State v. Porter , 167 Conn. App. 281 ( 2016 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
STATE OF CONNECTICUT v. KENNETH PORTER
(AC 35949)
Beach, Sheldon and Harper, Js.
Argued January 4—officially released August 2, 2016
(Appeal from Superior Court, judicial district of New
Haven, Mullins, J.)
Mark Rademacher, assistant public defender, with
whom, on the brief, was Janice Wolf, senior assistant
public defender, for the appellant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Michael Dear-
ington, state’s attorney, and Marc Ramia, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
BEACH, J. The defendant, Kenneth Porter, appeals
from the judgment of conviction, rendered after 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.1 The defendant claims that (1) his conviction of
both assault of an officer and interfering with an officer
violated the protection of the federal constitution
against double jeopardy, and (2) the court erred in deny-
ing his request to instruct the jury that interfering with
an officer is a lesser included offense of assault of an
officer. We disagree.
The jury reasonably could have found the following
facts. On May 24, 2010, Brian Donnelly, a patrol officer
with the Yale Police Department, heard a police broad-
cast regarding a domestic dispute involving the defen-
dant. Donnelly responded by proceeding to Winchester
Avenue, where he spotted a vehicle matching the broad-
cast 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 contin-
ued to reach for the waistband of his pants and else-
where in the vehicle. Donnelly finally was able to
remove the defendant from the vehicle. While the offi-
cers were trying to handcuff the defendant, the defen-
dant 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.’’
Donnelly2 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 for-
mally arrested.
Following a trial to a jury, the defendant was con-
victed of two counts of assault of public safety person-
nel, possession of a narcotic substance, possession of
a controlled substance, and interfering with an officer.
The defendant was sentenced on each of the assault
convictions to ten years incarceration, execution sus-
pended 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 sub-
stance, were ordered to run concurrently with each
other and with the assault sentences. The defendant’s
total effective sentence was, thus, twenty years incar-
ceration, execution suspended after fourteen years and
five years of probation. This appeal followed.
I
The defendant claims that his conviction of assault
of Donnelly (count one) and interfering with Donnelly
(count seven) violated the protection of the federal
constitution against double jeopardy because, as
charged by the state in the long form information,
interfering with an officer is a lesser included offense
of assault of an officer. We agree that the Blockburger3
test is satisfied as to the elements of the crimes, but
disagree with the conclusion that reversal is required
in the circumstances of this case.
The defendant concedes that his double jeopardy
claim is unpreserved,4 and thus he seeks review of that
claim pursuant to State v. Golding, 213 Conn. 233, 239–
40, 567 A.2d 823 (1989).5 We review the claim because
the record is adequate for review and the claim of a
double jeopardy violation is of constitutional magni-
tude. See State v. Laws, 37 Conn. App. 276, 289, 655
A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210
(1995); see also State v. Barber, 64 Conn. App. 659, 671,
781 A.2d 464 (‘‘[i]f double jeopardy claims arising in
the context of a single trial are raised for the first time on
appeal, these claims are reviewable’’ [internal quotation
marks omitted]), cert. denied, 258 Conn. 925, 783 A.2d
1030 (2001).
‘‘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. . . . Although the Connecticut
constitution does not include a double jeopardy provi-
sion, the due process guarantee of article first, § 9, of
our state constitution encompasses protection against
double jeopardy. . . . 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. . . . Tradi-
tionally we have applied the Blockburger test to deter-
mine 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 [284 U.S. 299,
304, 52 S. Ct. 180, 76 L. Ed. 306 (1932)]. . . . Signifi-
cantly, [t]he Blockburger rule is not controlling when
the legislative intent [permitting a defendant to be pros-
ecuted under both statutes] is clear from the face of
the statute or the legislative history.’’ (Citations omitted;
internal quotation marks omitted.) State v. Bernacki,
307 Conn. 1, 9–10, 52 A.3d 605 (2012), cert. denied,
U.S. , 133 S. Ct. 1804, 185 L. Ed. 2d 81 (2013). ‘‘The
defendant on appeal bears the burden of proving that
the prosecutions are for the same offense in law and
fact.’’ (Internal quotation marks omitted.) State v. Scott,
270 Conn. 92, 98, 851 A.2d 291 (2004), cert. denied, 544
U.S. 987, 125 S. Ct. 1861, 161 L. Ed. 2d 746 (2005).
In the present case, of course, the context is that two
counts of the operative information raise significant
double jeopardy concerns. The first count alleged, in
pertinent part, that ‘‘on May 24, 2010, at or around 7:23
p.m., at or near Ashmun Street, in . . . New Haven,
. . . the defendant . . . with the intent to prevent a
reasonably identifiable peace officer from performing
his duties, to wit: Officer Brian Donnelly, and while
such peace officer was acting in the performance of
his duties such person caused physical injury to such
peace officer in violation of [§ 53a-167c (a) (1)].’’ Count
seven alleged, in pertinent part, that ‘‘on May 24, 2010,
at or around 7:23 p.m., at or near Ashmun Street, in
. . . New Haven, . . . the defendant . . . obstructed,
resisted, hindered and endangered a peace officer, to
wit: Officer Brian Donnelly, while in the performance
of such peace officer’s duties in violation of [§ 53a-
167a].’’ No bill of particulars was filed, and the issue
was not raised or preserved in the trial court.
The state concedes that, solely on the allegations of
the information, the seventh count may be considered
to be included within count one and, if viewed under
the Blockburger analysis and under the assumption that
both convictions were based on the same conduct,6
convictions on both counts violate the constitutional
protection against double jeopardy. The information
alleges that the two crimes occurred at the same time
and place, and involve the same officer. Thus, if we
decide the matter on the basis of the charging document
alone, one conviction must be vacated.
There are two distinct approaches followed in our
appellate cases where it is not apparent from the charg-
ing document that different conduct forms the factual
basis for each count. One line, which the defendant
advocates that we follow, states that we are simply to
apply the Blockburger analysis to the crimes charged
and not to examine the underlying evidence. As stated
in State v. Mincewicz, 64 Conn. App. 687, 691, 781 A.2d
455, cert. denied, 258 Conn. 924, 783 A.2d 1028 (2001):
‘‘It repeatedly has been held that to determine whether
two charges arose from the same act or transaction,
we look to the information, as amplified by the bill of
particulars, if any. State v. Goldson, 178 Conn. 422, 424,
423 A.2d 114 (1979);7 accord State v. Devino, 195 Conn.
70, 74, 485 A.2d 1302 (1985); State v. Williams, 59 Conn.
App. 603, 606–607, 757 A.2d 1191, cert. denied, 254 Conn.
946, 762 A.2d 907 (2000); State v. Patrick, 42 Conn. App.
640, 645, 681 A.2d 380 (1996); State v. Coleman, 41
Conn. App. 255, 275, 675 A.2d 887 (1996), rev’d on other
grounds, 242 Conn. 523, 700 A.2d 14 (1997); State v.
Glover, 40 Conn. App. 387, 391, 671 A.2d 384, cert.
denied, 236 Conn. 918, 673 A.2d 1145 (1996); State v.
Smart, [37 Conn. App. 360, 365, 656 A.2d 677, cert.
denied, 233 Conn. 914, 659 A.2d 187 (1995)]; State v.
Roy, 34 Conn. App. 751, 768, 643 A.2d 289 (1994), rev’d
on other grounds, 233 Conn. 211, 658 A.2d 566 (1995);
State v. Nita, 27 Conn. App. 103, 113, 604 A.2d 1322,
cert. denied, 222 Conn. 903, 606 A.2d 1329, cert. denied,
506 U.S. 844, 113 S. Ct. 133, 121 L. Ed. 2d 86 (1992);
State v. Marsala, 1 Conn. App. 647, 650, 474 A.2d 488
(1984).’’ (Footnote added.)
The state argues that we should follow a second line
of cases, highlighted by State v. Brown, 299 Conn. 640,
652–55, 11 A.3d 663 (2011). In Brown, the defendant
asserted for the first time on appeal that his double
jeopardy rights had been violated because he had been
convicted of two crimes, which, according to him,
should have been merged pursuant to Blockburger. Id.,
650. He had been convicted of both robbery in the first
degree and attempted robbery in the first degree. Id.
He alleged that the charges arose out of the same trans-
action. Id. The state argued that the charges arose from
different acts, and thus the defendant could constitu-
tionally be convicted of both. Id.
The court reviewed the evidence and determined that
the overall transaction, as alleged in the information,
could be separated into parts, and separate acts could
have constituted separate offenses. Id., 654. Because
the same acts were not necessarily the common factual
predicates for multiple convictions, the defendant had
not shown that he had been subjected to double jeop-
ardy. Id. Following the Brown line of cases, then, an
appellate court reviewing an unpreserved claim of dou-
ble jeopardy must examine the evidence to determine
whether the alleged transaction logically can encom-
pass separate acts, which in turn form the basis of
separate convictions. Under Golding, it is the defen-
dant’s burden to establish a constitutional violation,
and the burden cannot be sustained if the defendant is
unable to prove that he was in fact convicted twice for
the same acts where the Blockburger test is satisfied
as to the elements of the two crimes.8 See also State
v. Kulmac, 230 Conn. 43, 66–70, 644 A.2d 887 (1994)
(examining evidence to determine that convictions for
sexual assault in first and second degree arose from
separate acts or transactions); State v. James E., 154
Conn. App. 795, 833–34, 112 A.3d 791 (2015) (examining
evidence to reach conclusion that two counts of assault
of elderly person in first degree arose from separate
acts or transactions); State v. Shenkman, 154 Conn.
App. 45, 67–68, 104 A.3d 780 (2014) (concluding, after
examining evidence and bill of particulars, that attempt
to commit assault of public safety personnel and
interfering with officer stemmed from separate acts or
transactions), cert. denied, 315 Conn. 921, 107 A.3d 959
(2015). There also is a group of cases that examines
the evidence to determine whether the acts constituting
the offenses were part of the same act or transaction
when the information and the bill of particulars, if any,
fail to provide specific dates and times for the charged
acts. See, e.g., State v. Miranda, 260 Conn. 93, 121, 794
A.2d 506 (2002) (information charged defendant with
two counts of assault in first degree ‘‘on diverse dates
and times between October, 1992, and January 27, 1993’’
[internal quotation marks omitted]), cert. denied, 537
U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); State
v. Howard F., 86 Conn. App. 702, 704, 862 A.2d 331
(2004) (information charged defendant with two counts
of risk of injury ‘‘between July 1, 2000, and March 24,
2001’’), cert. denied, 273 Conn. 924, 871 A.2d 1032
(2005).
Although it may plausibly have been argued that the
Supreme Court had not explicitly addressed as a distinct
issue on appeal the question of whether it was permissi-
ble to examine the evidence to determine whether mul-
tiple convictions could have been based on separate
acts, Brown quite clearly provides the framework cur-
rently to be applied, and two very recent decisions by
this court squarely address the issue. In State v. Morales,
164 Conn. App. 143, 154, A.3d (2016), this court
held that we are to examine the evidence when
determining whether a defendant was convicted of sep-
arate offenses. In State v. Urbanowksi, 163 Conn. App.
377, 394, A.3d (2016), this court concluded, after
examining the evidence, that the defendant had not met
his burden to show that two convictions, which he
claimed had violated double jeopardy, arose out of the
same act or transaction, and he thus failed to meet his
burden of showing that the jury actually convicted him
twice for the same offense. We conclude that Brown
implicitly overruled Mincewicz, and that Morales and
Urbanowski are binding authority for the proposition
that where the information and bill of particulars, if
any, do not separate a transaction into separate parts,
the reviewing court has the obligation to determine
whether the multiple convictions reasonably could have
been predicated on different conduct.
In the present case, there were facts in evidence that
the defendant resisted when Donnelly tried to remove
him from the vehicle, and that the defendant tried to
kick Donnelly and to stab him with a screwdriver when
Donnelly and other officers tried to handcuff him out-
side the vehicle. There was evidence that, during the
struggle to handcuff the defendant, the defendant
fought ‘‘wildly’’ and injured Donnelly. These acts rea-
sonably could have formed the factual basis for the
offense of assault of public safety personnel.
There was also evidence of distinct and separate acts
that reasonably could have formed the basis for the
offense of interfering with an officer. The state urged
in closing argument that the jury find the defendant
guilty of the interfering with an officer charge by virtue
of his attempting to swallow the drugs. There was evi-
dence presented at trial that during the struggle to hand-
cuff the defendant, the defendant removed a bag of
marijuana from his pants and put it in his mouth.
Accordingly, the jury reasonably could have con-
cluded, based on the evidence, that the two crimes did
not stem from the same conduct. Thus, the first prong
of Blockburger, that the offenses must have arisen from
the same act, was not satisfied. The failure to meet the
first prong is fatal to the defendant’s double jeopardy
claim because both conditions of Blockburger must be
met in order for the convictions to amount to double
jeopardy. See State v. Brown, supra, 299 Conn. 652.
Accordingly, the defendant has not met his burden of
proving under the third prong of Golding that a constitu-
tional violation exists.
II
The defendant also claims that the court erred in
denying his request for an instruction that interfering
with an officer is a lesser included offense of assault
of an officer. We disagree.
On February 21, 2013, the court charged the jury late
in the day and adjourned, indicating that the jury would
begin deliberations the following day. The following
morning, outside the presence of the jury, the court
addressed certain concerns of counsel regarding the
charge. The court then asked, ‘‘Anything else before we
bring in the jury?’’ For the first time, defense counsel
raised the following issue: ‘‘[The defendant] is making
the request for a specific instruction to the jury before
they retire to the jury deliberation room that interfering
with an officer is a lesser included offense of assault
on an officer, and he’s looking for that specific instruc-
tion to the jury.’’ The state objected on the ground that
the jury charge had been completed and that the acts
underlying the two offenses were separate and distinct.
The court denied the request, stating: ‘‘There is a way
to complete the interfering without the assault on the
officer, and there’s facts presented in this case that
could make those two separate crimes. . . . I think
they’re properly charged separately.’’
‘‘There is no fundamental constitutional right to a
jury instruction on every lesser included offense . . .
rather, the right to such an instruction is purely a matter
of our common law. . . . In State v. Whistnant, 179
Conn. 576, 588, 427 A.2d 414 (1980), our Supreme Court
determined that a lesser included offense instruction
should be given when: (1) an appropriate instruction
is requested by either the state or the defendant; (2) it
is not possible to commit the greater offense, in the
manner described in the information or bill of particu-
lars, without having first committed the lesser; (3) there
is some evidence, introduced by either the state or the
defendant, or by a combination of their proofs, which
justifies conviction of the lesser offense; and (4) the
proof on the element or elements which differentiate
the lesser offense from the offense charged is suffi-
ciently in dispute to permit the jury consistently to find
the defendant innocent of the greater offense but guilty
of the lesser.’’ (Citation omitted; internal quotation
marks omitted.) State v. Rudd, 62 Conn. App. 702, 705–
706, 773 A.2d 370 (2001).
A primary issue is whether the defendant requested
an ‘‘appropriate instruction’’ under the first prong of
Whistnant. ‘‘It is well settled that [a] proposed instruc-
tion on a lesser included offense constitutes an appro-
priate instruction for purposes of the first prong of
Whistnant if it complies with Practice Book [§ 42-18].
. . . This court favors adherence to the prescriptions
of § 42-18 to further that section’s purpose of making
instructional requests less confusing.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Smith,
262 Conn. 453, 465, 815 A.2d 1216 (2003). Section 42-
18 (a) provides in relevant part: ‘‘When there are several
requests, they shall be in separate and numbered para-
graphs, each containing a single proposition of law
clearly and concisely stated with the citation of author-
ity upon which it is based, and the evidence to which
the proposition would apply. . . .’’
‘‘Although strict compliance with the provisions of
§ 42-18 is certainly the least perilous method of satis-
fying Whistnant’s first prong, failure to do so is not,
by itself, fatal to the defendant’s claim. We have deemed
the first prong of Whistnant satisfied when the record
indicates that the trial court knew the precise point to
which the defendant wished to call attention. . . .
Indeed, even partial compliance with § 42-18, accompa-
nied by substantial additional support in the record
from either party, such as detailed colloquies with the
court and opposing counsel and a postcharge excep-
tion, will also satisfy the first prong of Whistnant. This
is true as long as the trial court is informed adequately of
the factual and legal bases for the instructional request.’’
(Citations omitted; internal quotation marks omitted.)
State v. Smith, supra, 262 Conn. 466.
In this case, the defendant did not file a written
request to charge. In State v. Joseph, 116 Conn. App.
339, 348, 976 A.2d 772 (2009), this court addressed the
issue of whether the first prong of Whistnant was satis-
fied in the absence of a written request to charge. We
concluded that, under the facts of that case, the first
prong was satisfied: ‘‘The record reflects an in-depth
discussion of this issue between the defendant’s coun-
sel, the prosecutor and the court. . . . The record also
reflects that the defendant’s counsel clearly argued the
legal basis of her request . . . the court summarized
to the parties its understanding of the defendant’s argu-
ment, the state clearly argued its opposition to the
defendant’s request and the court stated that it would
‘take [the arguments] under consideration. . . .’ Under
these circumstances, it is clear that the court was made
aware of the legal and factual basis of the defendant’s
request. . . . We note that in most situations, in order
to satisfy the first prong of Whistnant, a party must
submit the request in writing. In this case, however, we
conclude that this requirement was excused because
the court expressly stated that it would take ‘under
consideration’ the arguments on this issue. See State
v. Herring, [210 Conn. 78, 105 n.25, 554 A.2d 686] (first
prong of Whistnant satisfied where court stated that
oral request sufficed) [cert. denied, 492 U.S. 912, 109
S. Ct. 3230, 106 L. Ed. 2d 579 1989)]. Therefore, under
these circumstances, we conclude that the defendant’s
request satisfied the first prong of Whistnant.’’ (Citation
omitted; footnotes omitted.) State v. Joseph, supra, 116
Conn. App. 349–51.
The circumstances of the present case are very differ-
ent from those in Joseph. The defendant in the present
case briefly and orally requested, for the first time after
the jury had received its instructions, that the jury be
instructed that interfering with an officer was a lesser
included offense of assault of an officer. A brief and
undetailed colloquy followed. We cannot say, under
the facts of this case, that the court was adequately
informed of the factual or legal basis of the defendant’s
request. It was not at all clear precisely what was
requested. It is possible that the defendant was
requesting an instruction to the effect that he could not
be convicted of both the first and the seventh count,
and it is also possible that he wanted the jury to be
instructed that, in the event that the counts concerned
different transactions, a lesser included offense instruc-
tion be given as to the first count. It appears that the
court and the parties had in mind the first possibility,
because the brief discussion centered on the proposi-
tion that the charges involved different conduct.
In his appellate brief, the defendant argues that the
first prong of Whistnant was satisfied simply because
he requested a lesser included offense charge. He con-
tends that the state incorrectly argued that there was
a separate factual basis for the charge of interfering
with an officer, and that such a distinct basis was not
enumerated in the information. The point that the defen-
dant argues on appeal, however, was never distinctly
brought to the attention of the trial court. Under these
circumstances, we conclude that the precise point the
defendant wished to make was never adequately or
timely presented to the trial court.9 The defendant has
not satisfied the first prong of Whistnant, and, accord-
ingly, the trial court properly denied his request for a
lesser included offense instruction.10
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was also convicted on a second count of assault of public
safety personnel in violation of § 53a-167c (a) (1), and one count each of
possession of a narcotic substance in violation of General Statutes § 21a-
279 (a), and possession of a controlled substance in violation of General
Statutes § 21a-279 (c). The trial court dismissed count six, possession of a
controlled substance.
2
The defendant was also convicted on the second count, which alleged
that he assaulted Blazejowski. That conviction is not at issue in this appeal.
3
Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed.
306 (1932).
4
The state argues that the defendant implicitly waived his double jeopardy
claim by not raising it during trial. The state argues that silence in this
context amounts to implicit waiver and, thus, Golding review is unavailable.
In State v. Chimenti, 115 Conn. App. 207, 230, 172 A.2d 293, cert. denied,
293 Conn. 909, 978 A.2d 1111 (2009), however, we stated: ‘‘[T]here are two
lines of cases involving principles of double jeopardy and the applicability
and availability of Golding review. The first involves double jeopardy claims
arising in the course of a single trial and allows for Golding review. See,
e.g., State v. Brooks, 88 Conn. App. 204, 214–17, 868 A.2d 778, cert. denied,
273 Conn. 933, 873 A.2d 1001 (2005); State v. Nixon, 32 Conn. App. 224,
235, 630 A.2d 74 (1993), aff’d, 231 Conn. 545, 651 A.2d 1264 (1995). The
second line of cases involves double jeopardy claims arising out of the trial
of a defendant who has a double jeopardy claim that arises from a prior
proceeding and generally prevents a determination of an unpreserved claim
on the merits.’’ Although silence can render double jeopardy claims in the
second type of cases unreviewable under Golding, in the present case, the
double jeopardy claim arose in the course of a single trial and, thus, Golding
review is available for the defendant’s unpreserved claim.
5
Under Golding, ‘‘a defendant can prevail on a claim of constitutional
error not preserved at trial 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 . . . 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.’’ (Emphasis omitted; footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R. 317 Conn.
773, 781, 120 A.3d 1185 (2015) (modifying third prong of Golding).
6
The Blockburger test, whether each crime requires proof of an element
which the other does not require, is applicable only if the multiple crimes
arise out of the same act or transaction. State v. Goldson, 178 Conn. 422,
424, 423 A.2d 114 (1979).
7
A close reading of Goldson and of Brown v. Ohio, 432 U.S. 161, 97 S.
Ct. 2221, 53 L. Ed. 2d 187 (1977), on which Goldson relied, reveals that
neither case held that the underlying evidence could not be examined in
order to determine whether a defendant had been convicted twice for the
same conduct. In Brown, in fact, the information alleged that the two crimes
were committed on two separate dates, but the transactions were nonethe-
less identical. In Goldson, which involved a claim that one conviction was
a lesser included offense of another and thus dual convictions constituted
a violation of the prohibition against double jeopardy, the state never argued
that the conduct forming the basis for the two crimes was not identical.
State v. Goldson, supra, 178 Conn. 427. The cases have nonetheless been
cited for the proposition that only the charging documents may be reviewed.
8
We note that the Brown analysis is appropriate where the claim is
unpreserved and Golding review is sought. The analysis may be quite differ-
ent in situations in which the claimed error has been preserved.
9
We note that we decided in part I of this opinion that the jury could
have determined that the convictions on the first and seventh counts were
premised on different conduct. Had the request for jury instructions on the
matter been adequately presented, we may have had a more precise answer:
instead of ‘‘could have determined,’’ we perhaps would know precisely what
the jury did determine.
10
The defendant also seeks review of his claim under State v. Golding,
supra, 213 Conn. 239–40. We note that the first prong of Whistnant supplants
our general preservation analysis. State v. Jefferson, 114 Conn. App. 566,
576, 970 A.2d 797 (2009). The second prong of Golding is not met because
his claim is not of constitutional magnitude. See State v. Rudd, supra, 62
Conn. App. 705–706 (instruction on lesser included offense matter of com-
mon law and not constitutional right).
The defendant also seeks to prevail under the plain error doctrine. ‘‘[The
plain error] doctrine, codified at Practice Book § 60–5, is an extraordinary
remedy used by appellate courts to rectify errors committed at trial that,
although unpreserved, are of such monumental proportion that they threaten
to erode our system of justice and work a serious and manifest injustice
on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule
of reviewability. It is a rule of reversibility. That is, it is a doctrine that this
court invokes in order to rectify a trial court ruling that, although either
not properly preserved or never raised at all in the trial court, nonetheless
requires reversal of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly extraordinary
situations [in which] the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit
in this very demanding standard is the notion . . . that invocation of the
plain error doctrine is reserved for occasions requiring the reversal of the
judgment under review.’’ (Internal quotation marks omitted.) State v. Myers,
290 Conn. 278, 289, 963 A.2d 11 (2009). The case before us does not present
circumstances requiring reversal because of plain error.