State v. Woodson, 14448

• Decision Date: 03 August 1993
• Docket Number: No. 14448,14448
• Citation: 227 Conn. 1,629 A.2d 386
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Roger WOODSON.

Page 386

629 A.2d 386

227 Conn. 1

STATE of Connecticut v. Roger WOODSON.

No. 14448.

Supreme Court of Connecticut.

Argued March 26, 1993.

Decided Aug. 3, 1993.

Susan M. Hankins, Asst. Public Defender, with whom, on the brief, was G. Douglas Nash, Public Defender, for appellee (defendant).

Rita M. Shair, Asst. State's Atty., with whom were Michael Dearington, State's Atty. and Elpedio Vitale, Asst. State's Atty., for appellee (state).

Before PETERS, C.J., and CALLAHAN, BORDEN, BERDON and NORCOTT, JJ.

CALLAHAN, Associate Justice.

This appeal concerns several issues arising out of the criminal trial of the defendant, Roger Woodson. The state charged the defendant with two counts of arson in the first degree in violation of General Statutes § 53a-111(a)(3) and (4), respectively, ¹ one count of conspiracy to commit arson in the first degree in violation of General Statutes §§ 53-111 and 53a-48, ² and one count of insurance fraud in violation of General Statutes § 53a-215(a)(2). ³ A jury returned a verdict of guilty of both counts of arson in the first degree and one count of insurance fraud and the court rendered judgment accordingly. Following the defendant's convictions, the court sentenced him to an effective term of imprisonment of twenty-five years. ⁴ He appeals to this court pursuant to General Statutes § 51-199(b)(3). ⁵ We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. The charges arose out of an incendiary fire that caused extensive damage to a residence located on 132 Lamberton Street in New Haven. The defendant was in the business of buying, renovating and reselling real estate. He claimed to own several properties with his mother, Lula Woodson. One of those properties was located at 132 Lamberton Street. The Lamberton Street property had been financed with two outstanding mortgages that the defendant had difficulty paying because of financial losses he had suffered in the stock market. The defendant failed to make mortgage payments from May through September, 1989, to one of the mortgagees, New Haven Savings Bank, which then had initiated foreclosure proceedings in October, 1989, to recoup an outstanding debt of $59,088. The defendant feared that he would lose 132 Lamberton Street by foreclosure.

The defendant attempted to sell 132 Lamberton Street by listing it, together with other properties, with Howard Greenberg, a real estate agent, for a price of $79,000. On September 17, 1989, a buyer signed a purchase and sale agreement for 132 Lamberton Street for a purchase price of $69,000 and a closing date was set for October 30, 1989. ⁶ The prospective buyer, however, had been unable to obtain the necessary financing to purchase the property by the date of the original closing. The defendant granted the prospective buyer a two week extension beyond the original closing date to obtain the necessary financing but other problems had still plagued the sale.

On October 18, 1989, the defendant obtained a fire insurance policy in the amount of $120,000 in his mother's name on 132 Lamberton Street with the Dorchester Mutual Insurance Company. In early November, the defendant contacted Grace Hudson, an employee of Allstate Insurance Company, to inquire about insurance for the same property. On November 9, 1989, the defendant visited Hudson at her office, and placed a binder on a fire insurance policy for 132 Lamberton Street in the amount of $125,000. The defendant signed his mother's name to the binder. After the fire, the defendant submitted proofs of loss, signed by his mother, to both the Dorchester and Allstate Insurance companies.

The fire, in connection with which the defendant was charged, occurred during the early morning hours of November 10, 1989. At 5:33 a.m., members of the New Haven fire department were notified that a fire had broken out at a residence located at 132 Lamberton Street. Upon arriving at the scene, the firefighters found the residence enveloped in thick, black smoke. Fire Lieutenant John King testified that when he had searched the house for victims, he had noticed a can of gasoline and "pour patterns" running across the carpet. After the fire had abated significantly, King removed his oxygen mask and detected the odor of a petroleum product. King also observed that the fire had three separate unconnected "points of origin" rather than the usual one point, which is characteristic of accidental fires. Edward Joss, a member of the arson squad, investigated the fire immediately after it had been suppressed and noted pour patterns on the carpet and evidence that someone had spread some type of fuel on a wall in the living room. Jack Hubball, a forensic expert, inspected the container found at the scene of the fire and confirmed the fact that it had contained a petroleum liquid. Because an accelerant was present in the house, King concluded that the firefighters faced a significantly increased risk of injury at the scene.

On appeal, the defendant claims that the trial court improperly: (1) deprived the defendant of his constitutional right against double jeopardy by allowing his conviction of two counts of arson in the first degree in violation of General Statutes § 53a-111(a)(3) and (4), respectively, for the same incident; (2) admitted evidence of threats made by the defendant to burn other of his properties not the subject of the present charges; (3) admitted the tape-recorded statement of a state's witness; and (4) denied the defendant's constitutional right to a fair trial by rebuking the defendant for being nonresponsive during the state's cross-examination.

I

The defendant first claims that he was deprived of his right against double jeopardy, as guaranteed by the fifth and fourteenth amendments to the United States constitution, because he was convicted of arson for violations of § 53a-111(a)(3) and (4), respectively, for the same alleged acts. The defendant argues that the two statutory provisions of which he was convicted are not separate crimes but rather alternative methods for committing the single crime of arson in the first degree. The defendant maintains that, although he did not articulate a constitutional claim concerning this issue at trial, his claim is entitled to appellate review.

A defendant can prevail on an unpreserved claim only if "all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt." (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that the defendant has not satisfied the third prong of Golding and therefore cannot prevail on his double jeopardy claim.

"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. Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, [2062], 23 L.Ed.2d 707 (1969); State v. Lonergan, 213 Conn. 74, 78, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S.Ct. 2586, 110 L.Ed.2d 267 (1990). This constitutional guarantee prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, [2225], 53 L.Ed.2d 187 (1977); State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); State v. John, 210 Conn. 652, 693, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989)." State v. Greco, 216 Conn. 282, 289-90, 579 A.2d 84 (1990).

The defendant's claim that he was improperly convicted of two counts of arson in the first degree under § 53a-111(a)(3) and (4), involves that aspect of double jeopardy analysis that protects against imposing multiple punishments for the same offense in a single trial. "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.) Id., at 290-91, 579 A.2d 84. There is no dispute in this case that the two arson counts with which the defendant was charged concern the same transaction. The charging documents reveal that both violations arose out of an incendiary fire at 132 Lamberton Street at approximately 5:34 a.m. on November 10, 1989. Both counts of the information charging the defendant with arson in the first degree, moreover, allege the same conduct by the defendant and the same intent to destroy or damage a building. ⁷ Thus, the question presented is whether arson in the first degree in violation of § 53a-111(a)(3) and arson in the first degree in violation of § 53a-111(a)(4) are the same offense for the purposes of the double jeopardy clause.

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. Id., at 304, 52 S.Ct. at 182; State v. John, supra, 210 Conn. at 695, 557 A.2d 93. In conducting this inquiry, we look only to the relevant sta...