State v. Mitchell ( 2020 )

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STATE OF CONNECTICUT v. JAMES MITCHELL
(AC 41897)
DiPentima, C. J., and Elgo and Moll, Js.
Syllabus
The defendant, who previously had been convicted of the crimes of attempt
to commit murder, conspiracy to commit murder, kidnapping in the
first degree, conspiracy to commit kidnapping in the first degree, sexual
assault in the first degree, conspiracy to commit sexual assault in the
first degree, assault in the first degree, conspiracy to commit assault in
the first degree and criminal possession of a firearm, appealed to this
court from the judgment of the trial court denying his motion to correct
an illegal sentence. The defendant claimed that the court improperly
concluded that his convictions for sexual assault in the first degree and
assault in the first degree, both predicated on liability under Pinkerton
v. United States (328 U.S. 640), did not violate the prohibition against
double jeopardy when considered in light of his conviction for conspir-
acy to commit kidnapping in the first degree. Held that the trial court
properly denied the defendant’s motion to correct an illegal sentence,
as the double jeopardy claim advanced by the defendant was untenable:
each of the crimes of sexual assault in the first degree, assault in the
first degree and conspiracy to commit kidnapping in the first degree
plainly required proof of a fact that the others did not, and they were
not the same offense under the test enunciated in Blockburger v. United
States (284 U.S. 299); moreover, this court could not conclude that
the statutes in question evinced a clear legislative intent to prohibit a
defendant from being punished for the offenses of conspiracy to commit
kidnapping in the first degree, sexual assault in the first degree, and
assault in the first degree when they arise from the same transaction,
as the burden of demonstrating a contrary legislative intent rested with
the defendant, and he made no attempt to demonstrate such contrary
legislative intent; furthermore, like the defendants in Pinkerton, the
defendant’s convictions and subsequent punishments for the conspiracy
count and the substantive counts that were predicated on Pinkerton
liability did not violate the double jeopardy clause, as the commission
of a substantive offense and a conspiracy to commit that offense are
separate and distinct offenses, and such claims have been rejected by
both federal courts and by our Supreme Court in State v. Walton (227
Conn. 32).
Argued October 9, 2019—officially released February 11, 2020
Procedural History
Substitute information charging the defendant with
the crimes of attempt to commit murder, conspiracy to
commit murder, kidnapping in the first degree, conspir-
acy to commit kidnapping in the first degree, sexual
assault in the first degree, conspiracy to commit sexual
assault in the first degree, assault in the first degree,
conspiracy to commit assault in the first degree and
criminal possession of a firearm, brought to the Supe-
rior Court in the judicial district of Hartford and tried
to the jury before Mullarkey, J.; verdict and judgment
of guilty, from which the defendant appealed to this
court, which affirmed the judgment; thereafter, the
court, Hon. Edward J. Mullarkey, judge trial referee,
granted in part the defendant’s motion to correct an
illegal sentence, and the defendant appealed to this
court. Affirmed.
James E. Mortimer, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and Donna Mambrino, senior assistant state’s
attorney, for the appellee (state).
Opinion
ELGO, J. The defendant, James Mitchell, appeals
from the judgment of the trial court denying in part his
motion to correct an illegal sentence. On appeal, the
defendant argues that the court improperly rejected his
claim that his conviction for two crimes predicated on
Pinkerton liability1 violates the constitutional prohibi-
tion against double jeopardy. We affirm the judgment
of the trial court.
The facts underlying the defendant’s criminal convic-
tion were set forth in this court’s decision on his direct
appeal. ‘‘On August 23, 2003, following an evening at a
nightclub, the victim was dropped off at a friend’s house
in East Hartford. Wanting to return home, and with her
residence too distant to walk, the victim called the
defendant for a ride. The victim chose to call the defen-
dant because she knew that Denasha Sanders, the
mother of one of the defendant’s children, had lived in
the same building as the victim and that the defendant
was frequently in the vicinity. The defendant and the
victim’s brother had had a prior confrontation concern-
ing the fact that the victim’s brother had dated Sanders.
Shortly before August 23, the victim’s brother and Sand-
ers had moved to North Carolina with the child of Sand-
ers and the defendant.
‘‘The defendant arrived driving a gold Nissan Altima
accompanied by another man, unknown to the victim
at the time, but later identified as Travis Hampton. The
victim agreed to go with the defendant and Hampton
to downtown Hartford to get something to eat. Upon
leaving a restaurant, the defendant became violent with
the victim, striking her with his cell phone and
demanding to know the location of the victim’s brother.
Out of fear that the defendant would harm her, the
victim lied to the defendant and told him that her
brother was at her grandfather’s house. The victim
attempted to leave the car, but the defendant pulled
her by the hair and locked the doors. During this time,
Hampton remained in the backseat of the vehicle.
‘‘The defendant subsequently determined that the vic-
tim’s brother was not at her grandfather’s house. He
drove the victim and Hampton to his mother’s house
in Hartford and ordered the victim out of the car. The
victim briefly complied and then returned to the vehicle
while the defendant and Hampton entered the house.
When the defendant and Hampton returned, the three
proceeded to leave the area by car. The defendant apol-
ogized to the victim for hitting her and offered her
marijuana, which she accepted. Instead of driving the
victim home, however, the defendant drove to Market
Street in Hartford and parked his vehicle. The defendant
told the victim he wanted to have sex with her and
proposed that they go to a hotel or to Sanders’ house.
‘‘The victim refused and got out of the car, intending
to walk home. The defendant produced a shotgun,
which he gave to Hampton, who pointed the weapon
at the victim’s face. The defendant and Hampton told
the victim to remove her pants. The victim testified that
the defendant raped her vaginally from behind. When
the defendant was finished, he forced the victim to
perform fellatio on Hampton. The victim complied
briefly, and Hampton proceeded to rape her vaginally,
while the defendant regained and held the shotgun. The
victim grabbed her pants and yelled at the defendant
to let her leave. The defendant told the victim she could
get into a nearby dumpster or run. As the victim
attempted to run, the defendant shot her in the side of
the stomach. The victim continued her attempt to run
away, followed by Hampton, who now had the shotgun.
The defendant pursued the victim in the car and blocked
her path. Hampton shot the victim again. He and the
defendant then left the scene. Shortly thereafter, the
defendant and Hampton returned briefly and then left
the area again. The victim dragged herself to the street,
where she was found by a passing driver. The police
and paramedics were summoned, and the victim was
taken to Hartford Hospital for treatment.’’ State v.
Mitchell, 110 Conn. App. 305, 308–10, 955 A.2d 84, cert.
denied, 289 Conn. 946, 959 A.2d 1012 (2008).
The defendant subsequently was arrested and
charged with attempt to commit murder as an accessory
in violation of General Statutes §§ 53a-8, 53a-49 (a) and
53a-54a (a), conspiracy to commit murder in violation
of General Statutes §§ 53a-48 (a) and 53a-54a (a), kid-
napping in the first degree in violation of General Stat-
utes §§ 53a-8 and 53a-92 (a) (2) (A), conspiracy to com-
mit kidnapping in the first degree in violation of §§ 53a-
48 and 53a-92 (a) (2) (A), sexual assault in the first
degree in violation of General Statutes §§ 53a-8 and 53a-
70 (a) (1), conspiracy to commit sexual assault in the
first degree in violation of §§ 53a-48 and 53a-70 (a) (1),
assault in the first degree in violation of General Stat-
utes §§ 53a-8 and 53a-59 (a) (5), conspiracy to commit
assault in the first degree in violation of §§ 53a-48 (a)
and 53a-59 (a) (5), and criminal possession of a firearm
in violation of General Statutes (Rev. to 2003) § 53a-
217 (a) (1). Following a trial, the jury found the defen-
dant guilty of all counts.2
At sentencing, the court vacated the defendant’s sen-
tences of conspiracy to commit murder, conspiracy to
commit sexual assault in the first degree, and conspir-
acy to commit assault in the first degree. The court,
at that time, explained that ‘‘[s]ince the conspiracies
merge, [the] sentences [for those three offenses] are
vacated to be renewed only if necessary on a resentenc-
ing should the conspiracy to [commit] kidnapping be
found not to be a valid conviction.’’ (Emphasis added.)
The court then sentenced the defendant to a total effec-
tive term of fifty-seven years of incarceration.3 From
that judgment, the petitioner unsuccessfully appealed
to this court. See State v. Mitchell, supra, 110 Conn.
App. 305.
In 2014, the defendant filed a motion to correct an
illegal sentence pursuant to Practice Book § 43-22.4 The
defendant subsequently was appointed counsel, who
filed a memorandum of law in support of the defen-
dant’s motion. At a hearing held on August 29, 2016,
the defendant clarified the twofold nature of his motion
to correct. First, the defendant asserted that the con-
spiracy convictions that ‘‘were ordered merged’’ at sen-
tencing ‘‘should have been vacated.’’ Second, the defen-
dant alleged that his convictions for sexual assault in
the first degree and assault in the first degree on the
basis of Pinkerton liability; see footnote 2 of this opin-
ion; violate the double jeopardy prohibition against mul-
tiple punishments in light of his conviction for conspir-
acy to commit kidnapping in the first degree.
Following the submission of memoranda of law by
the parties,5 the court granted in part the defendant’s
motion to correct. The court reviewed the transcript
of the November 1, 2005 sentencing proceeding and
noted that it had ordered the defendant’s convictions
for conspiracy to commit murder, conspiracy to commit
sexual assault in the first degree, and conspiracy to
commit assault in the first degree to be vacated in light
of the fact that they had merged with the conviction of
conspiracy to commit kidnapping in the first degree.
In granting in part the defendant’s motion to correct, the
court vacated its November 1, 2005 order and, instead,
ordered that the defendant’s convictions for conspiracy
to commit murder, conspiracy to commit sexual assault
in the first degree, and conspiracy to commit assault
in the first degree ‘‘are simply vacated.’’ See State v.
Polanco, 308 Conn. 242, 248, 61 A.3d 1084 (2013). At
the same time, the court rejected the defendant’s double
jeopardy challenge and, accordingly, denied in part the
motion to correct. From that judgment, the defendant
now appeals.
On appeal, the defendant contends that the court
improperly concluded that his convictions for sexual
assault in the first degree and assault in the first degree,
both of which were predicated on Pinkerton liability,
do not violate the prohibition against double jeopardy
when considered in light of his conviction for conspir-
acy to commit kidnapping in the first degree. On our
plenary review of that question of law; see State v.
Burnell, 290 Conn. 634, 642, 966 A.2d 168 (2009); we
disagree.
The double jeopardy clause of the fifth amendment
to the United States constitution provides that no per-
son shall ‘‘be subject for the same offense to be twice
put in jeopardy of life or limb . . . .’’6 That constitu-
tional provision is applicable to the states through the
due process clause of the fourteenth amendment. Ben-
ton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23
L. Ed. 2d 707 (1969). An alleged double jeopardy viola-
tion is a proper basis for a motion to correct an illegal
sentence. See State v. Wade, 178 Conn. App. 459, 466,
175 A.3d 1284 (2017), cert. denied, 327 Conn. 1002, 176
A.3d 1194 (2018).
As the United States Supreme Court has observed,
the double jeopardy clause has three functions: (1) it
protects against a second prosecution for the same
offense after acquittal; (2) it protects against a second
prosecution for the same offense after conviction; and
(3) it protects against multiple punishments for the
same offense. See Brown v. Ohio, 432 U.S. 161, 165, 97
S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The third function
is at issue in this appeal.
In the multiple punishments context, the interest pro-
tected by the double jeopardy clause ‘‘is limited to
ensuring that the total punishment did not exceed that
authorized by the legislature. . . . The purpose is to
ensure that sentencing courts do not exceed, by the
device of multiple punishments, the limits prescribed
by the legislative branch of government, in which lies
the substantive power to define crimes and prescribe
punishments.’’ (Citations omitted; emphasis added;
internal quotation marks omitted.) Jones v. Thomas,
491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322
(1989). Accordingly, the question of whether a court
constitutionally may impose multiple punishments is
resolved by ‘‘determining what punishments the [l]egis-
lative [b]ranch has authorized.’’ Whalen v. United
States, 445 U.S. 684, 688, 100 S. Ct. 1432, 63 L. Ed. 2d
715 (1980).
That determination involves 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 punish-
ments are forbidden only if both conditions are met.’’
(Internal quotation marks omitted.) State v. Alvaro F.,
291 Conn. 1, 6, 966 A.2d 712, cert. denied, 558 U.S. 882,
130 S. Ct. 200, 175 L. Ed. 2d 140 (2009). For purposes
of the present analysis, we assume without deciding
that the first prong of that analysis is met, as the state
alleged in its operative information that the offenses in
question were perpetrated at the same time and loca-
tion.7 Our focus, therefore, is on whether the defen-
dant’s convictions for sexual assault in the first degree
and assault in the first degree, which were predicated
on Pinkerton liability, constitute the same offense as
his conviction on the charge of conspiracy to commit
kidnapping in the first degree.
To answer that question, we apply the rule of statu-
tory construction enunciated in Blockburger v. United
States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306
(1932), in which the United States Supreme Court
explained: ‘‘[W]here the same act or transaction consti-
tutes 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.’’ That
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, 307 Conn. 1, 14, 52
A.3d 605 (2012), cert. denied, 569 U.S. 918, 133 S. Ct.
1804, 185 L. Ed. 2d 811 (2013). ‘‘The question to be
resolved is whether the . . . offenses charged are actu-
ally one.’’ (Internal quotation marks omitted.) State v.
Santiago, 145 Conn. App. 374, 380–81, 74 A.3d 571, cert.
denied, 310 Conn. 942, 79 A.3d 893 (2013). As a result,
‘‘[t]he issue, though essentially constitutional, becomes
one of statutory construction.’’ (Internal quotation
marks omitted.) State v. Alvaro F., supra, 291 Conn. 7.
With that test in mind, we turn to the three offenses
in question. The crime of sexual assault in the first
degree, as set forth in § 53a-70 (a) (1), requires proof
that the defendant (1) compelled another person to
engage in sexual intercourse, (2) used or threatened
force in so doing, and (3) reasonably caused the victim
to fear physical injury. By contrast, the crime of assault
in the first degree contained in § 53a-59 (a) (5) requires
proof that (1) the defendant acted with the intent to
cause physical injury, (2) the defendant caused physical
injury, and (3) that injury occurred due to the discharge
of a firearm. Lastly, to prove a conspiracy to commit
kidnapping in the first degree in violation of §§ 53a-48
and 53a-92 (a) (2) (A), the state had to prove, inter alia,
that the defendant (1) intended to agree or conspire
with Hampton, (2) intended to commit the crime of
kidnapping in the first degree, and (3) committed an
overt act in furtherance of that conspiracy. See gener-
ally State v. Balbuena, 168 Conn. App. 194, 200, 144
A.3d 540, cert. denied, 323 Conn. 936, 151 A.3d 384
(2016). Each of those three crimes plainly requires proof
of a fact that the others do not, and the defendant has
not argued otherwise in this appeal. They thus are not
the same offense under Blockburger.
That conclusion does not end our inquiry, as the
Blockburger test is simply a tool to divine legislative
intent. See United States v. Wylie, 625 F.2d 1371, 1381
(9th Cir. 1980) (‘‘Blockburger is merely a method for
ascertaining the congressional intent to impose sepa-
rate punishment for multiple offenses which arise dur-
ing the course of a single act or transaction’’), cert.
denied, 449 U.S. 1080, 101 S. Ct. 863, 66 L. Ed. 2d 804
(1981); State v. Greco, 216 Conn. 282, 293, 579 A.2d 84
(1990) (Blockburger is rule of statutory construction to
discern legislative purpose). For that reason, it ‘‘is not
controlling when the legislative intent is clear from the
face of the statute or the legislative history.’’ Garrett
v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85
L. Ed. 2d 764 (1985). Blockburger, then, is best viewed
as ‘‘a rebuttable presumption of legislative intent’’ that
is overcome ‘‘when a contrary [legislative] intent is man-
ifest.’’ (Internal quotation marks omitted.) State v.
Wright, 319 Conn. 684, 690, 127 A.3d 147 (2015).
The burden of demonstrating a contrary legislative
intent rests with the defendant. See id. In the present
case, the defendant has made no attempt to do so. He
has presented no such argument in either his principal
or reply brief and has not furnished this court with any
legislative history of the statutes in question. Nor does
our review of those statutes disclose any evidence of
such intent. We therefore cannot conclude that the leg-
islation in question evinces a clear legislative intent
to prohibit a defendant from being punished for the
offenses of conspiracy to commit kidnapping in the first
degree, sexual assault in the first degree, and assault
in the first degree, when they arise from the same trans-
action. Accordingly, the defendant’s claim fails the anal-
ysis traditionally employed by our courts in addressing
double jeopardy claims.
The defendant nonetheless argues that a different
analysis should control when Pinkerton liability is at
issue. Because that liability is predicated on criminal
offenses committed by a coconspirator; see, e.g., State
v. Coward, 292 Conn. 296, 307–308, 972 A.2d 691 (2009);
the defendant posits that such liability effectively ren-
ders his convictions for sexual assault in the first degree
and assault in the first degree tantamount to additional
conspiracy convictions in contravention of the double
jeopardy rule articulated in Braverman v. United
States, 317 U.S. 49, 63 S. Ct. 99, 87 L. Ed. 23 (1942). He
is mistaken.
Unlike the present case, Braverman did not involve
defendants convicted of both conspiracy and substan-
tive criminal offenses. In Braverman, the petitioners
were charged with ‘‘seven counts, each charging a con-
spiracy to violate a separate and distinct’’ penal statute.
(Emphasis added.) Id., 50. Following a trial, the jury
found the petitioners guilty of all seven conspiracy
counts. Id., 51. On appeal, the United States Supreme
Court held that a single agreement with multiple objec-
tives involving separate substantive offenses is but a
single conspiracy that is punishable only once under a
single conspiracy statute.8 Id., 54. At the same time,
the court recognized that ‘‘[a] conspiracy is not the
commission of the crime which it contemplates’’ and,
thus, remains distinguishable from the underlying sub-
stantive crime. Id.
The court reiterated that crucial distinction four years
later in Pinkerton v. United States, 328 U.S. 640, 641,
66 S. Ct. 1180, 90 L. Ed. 1489 (1946), which involved a
defendant, Daniel Pinkerton, who had been convicted
of one conspiracy count and six substantive counts.
Although there was ‘‘no evidence to show that Daniel
participated directly in the commission of the substan-
tive offenses on which his conviction has been sus-
tained . . . there was evidence to show that these sub-
stantive offenses were in fact committed by [his brother
and coconspirator Walter Pinkerton] in furtherance of
the unlawful agreement or conspiracy existing between
the brothers.’’ (Footnote omitted.) Id., 645. After the
trial court furnished what has come to be known as a
Pinkerton instruction in its charge; see, e.g., United
States v. Diaz, 176 F.3d 52, 100 (2d Cir. 1999); State v.
Brown, 299 Conn. 640, 657–59, 11 A.3d 663 (2011); ‘‘[t]he
question was submitted to the jury on the theory that
each [defendant] could be found guilty of the substan-
tive offenses, if it was found at the time those offenses
were committed [that the] [defendants] were parties to
an unlawful conspiracy and the substantive offenses
charged were in fact committed in furtherance of it.’’
Pinkerton v. United States, supra, 645.
Like the defendant in the present case, the defendants
in Pinkerton relied on Braverman for their contention
that their convictions of the substantive offenses
‘‘became merged in the conspiracy count’’ and that, as
a result, ‘‘only a single sentence for conspiracy could
be imposed.’’ Id., 642. The United States Supreme Court
disagreed, noting that, unlike the case before it, the
indictment in Braverman ‘‘charged no substantive
offense.’’ Id. The court then explained that ‘‘[i]t has
been long and consistently recognized . . . that the
commission of the substantive offense and a conspiracy
to commit it are separate and distinct offenses. The
power of [the legislature] to separate the two and to
affix to each a different penalty is well established.’’
Id., 643. Most significant, the court then held that ‘‘the
plea of double jeopardy is no defense to a conviction
for both offenses.’’ Id. As a result, the defendants’ con-
victions and subsequent punishments for the conspir-
acy count and the substantive counts that were predi-
cated on Pinkerton liability did not violate the double
jeopardy clause, and thus were affirmed. Id., 648.
Despite that precedent of this nation’s highest court,
defendants have continued to assert double jeopardy
objections when convicted of both conspiracy and sub-
stantive criminal offenses based on Pinkerton liability
in a single trial, albeit without success. For example,
the defendants in one case claimed that ‘‘their convic-
tions for conspiracy and for substantive acts taken in
furtherance of the conspiracy under a theory of [Pinker-
ton liability] violate the [d]ouble [j]eopardy [c]lause
. . . .’’ United States v. Cerone, 830 F.2d 938, 944 (8th
Cir. 1987), cert. denied, 486 U.S. 1006, 108 S. Ct. 1730,
100 L. Ed. 2d 194 (1988), and cert. denied sub nom.
Aiuppa v. United States, 486 U.S. 1006, 108 S. Ct. 1730,
100 L. Ed. 2d 194 (1988), and cert. denied sub nom.
LaPietra v. United States, 486 U.S. 1006, 108 S. Ct. 1730,
100 L. Ed. 2d 194 (1988), and cert. denied sub nom.
Lombardo v. United States, 486 U.S. 1006, 108 S. Ct.
1730, 100 L. Ed. 2d 194 (1988), and cert. denied sub
nom. Rockman v. United States, 486 U.S. 1006, 108 S.
Ct. 1730, 100 L. Ed. 2d 194 (1988). The United States
Court of Appeals for the Eighth Circuit disagreed, stat-
ing: ‘‘It is well settled that no double jeopardy violation
occurs when a person is convicted of conspiracy and
a substantive overt act of the conspiracy. . . . That the
substantive conviction was obtained through a Pinker-
ton instruction is irrelevant.’’ (Citations omitted.) Id.
The court continued: ‘‘Pinkerton itself disposed of their
[double jeopardy] argument. The [c]ourt there held that
convictions for conspiracy and substantive acts com-
mitted in furtherance of the conspiracy do not violate
the [d]ouble [j]eopardy [c]lause, even though the sub-
stantive conviction was obtained solely by means of
participation in the conspiracy.’’9 Id., 945. For that rea-
son, the court concluded that the defendants’ double
jeopardy claim lacked merit.
The Connecticut Supreme Court too has rejected
such a claim. In State v. Walton, 227 Conn. 32, 34, 630
A.2d 990 (1993), the named defendant appealed from
the judgment of conviction of one count of conspiracy
to distribute narcotics and one count of possession of
narcotics with intent to sell by a person who is not
drug-dependent. For purposes of its analysis of the
defendant’s claim, our Supreme Court expressly pre-
sumed ‘‘that the basis of the jury’s verdict’’ on the latter
offense was Pinkerton liability. Id., 43 n.10. The court
then concluded that the defendant’s claim ‘‘that applica-
tion of [Pinkerton liability] . . . violates his federal
double jeopardy right . . . not to be punished twice
for the same offense in the same trial’’ was ‘‘without
merit.’’ (Citation omitted.) Id., 52. In so doing, the court
expressly relied on both Pinkerton v. United States,
supra, 328 U.S. 643, and United States v. Cerone, supra,
830 F.2d 944, which it described as ‘‘well established
double jeopardy law,’’ and rejected the defendant’s dou-
ble jeopardy challenge. State v. Walton, supra, 53–54.
In light of the foregoing, we conclude that the double
jeopardy claim advanced by the defendant is untenable.
The court, therefore, properly denied in part the defen-
dant’s motion to correct an illegal sentence.
The judgment is affirmed.
In this opinion the other judges concurred.
1
See Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S. Ct. 1180, 90
L. Ed. 1489 (1946); see also State v. Walton, 227 Conn. 32, 45–46, 630 A.2d
990 (1993) (adopting Pinkerton doctrine as matter of state law). Commonly
referred to as a theory of vicarious liability; see, e.g., State v. Apodaca, 303
Conn. 378, 391, 33 A.3d 224 (2012); the Pinkerton doctrine holds that ‘‘a
conspirator may be held liable for criminal offenses committed by a cocon-
spirator that are within the scope of the conspiracy, are in furtherance of
it, and are reasonably foreseeable as a necessary or natural consequence
of the conspiracy. . . . The rationale for the principle is that, when the
conspirator [has] played a necessary part in setting in motion a discrete
course of criminal conduct, he should be held responsible, within appro-
priate limits, for the crimes committed as a natural and probable result of
that course of conduct.’’ (Internal quotation marks omitted.) State v. Coward,
292 Conn. 296, 307–308, 972 A.2d 691 (2009).
2
In returning its verdict, the jury completed a special verdict form. That
form indicates that the jury found the defendant guilty of both sexual assault
in the first degree and assault in the first degree ‘‘by way of Pinkerton
vicarious liability.’’
3
The court sentenced the defendant to a term of twenty years on the
count of conspiracy to commit kidnapping in the first degree count, which
sentence was to run concurrently with a twenty-five year sentence on the
count of kidnapping in the first degree. The court imposed a sentence of
ten years of incarceration on the count of sexual assault in the first degree
and two years of incarceration on the count of criminal possession of a
firearm, both of which were to run consecutive to the twenty-five year
sentence for kidnapping in the first degree. The court also sentenced the
defendant to twenty year terms of incarceration on both the count of attempt
to commit murder and the count of assault in the first degree, which the
court ordered to run concurrently with each other, but consecutively to the
defendant’s other sentences.
4
Practice Book § 43-22 provides that ‘‘[t]he judicial authority may at any
time correct an illegal sentence or other illegal disposition, or it may correct
a sentence imposed in an illegal manner or any other disposition made in
an illegal manner.’’
5
Apart from the September 30, 2016 memorandum of law filed by his
defense counsel, the defendant, on December 22, 2016, filed a document
he prepared, titled ‘‘Defendant’s Amended Memorandum of Law in Support
of Motion to Correct Illegal Sentence.’’ In that filing, the defendant alleged
that Hampton, his sole coconspirator, had been acquitted in a separate
criminal proceeding on the charge of sexual assault in the first degree. In
light of that development, the defendant argued that his own conviction for
sexual assault in the first degree pursuant to the Pinkerton doctrine was
‘‘invalid and must be vacated.’’ After hearing further argument from the
parties at a hearing held on September 18, 2017, the court summarily rejected
the defendant’s claim. In this appeal, the defendant has not briefed any
claim of error with respect to that determination. See Commissioner v.
Youth Challenge of Greater Hartford, Inc., 219 Conn. 657, 659 n.2, 594 A.2d
958 (1991) (deeming claims that were not briefed on appeal to be
abandoned).
6
We recognize that the defendant also invoked the protections of the
Connecticut constitution in his motion to correct. Unlike its federal counter-
part, our state constitution does not contain an explicit double jeopardy
provision. Our Supreme Court nonetheless has held that the due process
guarantees found in article first, § 8, of the Connecticut constitution embody
the protection afforded under the United States constitution. See State v.
Michael J., 274 Conn. 321, 350–51, 875 A.2d 510 (2005). At the same time,
we note that ‘‘this court and our Supreme Court have held that with respect
to the protection against double jeopardy, the state constitution does not
afford greater protection than that afforded by its federal counterpart.’’ State
v. Hearl, 182 Conn. App. 237, 271 n.28, 190 A.3d 42, cert. denied, 330 Conn.
903, 192 A.3d 425 (2018). On appeal, the defendant has not provided this
court with an independent state constitutional analysis in accordance with
State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), rendering any
claim with respect to our state constitution abandoned. See State v. Bennett,
324 Conn. 744, 748 n.1, 155 A.3d 188 (2017).
7
With respect to each of the three counts in question, the state alleged
in its September 20, 2005 amended information that those offenses all tran-
spired on ‘‘August 23, 2003, at approximately 5:30 a.m., in the vicinity of
the Citgo Gas Station at 410 Market Street’’ in Hartford.
8
In the present case, the trial court adhered to the Braverman rule follow-
ing the jury’s verdict at the defendant’s criminal trial by setting aside his
multiple conspiracy convictions.
9
The defendant’s reliance on United States v. Rosenberg, 888 F.2d 1406
(D.C. Cir. 1989), is misplaced. As the United States Court of Appeals for
the District of Columbia Circuit plainly indicated, that case—unlike Pinker-
ton—did not involve a double jeopardy claim predicated on multiple punish-
ments stemming from a single prosecution. Id., 1414. Rather, Rosenberg
involved ‘‘the unique problem caused by successive prosecutions of greater
and lesser-included offenses . . . .’’ Id. On that basis, that federal court
opined that the holding of United States v. Cerone, supra, 830 F.2d 944,
was ‘‘inapposite to the issue we are confronting.’’ United States v. Rosenberg,
supra, 1414.
Unlike Rosenberg, the present case does not concern the double jeopardy
clause’s protection against successive prosecutions. Rather, it concerns the
imposition of multiple punishments in a single prosecution, as did both
Pinkerton and Cerone.