December 19, 2017
information charging the defendant with three counts of the
crime of assault of public safety personnel, and one count
each of the crimes of carrying a dangerous weapon, possession
of a narcotic substance, possession of a controlled
substance, interfering with an officer, and failure to appear
in the first degree, brought to the Superior Court in the
judicial district of New Haven and tried to the jury before
Mullins, J.; verdict of guilty of two counts of
assault of public safety personnel, and one count each of
possession of a narcotic substance, possession of a
controlled substance and interfering with an officer;
thereafter, the court dismissed the charge of possession of a
controlled substance and rendered judgment of guilty of two
counts of assault of public safety personnel, and one count
each of possession of a narcotic substance and interfering
with an officer, from which the defendant appealed to the
Appellate Court, Beach, Sheldon and
Harper, Js., which affirmed the trial
court's judgment, and the defendant, on the granting of
certification, appealed to this court. Affirmed.
Rademacher, assistant public defender, for the appellant
Jennifer F. Miller, deputy assistant state's attorney,
with whom, on the brief, were Patrick J. Griffin, state's
attorney, and Marc G. Ramia, senior assistant state's
attorney, for the appellee (state).
Palmer, McDonald, Robinson, D'Auria and Kahn, Js.
sole question presented in this appeal is whether a court may
look to the evidence presented at trial when determining if a
defendant's conviction violated the constitutional
prohibition against double jeopardy. The defendant, Kenneth
Porter, appeals from the judgment of the Appellate Court
affirming his judgment of conviction, following 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. State v. Porter, 167 Conn.App.
281, 283-84, 142 A.3d 1216 (2016). The defendant claims that
the Appellate Court could review only the charging documents
when determining whether his conviction of both charges
violated the prohibition on double jeopardy and that it
improperly looked to the evidence presented at trial to make
that determination. The state counters that State v.
Schovanec, 326 Conn. 310, 163 A.3d 581 (2017), permits
the review of evidence in double jeopardy analysis for the
limited purpose of deciding whether the offenses stem from
the same act or transaction, and that it was proper for the
Appellate Court to consider evidence in that analysis. We
agree with the state that the Appellate Court properly
considered the evidence presented at trial and, accordingly,
affirm its judgment.
Appellate Court set forth 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 [in New Haven], 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.
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.' Donnelly
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.''
(Footnote omitted.) State v. Porter, supra, 167
to this appeal, the amended information charged the defendant
in the first count with assault of public safety personnel,
and provided that ‘‘the defendant . . . with the
intent to prevent [Donnelly] from performing his duties . . .
and while [Donnelly] was acting in the performance of his
duties . . . caused physical injury to [Donnelly] in
violation of [§ 53a-167c (a) (1)] . . . .'' It
charged the defendant in the seventh count with interfering
with an officer in violation of § 53a-167a, and provided
that ‘‘the defendant . . . obstructed, resisted,
hindered and endangered [Donnelly], while in the performance
of [his] duties . . . .'' The information alleged
that both offenses occurred ‘‘on May 24, 2010, at
or around 7:23 p.m., at or near Ashmun Street, in the city of
New Haven . . . .'' ‘‘No bill of
particulars was filed . . . .'' State v.
Porter, supra, 167 Conn.App. 288.
Appellate Court additionally set forth the following relevant
procedural history. ‘‘Following a trial to a
jury, the defendant was convicted of two counts of assault of
public safety personnel, [one count of] possession of a
narcotic substance . . . and [one count of] 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.''
State v. Porter, supra, 167 Conn.App. 285.
appeal to the Appellate Court, the defendant claimed a double
jeopardy violation for his conviction of both assault of
public safety personnel and interfering with an officer. To
resolve his claim, that court surveyed Connecticut's
double jeopardy jurisprudence to determine if it was
permitted to review evidence presented at trial because
‘‘[t]he information allege[d] that the two crimes
occurred at the same time and place'' and, if
confined to ‘‘the charging document alone, one
conviction must [therefore] be vacated.''
Id., 289. Although the Appellate Court noted that
several of its cases had interpreted State v.
Goldson, 178 Conn. 422, 423 A.2d 114 (1979), to
completely bar evidentiary review during double jeopardy
analysis, it concluded that subsequent cases implicitly
overruled Goldson, and, as a result, it was
obligated to review the evidence in addition to the charging
documents. State v. Porter, supra, 167 Conn.App.
289, 292. On the basis of the evidence presented at trial,
the Appellate Court held that the jury could have concluded
‘‘that the two crimes did not stem from the same
conduct.'' Id., 293. As a result, the
defendant did not satisfy one of the requirements to
establish a double jeopardy violation in the context of a
single trial. Id. The Appellate Court therefore
affirmed the judgment of conviction. Id., 297. This
certified appeal followed.
issue in this appeal is whether the Appellate Court properly
reviewed the evidence presented at trial when determining
that the defendant's conviction did not violate double
jeopardy. The defendant maintains that
Goldson proscribes consideration of the evidence in
double jeopardy analysis, but the state contends that this
court's decision in Schovanec permits a court to
look beyond the charging documents when determining if the
offenses stem from the same act or transaction. Thus, both
parties offer precedent in a manner that appears to be in
conflict, and the state goes so far as to suggest that we
should overrule Goldson in light of
Schovanec if necessary. We conclude that
Goldson and Schovanec are consistent
because both cases prohibit the review of evidence only with
regard to the second step of a two step process for
evaluating whether there has been a violation of the
prohibition on double jeopardy.
begin by setting forth the standard of review.
‘‘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.'' (Citation omitted; internal quotation marks
omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d
605 (2012), cert. denied, 569 U.S. 918, 133 S.Ct. 1804, 185
L.Ed.2d 811 (2013).
jeopardy analysis in the context of a single trial is a [two
step] process, '' and, to succeed, the defendant must
satisfy both steps. (Internal quotation marks omitted.)
Id. ‘‘First, the charges must arise out
of the same act or transaction [step one]. Second, it must be
determined whether the charged crimes are the same offense
[step two]. Multiple punishments are forbidden only if both
conditions are met.'' (Internal quotation marks
omitted.) Id. At step two, we
‘‘[t]raditionally . . . 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 ...