State v. Tweedy

• Decision Date: 16 July 1991
• Docket Number: No. 14103,14103
• Citation: 219 Conn. 489,594 A.2d 906
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Larry TWEEDY.

Page 906

594 A.2d 906

219 Conn. 489

STATE of Connecticut v. Larry TWEEDY.

No. 14103.

Supreme Court of Connecticut.

Argued March 26, 1991.

Decided July 16, 1991.

Temmy Ann Pieszak, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellant (defendant).

Rita M. Shair, Asst. State's Atty., with whom were James G. Clark, Asst. State's Atty., and, on the brief, Michael Dearington, State's Atty., and Kathryn St. Amand, Law Student Intern, for appellee (State).

Before SHEA, CALLAHAN, GLASS, COVELLO and BORDEN, JJ.

GLASS, Associate Justice.

After a jury trial, the defendant, Larry Tweedy, was convicted of two counts of robbery in the first degree in violation of General Statutes § 53a-134(a)(4), ¹ one count of kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(A), ² one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a)(2)(B), ³ one count of burglary in the third degree in violation of General Statutes § 53a-103, ⁴ and one count of sexual assault in the first degree in violation of General Statutes § 53a-70. ⁵ The trial court sentenced the defendant to a total effective term of thirty-four years imprisonment, and this appeal followed.

On appeal, the defendant claims that: (1) the court improperly punished him twice for the same offense of first degree kidnapping in violation of the double jeopardy provisions of the federal constitution; (2) the court improperly punished him twice for the same offense of first degree robbery in violation of the double jeopardy provisions of the federal constitution; (3) the evidence of abduction within the meaning of General Statutes § 53a-91 ⁶ was insufficient to sustain the jury's verdict finding him guilty of the crime of first degree kidnapping in violation of § 53a-92(a)(2)(A); (4) § 53a-92(a)(2)(A) is unconstitutionally vague as applied to the facts supporting the defendant's conviction of first degree kidnapping; (5) the court deprived the defendant of a fair trial by shackling him at trial; (6) the prosecutor's pervasive misconduct impaired the defendant's constitutional rights; and (7) the court improperly failed to deliver certain instructions to the jury. We affirm the judgment of conviction on all counts.

The jury could reasonably have found the following facts. At approximately 8:00 a.m. on October 2, 1988, the victim, after purchasing a Sunday newspaper, returned to her apartment in New Haven. As the victim unlocked the outside door to the apartment building, the defendant came up behind her and asked if someone named Mike lived in the building. The victim replied that she did not know and entered the building. Realizing that the defendant had followed her into the building, the victim stepped aside and asked him to pass ahead in the hallway. The defendant refused to pass and ordered the victim to enter her apartment. When the victim threatened to scream, the defendant warned her that she should not because he had a gun. The victim then attempted to enter her apartment and lock the door, but the defendant wedged an arm and leg inside the door and forced his way into the apartment.

Once inside, the defendant stood close to the victim in the entryway of the apartment and demanded money. The victim gave him the bills and coins that were in her pocket, and, after the defendant threw the coins on the floor, she told him that she had more money in a desk in her bedroom. While the defendant followed close behind her, the victim walked through the living room, down the hallway and into the bedroom, where she gave the defendant the money located in her desk. The defendant then demanded valuables and took a camera from the victim. Upon the defendant's insistence for more money, the victim, in an attempt to get him out of her apartment, told him that she could obtain money from an automatic teller machine (ATM) at a nearby bank. The defendant did not respond, but began to search the victim's desk and closet for valuables.

At some point during the bedroom search, the defendant commanded the victim to undress and sit on her bed. The defendant thereafter ordered the victim to get up and show him where she kept her jewelry, and followed her as she crossed the room from the bed to her bureau. After taking a gold crucifix from the bureau drawer, the defendant roughly grabbed the victim's breasts and demanded that she return to the bed and lie down. The defendant then ceased his search for valuables and approached the victim where she lay on her bed. The defendant reminded the victim not to scream because he had a gun and proceeded to engage in nonconsensual sexual intercourse with her.

Afterward, the defendant ordered the victim to dress and told her that they were going to walk together to the bank where she would withdraw money from the ATM. Before they left the apartment, the defendant went into the bathroom and returned with his jacket wrapped around his hand. The defendant explained that his jacket concealed the gun, and told the victim that she should not scream or otherwise indicate that she was in danger during the walk to the bank because he had killed people before and was willing to kill her. The victim saw "something metallic" between the folds of the defendant's jacket.

The victim then walked several blocks to the bank with the defendant following directly behind her. At the bank, the defendant instructed the victim to withdraw approximately $800 from the ATM. The victim withdrew $200, the daily withdrawal limit. The defendant removed that amount of money from the ATM and put it in his pocket. Thereafter, the defendant directed the victim to walk down an alley without looking back, and he left the area. The victim testified at the defendant's subsequent trial that she had complied with his various demands in order to survive.

I

The defendant initially claims that the trial court, by convicting him of two counts of first degree kidnapping based on charges alleging his commission of offenses that arose out of the same transaction, punished him twice for the same offense in violation of the double jeopardy provisions of the federal constitution. ⁷ In support of this claim, the defendant points out that his convictions for the offenses of first degree kidnapping under both subdivisions (A) and (B) of § 53a-92(a)(2), respectively based on the third and fifth counts of the state's substitute information, ⁸ arose from a thirty minute transaction within the same city and involving the same victim. The state contends that even if the offenses were assumed to have arisen from the same transaction, the defendant's double jeopardy claim nevertheless fails because the two kidnapping charges alleged violations of distinct statutory provisions, and therefore, the commission of separate offenses. Assuming that the offenses arose from the same transaction, we agree with the state.

As we approach the defendant's claim, the only disputed question is whether the crimes of kidnapping in the first degree under subdivisions (A) and (B) of § 53a-92(a)(2) are the same offense for purposes of double jeopardy. "The traditional test for determining whether two offenses are 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)." State v. Chicano, 216 Conn. 699, 706-707, 584 A.2d 425 (1990). 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." State v. Vass, 191 Conn. 604, 615, 469 A.2d 767 (1983); see State v. Greco, 216 Conn. 282, 291, 579 A.2d 84 (1990). We determine whether each crime contains an element not found in the other by examining only the relevant statute, the information and the bill of particulars, and not the evidence presented at trial. State v. Greco, supra.

Our perusal of these materials in the present case discloses that the charged crimes of kidnapping in the first degree under subdivisions (A) and (B) of § 53a-92(a)(2) are separate offenses for double jeopardy purposes. To convict the defendant of first degree kidnapping under subdivision (A) of the statute, the state had to prove, as alleged in the third count of the substitute information, that the defendant abducted the victim with a specific intent to violate or abuse her sexually. See State v. Palmer, 206 Conn. 40, 54, 536 A.2d 936 (1988). On the other hand, to convict the defendant of first degree kidnapping under subdivision (B) of § 53a-92(a)(2), the state was required to establish, as alleged in the fifth count of the substitute information, that he abducted the victim with the specific intent to achieve the felonious objective of robbery. See State v. Wright, 197 Conn. 588, 591, 500 A.2d 547 (1985). The substitute information, therefore, alleged that the defendant committed two separate offenses of kidnapping in the first degree, each of which required proof of an element that the other did not. As a consequence, the trial court could properly punish the defendant for both crimes without offending the double jeopardy clause.

II

The defendant next argues that his two convictions of first degree robbery under § 53a-134(a)(4) constituted multiple punishment for the same offense in violation of the double jeopardy clause of the federal constitution. ⁹ The convictions were based upon the first and sixth counts of the substitute information, in which the state respectively alleged that the defendant had robbed the victim "at approximately 8:30 a.m. on October 2, 1988, at [her apartment] in the City of New Haven," and then had robbed her again "at approximately 9:00 a.m. on October 2, 1988 at 77 Broadway [her bank] in New Haven...." According to the defendant, the events at the victim's apartment and the bank were part of a continuing transaction during which he committed a single...