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State v. Porter

Supreme Court of Connecticut

May 1, 2018

STATE OF CONNECTICUT
v.
KENNETH PORTER

          Argued December 19, 2017

         Procedural History

         Substitute 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.

          Mark Rademacher, assistant public defender, for the appellant (defendant).

          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. [*]

          OPINION

          KAHN, J.

         The 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[1] 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.[2] 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.

         The 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.

         ‘‘Blazejowski 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 Conn.App. 284-85.

         Relevant 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.

         The 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.

         In his 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.

         The 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.[3] 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.

         We 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).

         ‘‘Double 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[4] 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 ...


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