State v. Wright

• Decision Date: 01 December 2015
• Docket Number: No. 19189.,19189.
• Citation: 319 Conn. 684,127 A.3d 147
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Brian WRIGHT.

319 Conn. 684

127 A.3d 147

STATE of Connecticut

v.Brian WRIGHT.

No. 19189.

Supreme Court of Connecticut.

Argued Sept. 14, 2015.

Decided Dec. 1, 2015.

Glenn W. Falk, Madison, assigned counsel, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Gail Hardy, state's attorney, and Anne Mahoney, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

ESPINOSA, J.

The defendant, Brian Wright, appeals from the judgment of conviction, rendered following a jury trial, of two counts of aggravated sexual assault of a minor in violation of General Statutes § 53a–70c (a)(1) and (6),¹ and one count each of risk of injury to a child in violation of General Statutes § 53–21(a)(2), attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a–49 and 53a–70 (a)(2), and unlawful restraint in the first degree in violation of General Statutes § 53a–95. The defendant seeks review pursuant to State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), of his claim that his convictions and sentences for two counts of aggravated sexual assault of a minor in violation of § 53a–70c (a)(1) and (6) violate the prohibition against double jeopardy because they constitute multiple punishments for the same offense. The defendant contends that, notwithstanding the fact that subdivisions (1) and (6) of § 53a–70c (a) each require proof of a fact that the other does not, the two subdivisions do not delineate separately punishable offenses, but alternative methods by which the state may seek an enhanced sentence for the commission of the predicate offenses listed in § 53a–70c (a). The state responds that because the two subdivisions are separately punishable offenses pursuant to the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), there is a rebuttable presumption that multiple punishments pursuant to § 53a–70c (a)(1) and (6) do not run afoul of the double jeopardy clause. Because there is no clear contrary legislative intent either on the face of the statute or in its legislative history, the state contends, the defendant has failed to rebut that presumption and there is no double jeopardy violation. We agree with the state and affirm the judgment of conviction.

The jury reasonably could have found the following relevant facts. On July 20, 2010, the victim, S, who was ten years old at the time, was walking from his home to the swimming pool at Pope Park in Hartford, where he had been attending daily swim team practice that summer. While S was on his way across the park to go to the pool, he encountered the defendant, who stopped him and asked him if he wanted to make some money. When S responded "yes," the defendant told S to come with him. The two walked up a hill, into a wooded area of the park, where they were alone. The defendant asked S if he was nervous and S responded, "yeah." S then asked the defendant what type of job the defendant had for him. "It's a surprise," responded the defendant. The defendant then asked S for a hug, upon which S took one step closer to the defendant, who immediately enveloped S in a "bear hug" and simultaneously squeezed his buttocks. S became afraid and pushed the defendant away, spun around so that his back was to the defendant and started to run. When the defendant tried to stop S by grabbing his backpack, S let go of the pack, then kicked the defendant and continued running. The defendant tried to trip him by kicking the side of his leg, but S escaped, running out of the park and across the street to where he saw a man standing on the sidewalk in front of a retail store. When S told him what had happened, the man allowed S to use his cell phone to call the police.

The defendant was subsequently arrested and, following a jury trial, was convicted of both counts of aggravated sexual assault of a minor in violation of § 53a–70c (a)(1) and (6), and one count each of risk of injury to a child in violation of § 53–21(a)(2), attempt to commit sexual assault in the first degree in violation of §§ 53a–49 and 53a–70 (a)(2), and unlawful restraint in the first degree in violation of § 53a–95. The court subsequently sentenced the defendant to a total effective sentence of 120 years of incarceration, fifty-five years of which are mandatory. Specifically, as to count two for aggravated sexual assault in the first degree in violation of § 53a–70c (a)(6), the defendant was sentenced to fifty years of incarceration, twenty-five years of which are mandatory.² This appeal followed.

The parties agree that pursuant to the test set forth in Blockburger v. United States, supra, 284 U.S. at 304, 52 S.Ct. 180 subdivisions (1) and (6) of § 53a–70c (a) set forth two separately punishable offenses. Therefore, the sole issue in the present case is whether there is clear evidence of a contrary legislative intent that rebuts the presumption under Blockburger that the two subdivisions set forth separately punishable offenses for purposes of the double jeopardy clause. The defendant argues that the statutory language and legislative history of § 53a–70c rebut the presumption, by providing clear evidence that the legislature intended in § 53a–70c (a) merely to set forth aggravating factors that increased the applicable mandatory minimum sentence for violating one of the predicate offenses listed in the statute. The state responds that neither the statutory language nor its legislative history provide the clear evidence of legislative intent that is necessary to rebut the Blockburger presumption. We agree with the state.

Because the defendant concedes that he did not raise this claim at trial, we review his claim pursuant to State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823. Under Golding, a defendant may prevail on an unpreserved claim only if 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 ... exists and ... 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." (Footnote omitted.)

State v. Gold ing, supra, 213 Conn. at 239–40, 567 A.2d 823 ; see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding ). Because the record is adequate for our review, and the defendant's claim that the multiple convictions violated his right against being placed in double jeopardy is of constitutional magnitude, our inquiry focuses on whether the violation alleged by the defendant exists and deprived him of a fair trial.

A defendant's double jeopardy challenge presents a question of law over which we have plenary review. State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 1804, 185 L.Ed.2d 811 (2013). "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; internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 7, 629 A.2d 386 (1993).

"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, [supra, 284 U.S. at 304, 52 S.Ct. 180 ]. 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. Bernacki, supra, 307 Conn. at 9–10, 52 A.3d 605.

"Our analysis of [the defendant's] double jeopardy [claim] does not end, however, with a comparison of the offenses. The Blockburger test is a rule of statutory construction, and because it 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.... Thus, the Blockburger test creates only a rebuttable presumption of legislative intent, [and] the test is not controlling when a contrary intent is manifest. State v. Hill, 237 Conn. 81, 101, 675 A.2d 866 (1996). When the conclusion reached under Blockburger is that the two crimes do not constitute the same offense, the burden remains on the defendant to demonstrate a clear legislative intent to the contrary. See State v. Miranda, 260 Conn. 93, 127, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002) ; State v. Snook, [210 Conn. 244, 264, 555 A.2d 390, cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989) ] ... State v. Gonzales, 123 N.M. 337, 342, 940 P.2d 185 (App.1997) (burden does not shift away from defendant once it is determined that defendant's claim fails Blockburger test)." (Citations omitted; footnote...