Argued
May 22, 2018
Procedural
History
Substitute
information charging the defendant with two counts each of
the crimes of criminal violation of a standing criminal
protective order and threatening in the second degree,
brought to the Superior Court in the judicial district of New
Haven and tried to the jury before O'Keefe,
J.; verdict and judgment of guilty, from which the
defendant appealed to this court. Affirmed.
John
L. Cordani, Jr., assigned counsel, for the appellant
(defendant).
Bruce
R. Lockwood, senior assistant state's attorney, with
whom, on the brief, were Patrick J. Griffin, state's
attorney, and Laura Deleo, senior assistant state's
attorney, for the appellee (state).
Sheldon, Elgo and Flynn, Js.
OPINION
FLYNN,
J.
The
defendant, Cody Meadows, was convicted after a jury trial of
two counts of criminal violation of a standing criminal
protective order in violation of General Statutes §
53a-223a, one count of threatening in the second degree in
violation of General Statutes (Rev. to 2015) §
53a-62 (a) (2)[1] and one count of threatening in the second
degree in violation of § 53a-62 (a) (3). On appeal, the
defendant claims that (1) the two convictions for violation
of the standing criminal protective order violated his
protection against double jeopardy, (2) the trial court
erroneously instructed the jury as to the second count of
violation of a standing criminal protective order, and (3)
his conviction under § 53a-62 (a) (3) violated his right
to freedom of speech under the first amendment to the United
States constitution. We disagree and affirm the judgment of
the trial court.
The
jury reasonably could have found the following facts. On
September 1, 2015, the defendant, along with the victim,
[2] the
mother of his children, appeared before the juvenile court in
New Haven for a hearing relating to their children. At the
time, the defendant, pursuant to the terms of a standing
criminal protective order, was to have no
‘‘contact [with the victim] in any manner,
including by written, electronic or telephone
[communication]'' and was not to
‘‘assault, threaten, abuse, harass, follow,
interfere with, or stalk the [victim].'' As an
exception, the order provided that ‘‘contact with
[the victim was] only allowed for purposes of visitation as
directed by [the] family court.'' As the hearing
began, the defendant tried to ‘‘make small
talk'' with the victim, who ignored him. According to
the victim, the defendant tried to tell her that he loved her
and asked her why she had blocked her telephone, but she
continued to ignore him and to look toward the judge. At this
point, the defendant told the victim,
‘‘you're going to have problems when I get
home, bitch.'' The victim then looked at the
defendant who mouthed that he was going to
‘‘f---ing kill [her].'' The victim told
the defendant that she could hear him and that he should stop
threatening her. The defendant remarked that he was not
threatening; thereafter, he stopped trying to converse with
the victim. The victim considered the defendant's
statements to be real threats, and she was fearful after she
heard them.
At the
conclusion of the hearing, the defendant met, at the
courthouse, with a social worker, Shannon McGinnis. During
the meeting, the defendant appeared upset and told McGinnis
that ‘‘if he's not with [the victim],
he's going to make sure nobody else is with
her.'' The defendant then said that, ‘‘if
[the victim] chooses not to be with him, he will beat the
f---ing shit out of her'' and would
‘‘make her another Tracey
Morton.''[3] The defendant also said that
‘‘[h]e would kill himself or die suicide by cops
. . . .'' At this point, McGinnis informed the
defendant that his statements were concerning and that she
would have to tell others about them; the defendant then
stopped making such statements. Afterward, McGinnis met with
the victim and informed her that during their meeting the
defendant had threatened to hurt the victim. The victim
thereafter contacted the state police and, after meeting with
a state police officer, signed a statement that had been
prepared by the officer. At trial, the victim testified that
she believed the threats against her were real and that she
had feared the defendant even though he was in prison, where
he would remain for seven more months.
The
state subsequently charged the defendant in a four count
information with two counts of violation of a standing
criminal protective order and two counts of threatening in
the second degree. After a jury trial, the defendant was
convicted on all four counts. This appeal followed.
I
The
defendant first claims that his conviction for two counts of
violation of a standing criminal protective order violated
his right to be free from double jeopardy. He argues that
count one of the information, which alleged a violation of
the protective order by having contact with the victim, and
count two of the information, which alleged a violation of
the protective order by threatening and harassing the victim,
arose out of the same act. Specifically, the defendant argues
that his conversation with the victim inside the courtroom
was a ‘‘single, continuous, [and]
uninterrupted'' act, and that it, therefore, cannot
be dissected and penalized as two separate acts. Because the
court rendered a judgment of conviction on two counts of
violation of a standing criminal protective order resulting
from that single conversation, the defendant claims his right
against double jeopardy was violated.[4] In support of this argument,
the defendant relies on Rowe v. Superior
Court, 289 Conn. 649, 667-68, 960 A.2d 256 (2008), and
State v. Nixon, 92 Conn.App. 586, 590-91,
886 A.2d 475 (2005). Additionally, the defendant argues that
the language of § 53a-223a (c) exemplifies the
legislature's intent to make a violation of a standing
criminal protective order punishable only once. We disagree.
The
defendant did not preserve this claim at trial, nor has he
asked, on appeal, for review under State v.
Golding, 213 Conn. 233, 567 A.2d 823
(1989).[5] Nevertheless, ‘‘[a] defendant
may obtain review of a double jeopardy claim, even if it is
unpreserved, if he has received two punishments for two
crimes, which he claims were one crime, arising from the same
transaction and prosecuted at one trial . . . . Because the
claim presents an issue of law, our review is plenary. . . .
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.'' (Citations omitted; internal quotation marks
omitted.) State v. Nixon, supra, 92
Conn.App. 590-91.
Counts
one and two of the state's long form information
respectively charged that the defendant (1)
‘‘violate[d] the . . . protective order . . . by
having contact with the protected person, in violation of . .
. [§] 53a-223a'' and (2) that the defendant
‘‘violate[d] the . . . protective order . . . by
threatening and harassing the protected person, in violation
of . . . [§] 53a-223a.'' Although these counts
charge the defendant under the same statute, we conclude that
the offenses charged did not arise out of the same act. Our
courts have long held that ‘‘distinct repetitions
of a prohibited act, however closely they may follow each
other . . . may be punished as separate crimes without
offending the double jeopardy clause. . . . The same
transaction, in other words, may constitute separate and
distinct crimes where it is susceptible of separation into
parts, each of which in itself constitutes a completed
offense. . . . [T]he test is not whether the criminal intent
is one and the same and inspiring the whole transaction, but
whether separate acts have been committed with the requisite
criminal intent and are such as are made punishable by the
[statute].'' (Internal quotation marks omitted.)
State v. Miranda, 260 Conn. 93, 120, 794
A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154
L.Ed.2d 175 (2002); see also State v.
Morales, 164 Conn.App. 143, 157, 136 A.3d 278
(same), cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016);
State v. James E., 154 Conn.App. 795, 833,
112 A.3d 791 (2015) (same), cert. denied, 321 Conn. 911, 136
A.3d 1273 (2016).
In
other words, the fact that a defendant's two separate
charges of violation of a standing criminal protective order
arise from acts that closely follow one another is not
determinative, by itself, of whether they constitute a single
criminal offense. Rather, the question is whether each act
charged by the state is susceptible of separation into parts
which are separate, complete offenses and are thus punishable
under the controlling statute. The contact described in the
first count is less culpable than the conduct charged in the
second. In the first count, the defendant is merely charged
with prohibited contact with the victim. In the ...