State v. Quint

• Decision Date: 15 August 2006
• Docket Number: No. 24389.,24389.
• Citation: 904 A.2d 216,97 Conn.App. 72
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Richard R. QUINT.

904 A.2d 216

97 Conn.App. 72

STATE of Connecticut v. Richard R. QUINT.

No. 24389.

Appellate Court of Connecticut.

Argued February 23, 2006.

Decided August 15, 2006.

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April E. Brodeur, special public defender, for the appellant (defendant).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were Mary M. Galvin, state's attorney, and L. Mark Hurley, supervisory assistant state's attorney, for the appellee (state).

SCHALLER, BISHOP and DUPONT, Js.

BISHOP, J.

The defendant, Richard R. Quint, appeals from the judgments of conviction, rendered after a jury trial, of three counts of criminal violation of a protective order, pursuant to General Statutes § 53a-223(a), and three counts of criminal trespass in the first degree, in violation of General Statutes § 53a-107(a)(2). On appeal, the defendant claims that (1) his convictions violated his constitutional protection against double jeopardy, and (2) he was denied his right to a fair trial as a result of prosecutorial misconduct during trial and closing arguments.¹ We disagree and affirm the judgments of the trial court.

The jury reasonably could have found the following facts. In February, 2002, the defendant began dating and living with the victim, Francine Casey, in Milford. On July 9, 2002, following a domestic dispute, the defendant called the Milford police to the couple's residence, and both the defendant and the victim were arrested. After the arrest, the victim requested that a full no contact protective order be issued against the defendant. The court granted the request, and a full no contact protective order was issued,² which provided in relevant part: "That the defendant refrain from threatening [the victim]. . . entering her dwelling or the dwelling occupied by the victim. That he may return one time with a police escort to retrieve his personal belongings. That he refrain from having any contact in any manner with the victim. That he refrain from coming within one hundred yards from the victim. . . ."

At approximately 9:55 p.m. on July 22, 2002, Officer Andrew Dunaj of the Milford police department was dispatched to the residence of the victim after the Milford police received a call from the victim's brother alleging that the defendant had violated the protective order. When Dunaj arrived, the victim informed him that the defendant had violated the protective order two times that day. The victim reported that at approximately 3 a.m., the defendant entered her residence intoxicated, instigated a verbal exchange, stole her purse and threatened her with bodily injury if she contacted the police. She stated that she did not report the violation of the protective order because she feared the defendant would retaliate against her. She also stated that at approximately 6:44 p.m., on the same day, the defendant attempted to enter the residence through a window, which was blocked by an air conditioner. The victim told Dunaj that the defendant had returned to the residence to give her back her purse but left once he heard the police were en route to the residence. She told Dunaj that although she did not want the defendant arrested, she did want to create a record of his violations of the protective order "in case anything happened."

On July 27, 2002, Dunaj contacted the defendant to inquire about the incident on July 22. According to Dunaj, the defendant admitted that he had entered the victim's residence early in the morning on July 22, but he insisted that he was invited to the residence by the victim. The defendant, however, denied threatening the victim or returning to the residence later that day. Dunaj recalled reminding the defendant of the conditions of the protective order and informing him that when he entered the residence of the victim on July 22, he violated the protective order.

Then, on August 20, 2002, Dunaj again was dispatched to the residence of the victim. When Dunaj arrived, the victim informed him that, on that day, the defendant had returned to her residence without a police escort, this time seeking to retrieve his personal belongings. She stated that the defendant did not enter the residence, but rather was in her driveway and attempted to enter the dwelling through a window. The victim's brother, who was at the residence during the relevant time period, opined that the defendant tried to enter the dwelling through a window. The victim also claimed that the defendant had instigated a verbal argument with her and left only when she informed him that she had called the police.

Later that day, Dunaj located and arrested the defendant. The defendant was charged with one count of threatening in the second degree in violation of General Statutes § 53a-62(a)(1) in connection with the incident that occurred at 3 a.m. on July 22, 2002, as well as three counts of criminal trespass in the first degree and three counts of criminal violation of a protective order for the incidents that occurred on July 22 and August 20, 2002. Following a jury trial, the defendant was acquitted of the threatening charge but convicted of three counts of criminal trespass in the first degree and three counts of criminal violation of a protective order. Additional facts will be set forth where necessary.

I

First, the defendant claims that his prosecution and convictions under both § 53a-223(a) and § 53a-107(a)(2)³ violated his constitutional protection against double jeopardy under the fifth amendment to the United States constitution and article first, § 9, of the constitution of Connecticut. We disagree.

The defendant concedes that he failed to preserve his claim that his convictions violated the principles of double jeopardy and seeks to prevail under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We will review the defendant's claim because the record is adequate for our review, and the claim is of a constitutional nature. The defendant cannot prevail, however, because the alleged constitutional violation clearly did not exist, and he clearly was not deprived of a fair trial. See id.

"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. . . . This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial." (Citations omitted.) State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990). One may, however, when the legislature authorizes, be convicted of multiple offenses even though the offenses arise from the same conduct. Missouri v. Hunter, 459 U.S. 359, 367-68, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).

Here, the defendant claims that he was punished multiple times for the same offense. That is to say, he alleges that his prosecutions and convictions under § 53a-223(a) for the crime of violating a protective order and under § 53a-107(a)(2) for the crime of criminal trespass in the first degree constituted double jeopardy because the statutes criminalize the same conduct. "In this context, double jeopardy protection is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." (Internal quotation marks omitted.) State v. Smart, 37 Conn.App. 360, 365, 656 A.2d 677, cert. denied, 233 Conn. 914, 659 A.2d 187 (1995).

"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. Greco, supra, 216 Conn. at 290-91, 579 A.2d 84. While the first prong requires a review of the bill of particulars, the second prong requires the application of the test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), "to determine whether two statutes criminalize the same offense, thus placing a defendant prosecuted under both statutes in double jeopardy [and] 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. . . . This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial." (Internal quotation marks omitted.) State v. Lopez, 93 Conn.App. 257, 272, 889 A.2d 254, cert. granted on other grounds, 277 Conn. 919, 895 A.2d 791 (2006).

As the Blockburger test is only a rule of statutory construction and "serves as a means of discerning [legislative] purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." (Internal quotation marks omitted.) Id.; State v. Greco, supra, 216 Conn. at 292, 579 A.2d 84.

Thus, the Blockburger test, as a rule of statutory construction, simply creates a rebuttable "presumption as to the actual legislative intent, [and] it is not a blind presumption that may be applied without regard to other relevant evidence of true intent. It would be absurd indeed to apply Blockburger, which was meant to help determine legislative intent, in a way that actually defeats what reason and logic dictate to be the intent." (Internal quotation marks omitted.) State v. Delgado, 19 Conn.App. 245, 252, 562 A.2d 539 (1989). The United States Supreme Court and our Supreme Court have made clear that the Blockburger "rule should not be controlling where, for example, there is a clear indication of contrary legislative intent [and][t]he language, structure and...