the context of a single trial are raised for the first time on appeal, these claims are reviewable” [internal quotation marks omitted] ), cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001).

“A defendant's double jeopardy claim presents a question of law, over which our review is plenary.... 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.... This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial.... 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.... 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.... 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, 76 L.Ed. 306 (1932)

].... Significantly, [t]he Blockburger rule is not controlling when the legislative intent [permitting a defendant to be prosecuted under both statutes] is clear from the face of the statute or the legislative history.” (Citations omitted; internal quotation marks omitted.) State v. Bernacki, 307 Conn. 1, 9–10, 52 A.3d 605 (2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013). “The defendant on appeal bears the burden of proving that the prosecutions are for the same offense in law and fact.” (Internal quotation marks omitted.) State v. Scott, 270 Conn. 92, 98, 851 A.2d 291 (2004), cert. denied, 544 U.S. 987, 125 S.Ct. 1861, 161 L.Ed.2d 746 (2005).

In the present case, of course, the context is that two counts of the operative information raise significant double jeopardy concerns. The first count alleged, in pertinent part, that “on May 24, 2010, at or around 7:23 p.m., at or near Ashmun Street, in ... New Haven, ... the defendant ... with the intent to prevent a reasonably identifiable peace officer from performing his duties, to wit: Officer Brian Donnelly, and while such peace officer was acting in the performance of his duties such person caused physical injury to such peace officer in violation of [§ 53a–167c (a)(1)

].” Count seven alleged, in pertinent part, that “on May 24, 2010, at or around 7:23 p.m., at or near Ashmun Street, in ... New Haven, ... the defendant ... obstructed, resisted, hindered and endangered a peace officer, to wit: Officer Brian Donnelly, while in the performance of such peace officer's duties in violation of [§ 53a–167a ].” No bill of particulars was filed, and the issue was not raised or preserved in the trial court.

The state concedes that, solely on the allegations of the information, the seventh count may be considered to be included within count one and, if viewed under the Blockburger analysis and under the assumption that both convictions were based on the same conduct,⁶ convictions on both counts violate the constitutional protection against double jeopardy. The information alleges that the two crimes occurred at the same time and place, and involve the same officer. Thus, if we decide the matter on the basis of the charging document alone, one conviction must be vacated.

There are two distinct approaches followed in our appellate cases where it is not apparent from the charging document that different conduct forms the factual basis for each count. One line, which the defendant advocates that we follow, states that we are simply to apply the Blockburger analysis to the crimes charged and not to examine the underlying evidence. As stated in State v. Mincewicz, 64 Conn.App. 687, 691, 781 A.2d 455

, cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001) : “It repeatedly has been held that to determine whether two charges arose from the same act or transaction, we look to the information, as amplified by the bill of particulars, if any. State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979) ;⁷ accord State v. Devino,

195 Conn. 70, 74, 485 A.2d 1302 (1985) ; State v. Williams, 59 Conn.App. 603,...