State v. Tinsley ( 2020 )

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STATE OF CONNECTICUT v. DARRELL TINSLEY
(AC 41975)
DiPentima, C. J., and Bright and Devlin, Js.
Syllabus
The defendant, who previously had been convicted of the crimes of man-
slaughter in the first degree and risk of injury to a child, appealed to
this court from the judgment of the trial court denying his motion to
correct an illegal sentence. The defendant claimed that the trial court
improperly concluded that his conviction did not violate the constitu-
tional guarantee against double jeopardy because the defendant failed
to demonstrate that both offenses occurred during the same transaction
and the crime of risk of injury to a child was not a lesser included
offense of manslaughter in the first degree as charged. Held that the
trial court improperly denied the defendant’s motion to correct an illegal
sentence because his right to be free from double jeopardy was violated,
the offenses of manslaughter in the first degree and risk of injury to a
child arose from the same act or transaction, the long form information
having alleged that both crimes occurred on the same day, at the same
location, and were perpetrated on the same victim, all of the victim’s
wounds were recent, were inflicted in the same short period of time,
and occurred not long before the victim’s death, including the fatal
laceration to the victim’s liver, and the state’s theory of the case, pre-
sented during trial and its closing argument, was that the defendant
inflicted multiple blows to the head, chest and abdomen of the victim
over a short period of time, in a single, continuous attack; moreover,
the offenses of manslaughter in the first degree and risk of injury to a
child constituted the same offense, as risk of injury to a child was a
lesser included offense of manslaughter in the first degree as charged
because it was not possible for the defendant to have committed man-
slaughter in the first degree as charged by causing the death of the
victim by blunt trauma to the abdomen without also impairing the health
of the victim by inflicting trauma to his abdomen, as charged in the risk
of injury to a child offense; furthermore, there was no authority that
would support a conclusion that the legislature intended to specifically
authorize multiple punishments under the statutes in question.
Argued December 3, 2019—officially released May 12, 2020
Procedural History
Information charging the defendant with the crimes
of capital felony and risk of injury to a child, brought
to the Superior Court in the judicial district of Hartford
and tried to the jury before Barry, J.; verdict and judg-
ment of guilty of manslaughter in the first degree and
risk of injury to a child, from which the defendant
appealed to this court, Lavery, C.J., and Shaller and
Zarella, Js., which affirmed the judgment of the trial
court; thereafter, the trial court, Schuman, J., denied
the defendant’s motion to correct an illegal sentence,
and the defendant appealed to this court. Reversed;
further proceedings.
Naomi T. Fetterman, for the appellant (defendant).
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and John F. Fahey, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Darrell Tinsley,
appeals from the judgment of the trial court denying
his motion to correct an illegal sentence. On appeal,
the defendant claims that the court erred in denying
his motion to correct because his conviction for man-
slaughter in the first degree in violation of General
Statutes § 53a-55 (a) (1)1 and risk of injury to a child
in violation of General Statutes (Rev. to 1995) § 53-21,2
as amended by No. 95-142 of the 1995 Public Acts,
violated the constitutional prohibition against double
jeopardy. We agree with the defendant and, therefore,
reverse the judgment of the trial court.
In affirming the defendant’s conviction on direct
appeal, we concluded that the jury reasonably could
have found the following facts. ‘‘[T]he victim’s mother,
and the defendant met at an office building in downtown
Hartford, where they worked as security personnel.
Although the defendant and [the victim’s mother] had an
unstable relationship, they cohabited in a one bedroom
apartment along with the [fifteen month old] victim
. . . . During the course of the adults’ relationship,
individuals who knew the victim noticed a marked
change in his behavior when he was in the presence of
the defendant. At such times, the victim was timid,
withdrawn and afraid of the defendant. The defendant’s
attitude toward the victim ranged from indifference to
dislike. When [the victim’s mother] was no longer able
to avail herself of professional child care, the defendant
sometimes took care of the victim while [the victim’s
mother] worked.
‘‘Prior to his death, the victim was in good health.
On December 8, 1996, between 8 a.m. and 8:30 a.m.,
the defendant drove [the victim’s mother] to her place
of employment. According to [the victim’s mother],
there was nothing wrong with the victim when she went
to work. During the morning, [the victim’s mother] and
the defendant spoke by telephone several times con-
cerning the victim. At approximately 11:15 a.m., the
defendant telephoned [the victim’s mother], stating that
there was something wrong with the victim and that
he did not know what was the matter. The defendant
then drove the victim to [the victim’s mother’s] place
of employment, and from there all three proceeded
to the Connecticut Children’s Medical Center (medical
center) in Hartford. They were involved in a motor
vehicle accident en route.
‘‘When he arrived at the medical center, the victim
was in critical condition because he was not breathing
and had little heart activity. The victim died when resus-
citation efforts failed. An autopsy revealed bruises on
the victim’s right cheek, left leg and chest, which an
associate medical examiner from the [O]ffice of the
[C]hief [M]edical [E]xaminer determined occurred
shortly before the victim’s death. The injuries were
inconsistent with an automobile accident, a twelve inch
fall into a bathtub, cardiopulmonary resuscitation or
bumping into a fire door, which were explanations
offered by the defendant. The victim also suffered sig-
nificant internal injuries, namely, multiple fresh cranial
hemorrhages, a broken rib and a lacerated liver that
caused three quarters of his blood to enter his abdomi-
nal cavity. According to the associate medical examiner,
the victim’s liver was lacerated by blunt trauma that
occurred within [one] hour of death and was the cause
of death.
‘‘After the victim died, the defendant was taken to
the police station, where he gave a statement and
repeatedly denied injuring the victim. The police
inspected the apartment where the defendant and vic-
tim were alone prior to the victim’s death. They found
vomit and feces on the victim’s clothes, a bedspread
and the floor. The victim’s blood was found on the
bathroom door. When he was informed of the autopsy
results, the defendant insisted that the doctors were
wrong, a position he maintained throughout trial.’’ State
v. Tinsley, 59 Conn. App. 4, 6–7, 755 A.2d 368, cert.
denied, 254 Conn. 938, 761 A.2d 765 (2000).
The state charged the defendant with capital felony
in violation of General Statutes (Rev. 1995) § 53a-54b
(9), as amended by No. 95-16 of the 1995 Public Acts,3
and risk of injury to a child in violation of § 53-21. The
jury found the defendant guilty of the lesser included
offense of manslaughter in the first degree in violation
of § 53a-55 (a) (1)4 and risk of injury to a child. On
February 6, 1998, the court sentenced the defendant to
twenty years of incarceration on the manslaughter
count and ten years of incarceration on the risk of injury
count with the sentences to run consecutively.
On August 14, 2017, the self-represented defendant
filed a motion to correct an illegal sentence pursuant
to Practice Book § 43-22.5 The defendant alleged that
his sentence violated his federal and state constitutional
rights to be free from double jeopardy. On March 8,
2018, the defendant, now represented by counsel, filed
a second motion to correct an illegal sentence and an
accompanying memorandum of law, reasserting his
double jeopardy claim. The state filed its memorandum
in opposition on March 26, 2018, and the court, Schu-
man, J., held a hearing on April 12, 2018. Pursuant to
the court’s order, the parties submitted supplemental
memoranda.
On May 15, 2018, the court issued its memorandum
of decision denying the defendant’s motion to correct
an illegal sentence. At the outset of its analysis, the
court observed that the double jeopardy clause protects
against multiple punishments for the same offense. It
then stated: ‘‘In determining whether a defendant has
been placed in double jeopardy under the multiple pun-
ishments prong, the court applies 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.)
With respect to the first step of the analysis, the
court noted that the homicide and risk of injury charges
involved the same time, place and victim. The homicide
count charged that the victim’s death had resulted from
blunt force trauma to the abdomen, whereas the risk
of injury count alleged that the defendant had inflicted
multiple traumas to the face, head, chest and abdomen,
which caused the laceration of the liver, internal bleed-
ing in the abdomen, a fracture of the tenth rib, and
multiple contusions of the face, head, chest and abdo-
men. The court also observed that the laceration of
the liver occurred within one hour of death while the
bruises on the victim’s cheek, leg and chest occurred
shortly before death. ‘‘While it is possible that all of
these injuries occurred at the same time, it is not certain.
Based on the Appellate Court’s recital of the facts, it
is also possible that the bruising to the cheek, leg, and
chest took place at a different time in the morning from
the lethal trauma to the liver. It is simply speculative
to conclude, based on the existing record, that . . .
the victim here incurred injuries in one continuous,
uninterrupted assault occurring in a matter of a few
minutes.’’ (Citation omitted; internal quotation marks
omitted.)
As an alternative and additional analysis, the court
also considered whether the crimes of manslaughter in
the first degree and risk of injury constituted the same
offense. The court specifically identified the issue as
‘‘whether risk of injury as charged was a lesser included
offense of manslaughter in the first degree as charged.
Stated differently, the issue is whether it was possible to
commit manslaughter in the first degree in the manner
charged without necessarily committing risk of injury
as charged.’’ The court concluded that such a possibility
existed. It explained that the jury could have found that
the defendant violated the risk of injury statute as a
result of striking the victim in the face, leg or chest.
For these reasons, the court denied the defendant’s
motion to correct an illegal sentence.
On June 4, 2018, the defendant filed a motion to
reargue and for reconsideration. The defendant
claimed, inter alia, that the parties should be afforded
the opportunity to address (1) our Supreme Court’s
decision in State v. Porter, 328 Conn. 648, 182 A.3d 625(2018),6 which had been released after the hearing on
the defendant’s motion to correct an illegal sentence
and (2) the evidence underlying the recital of facts by
this court in the defendant’s direct appeal. See State v.
Tinsley, supra, 59 Conn. App. 6–7. On June 19, 2018,
the court granted the defendant’s motion to reargue.
The court held a hearing on July 5, 2018. After hearing
from the parties, the court denied the relief requested
by the defendant. It maintained its conclusion that the
defendant had failed to meet his burden of demonstra-
ting that both offenses occurred during the same trans-
action. Specifically, the court stated: ‘‘It still seems to
me entirely possible that the fatal blows to the ribs,
liver, and abdomen could have occurred from a separate
blow that was interrupted perhaps by a minute or so
before or after trauma was inflicted to the child’s face
and head, which is also alleged in the information. And
in that situation it would not clearly be one continuous
uninterrupted assault. I acknowledge the defense argu-
ment that there’s no way to actually parse through all
this at this time twenty years later, but ultimately it’s
the defendant’s burden and if we can’t do that then
the defendant has not met his burden.’’ This appeal
followed. Additional facts will be set forth as necessary.
On appeal, the defendant claims that the court
improperly denied his motion to correct an illegal sen-
tence. Specifically, he argues that his conviction and
punishment for manslaughter in the first degree and
risk of injury arose from the same transaction and that
risk of injury is a lesser included offense of manslaugh-
ter in the first degree, as charged in this matter, in
violation of his right to be free from double jeopardy.
The state disagrees with both of these arguments. We
conclude that under the facts and circumstances of
the present case, the defendant’s right to be free from
double jeopardy was violated. Accordingly, the trial
court improperly denied the defendant’s motion to cor-
rect an illegal sentence.
We begin by reviewing the relevant legal principles
pertaining to a motion to correct an illegal sentence, the
applicable standard of review and our double jeopardy
jurisprudence. A motion to correct an illegal sentence
filed pursuant to Practice Book § 43-22 ‘‘constitutes a
narrow exception to the general rule that, once a defen-
dant’s sentence has begun, the authority of the sentenc-
ing court to modify that sentence terminates.’’ (Internal
quotation marks omitted.) State v. Brown, 192 Conn.
App. 147, 151, 217 A.3d 690 (2019); see also State v.
Evans, 329 Conn. 770, 778–79, 189 A.3d 1184 (2018),
cert. denied, U.S. , 139 S. Ct. 1304, 203 L. Ed.
2d 425 (2019); see generally State v. Cator, 256 Conn.
785, 803–804, 781 A.2d 285 (2001) (both trial and appel-
late courts have power to correct illegal sentence at
any time). A sentence that violates a defendant’s right
against double jeopardy falls within the recognized defi-
nition of an illegal sentence. See State v. Parker, 295
Conn. 825, 839, 992 A.2d 1103 (2010); see also State v.
Cator, supra, 804 (sentence that punished defendant
twice for same action violated prohibition against dou-
ble jeopardy and, thus, was illegal and trial court had
jurisdiction to correct sentence pursuant to § 43-22);
State v. Adams, 186 Conn. App. 84, 87, 198 A.3d 691(2018) (alleged double jeopardy violation constituted
proper basis for motion to correct illegal sentence).
Next, we set forth our standard of review. ‘‘Ordinarily,
a claim that the trial court improperly denied a defen-
dant’s motion to correct an illegal sentence is reviewed
pursuant to the abuse of discretion standard. . . . A
double jeopardy claim, however, presents a question
of law, over which our review is plenary.’’ (Internal
quotation marks omitted.) State v. Bennett, 187 Conn.
App. 847, 851, 204 A.3d 49, cert. denied, 331 Conn. 924,
206 A.3d 765 (2019); see also State v. Wade, 178 Conn.
App. 459, 466, 175 A.3d 1284 (2017), cert. denied, 327
Conn. 1002, 176 A.3d 1194 (2018).
We turn to the relevant principles regarding the pro-
tection against double jeopardy. The double jeopardy
clause of the fifth amendment7 prohibits both multiple
trials for the same offense and multiple punishments
for the same offense in a single trial. See State v. Ben-
nett, supra, 187 Conn. App. 852; see also State v. Chi-
cano, 216 Conn. 699, 706, 584 A.2d 425 (1990) (overruled
in part on other grounds by State v. Polanco, 308 Conn.
242, 261, 61 A.3d 1054 (2013)), cert. denied, 501 U.S.
1254, 111 S. Ct. 2898, 115 L. Ed. 2d 162 (1991). The
present case concerns the latter prohibition. Simply
stated, ‘‘[w]ith respect to cumulative sentences imposed
in a single trial, the [d]ouble [j]eopardy [c]lause does
no more than prevent the sentencing court from pre-
scribing greater punishment than the legislature
intended. Missouri v. Hunter, 459 U.S. 359, 366, 103 S.
Ct. 673, 74 L. Ed. 2d 535 (1983) . . . .’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Fergu-
son, 260 Conn. 339, 361, 796 A.2d 1118 (2002).
‘‘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.’’ (Internal quotation marks
omitted.) State v. Bennett, supra, 187 Conn. App. 852.
‘‘At step one, it is not uncommon that we look to the
evidence at trial and to the state’s theory of the case
. . . in addition to the information against the defen-
dant, as amplified by the bill of particulars. . . . If it
is determined that the charges arise out of the same
act or transaction, then the court proceeds to step two,
where it must be determined whether the charged
crimes are the same offense. . . . At this second step,
we [t]raditionally . . . have applied the Blockburger
test [see Blockburger v. United States, 284 U.S. 299, 52
S. Ct. 180, 76 L. Ed. 306 (1932)] 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 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. . . .
In applying the Blockburger test, we look only to the
information and bill of particulars—as opposed to the
evidence presented at trial . . . . Because double jeop-
ardy attaches only if both steps are satisfied . . . a
determination that the offenses did not stem from the
same act or transaction renders analysis under the sec-
ond step unnecessary.’’ (Footnote omitted; internal quo-
tation marks omitted.) State v. Jarmon, 195 Conn. App.
262, 282–83, 224 A.3d 163, cert. denied, 334 Conn. 925,
223 A.3d 379 (2020); see also State v. Porter, supra, 328
Conn. 662.
For purposes of double jeopardy analysis, a greater
included offense and a lesser included offense consti-
tute the same offense. See, e.g., State v. Miranda, 260
Conn. 93, 125, 794 A.2d 506, cert. denied, 537 U.S. 902,
123 S. Ct. 224, 154 L. Ed. 2d 175 (2002); see also State
v. Goldson, 178 Conn. 422, 425, 423 A.2d 114 (1979)
(‘‘[i]t is clear, as Brown v. Ohio, [432 U.S. 161, 168, 97
S. Ct. 2221, 53 L. Ed. 2d 187 (1977)] holds, that if the
two counts stand in the relationship of greater and
lesser included offenses, then [t]he greater offense is
. . . by definition the same for purposes of double jeop-
ardy as any lesser offense included in it’’ (internal quota-
tion marks omitted)). Simply stated, ‘‘[t]he double jeop-
ardy prohibition . . . is violated if one crime is a lesser
included offense of the other.’’ State v. Carlos P., 171
Conn. App. 530, 537–38, 157 A.3d 723, cert. denied, 325
Conn. 912, 158 A.3d 321 (2017).
Where the defendant claims that his or her conviction
includes a lesser included offense, we employ a differ-
ent analysis than the traditional Blockburger compari-
son of the elements of each offense. Id., 537–39; see,
e.g., State v. Greco, 216 Conn. 282, 292, 579 A.2d 84(1990); State v. Raymond, 30 Conn. App. 606, 610–11,
621 A.2d 755 (1993). ‘‘The test for determining whether
one violation is a lesser included offense in another
violation is whether it is possible to commit the greater
offense, in the manner described in the information or
bill of particulars, without having first committed the
lesser. If it is possible, then the lesser violation is not
an included crime. . . . In conducting this inquiry, we
look only to the relevant statutes, the information, and
the bill of particulars, not to the evidence presented
at trial.’’ (Citation omitted; internal quotation marks
omitted.) State v. Miranda, supra, 260 Conn. 125; see
also State v. Greco, supra, 216 Conn. 291; State v. Gold-
son, supra, 178 Conn. 426; State v. Bumgarner-Ramos,
187 Conn. App. 725, 749, 203 A.3d 619, cert. denied, 331
Conn. 910, 203 A.3d 570 (2019); State v. Flynn, 14 Conn.
App. 10, 17–18, 539 A.2d 1005, cert. denied, 488 U.S.
891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988). Guided by
these principles, we turn to the specifics of the pres-
ent case.
The following additional facts will facilitate our analy-
sis of the defendant’s appeal. In count one of the long
form information dated November 24, 1997, the state
charged the defendant with ‘‘capital felony, in violation
of . . . § 53a-54b (9)’’ and alleged that ‘‘on or about
the morning of December 8, 1996 . . . the defendant,
with the intent to cause the death of [the victim] caused
the death of [the victim] who was then fifteen (15)
months of age, by blunt trauma to the abdomen.’’ In
count two of the information, the state charged the
defendant with ‘‘violation of . . . § 53-21,’’ risk of
injury to a child, and alleged that ‘‘on or about the
morning of December 8, 1996 . . . the defendant did
an act likely to impair the health of [the victim] who was
then fifteen (15) months of age, by inflicting multiple
trauma to his face, head, chest, and abdomen and
thereby causing: laceration of the liver, internal bleed-
ing in the abdomen, fracture of the tenth right rib, and
multiple contusions of the face, head, chest, and
abdomen.’’
On December 11, 1997, the court, Barry, J., instructed
the jury following the presentation of evidence and
closing arguments in the defendant’s criminal trial. The
court charged the jury regarding the crime of capital
felony. It then instructed the jury on the crime of man-
slaughter in the first degree in violation of § 53a-55 (a)
(1),8 as well as other lesser included offenses of capital
felony.9 The jury found the defendant guilty of man-
slaughter in the first degree, as a lesser included offense
of capital felony, and risk of injury to a child. The court
sentenced the defendant to twenty years of incarcera-
tion on the manslaughter count and a ten year consecu-
tive sentence on the risk of injury count.
Step one of our double jeopardy analysis involves
the determination of whether the two offenses arose
from a single act or transaction. ‘‘Under step one, [t]he
same transaction . . . may constitute separate and dis-
tinct crimes where it is susceptible of separation into
parts, each of which 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 pun-
ishable by the [statute]. . . . When determining
whether two charges arose from the same act or trans-
action, our Supreme Court has asked whether a jury
reasonably could have found a separate factual basis
for each offense charged.’’ (Emphasis omitted; internal
quotation marks omitted.) State v. Jarmon, supra, 195
Conn. App. 284; see also State v. Jerrell R., 187 Conn.
App. 537, 545, 202 A.3d 1044, cert. denied, 331 Conn.
918, 204 A.3d 1160 (2019).
Our Supreme Court recently addressed step one of
the double jeopardy analysis in State v. Porter, supra,
328 Conn. 648. Specifically, it considered ‘‘whether a
court may look to the evidence presented at trial when
determining if a defendant’s conviction violated the con-
stitutional prohibition against double jeopardy.’’ Id.,
650. In Porter, the defendant had argued that this court
improperly considered the evidence presented at trial
in determining whether a double jeopardy violation had
occurred; the state countered that consideration of the
evidence during step one was proper. Id., 650–51.
Briefly addressing step two of the double jeopardy
analysis, our Supreme Court emphasized that ‘‘the
Blockburger test . . . is a technical one and examines
only the statutes, charging instruments, and bill of par-
ticulars as opposed to the evidence presented at trial.’’
(Internal quotation marks omitted.) Id., 656. Our
Supreme Court, after reviewing the relevant case law,
noted that this prohibition against the review of the
evidence applied only to step two of the double jeopardy
analysis. Id., 658. With respect to step one, it emphasized
that that it routinely had ‘‘looked beyond the charging
documents [and considered the evidence] to determine
whether the offenses arose from a single act or transac-
tion.’’ Id., 659. Further, it explicitly stated that, ‘‘[a]t step
one, it is not uncommon that we look to the evidence
at trial and to the state’s theory of the case . . . .’’
(Internal quotation marks omitted.) Id., 662. Thus, in
the present case, we must consider the charging docu-
ments, the evidence set forth during the trial, the state’s
theory of the case and the court’s jury instructions, to
determine whether the offenses of manslaughter in the
first degree and risk of injury arose from the same act
or transaction.
As we have noted previously, the state charged the
defendant in a long form information, dated November
24, 1997, with capital felony and risk of injury. The state
alleged that both of these crimes occurred ‘‘on or about
the morning of December 8, 1996 . . . .’’ Additionally,
the state asserted that these crimes occurred at the
same location and were perpetrated on the same victim.
During the trial, the state presented the testimony of
Arkady Katsnelson, an associate medical examiner who
had performed the autopsy on the victim. During his
external examination, Katsnelson noted multiples con-
tusions, or bruises, on the victim’s face and chest, and
contusions and abrasions on the abdomen, arms, legs
and back of the body.10 There was no evidence that
these injuries had begun to heal. Katsnelson opined, to
a reasonable degree of medical certainty, that these
wounds were recent and had occurred not long before
the death of the victim.
Katsnelson also discovered multiple areas of hemor-
rhage under the skin of the scalp and noted that these
separate injuries were located on the right side and the
back of the victim’s head. He described these wounds
as ‘‘fresh’’ and that they had occurred not long before
death. As he continued the internal examination, Kats-
nelson discovered a substantial amount of the victim’s
blood in his abdominal cavity where there should be
none, as well as a fractured rib and a ‘‘big laceration
of the liver.’’ The blood in the victim’s abdominal cavity
remained in a liquid state. Katsnelson noted the absence
of any clotting, which indicated that the victim had not
survived long after receiving the liver injury. Katsnelson
further determined that the laceration to the liver was
the cause of death11 and that the victim’s other injuries
were not fatal. Katsnelson concluded that the victim
could have survived only ‘‘a short period of time, which
could be several minutes after he received the lacera-
tion of the liver.’’
The prosecutor asked Katsnelson if there was any
indication that any of the injuries sustained by the vic-
tim had occurred at a different time, and he replied:
‘‘No, all these injuries I found during my examination,
I believe they [were] inflicted in the same short period
of time. They are not—I did not find any evidence of
healing of these injuries, and I believe they were all
inflicted within one short period of time.’’ (Emphasis
added.) He then defined ‘‘a short period time’’ as ‘‘within
probably minutes.’’
The prosecutor also called as a witness Betty Spivack,
a physician trained in pediatric critical care. She indi-
cated that bruising does not occur when an individual
is in severe shock or cardiac arrest due to the fact
that, in such circumstances, blood is not being pumped
through the body and does not flow out of the blood
vessels. Spivack agreed that the injury to the victim’s
liver was the sole cause of cardiac arrest12 in this case.
She classified the victim’s injuries into two groups:
those that had occurred before, or no more than one
to two minutes after, the liver laceration, and those that
had happened after the liver laceration and resulting
diminished blood flow to the skin, shock and cardiac
arrest. Spivack testified that all of the bruises had
occurred in the first group. She further stated that the
only injures that had occurred in the second group were
the three curved abrasions to the victim’s left groin,
and fractures to the front teeth, a very common resusci-
tation injury.
After the conclusion of the evidence, the prosecutor
presented her closing argument to the jury. In reference
to Katsnelson’s testimony, the prosecutor referred to
the victim’s injuries to the head, face, chest, abdomen,
back, groin, leg and arm. The prosecutor specifically
argued: ‘‘All of those were inflicted [Katsnelson] said
in the same short period of time, a matter of minutes.
All the injuries were recent fresh injuries.’’ (Emphasis
added.) After discussing Spivak’s testimony, the prose-
cutor indicated to the jury that ‘‘[a]ll the bruises and
particularly the larger ones on the face, the back, the
upper abdomen preceded the liver laceration or were
within two minutes of it according to the medical testi-
mony.’’ In addressing the intent element for the charge
of capital felony, the prosecutor stated: ‘‘We’ve got—
besides that blow [that caused the liver laceration]
we’ve got the multiplicity and the nature of the injuries.
There were repeated blows. There’s only one fatal one.
This child was battered over and over and over again.
We have the forceful upward kick or punch which lacer-
ated the liver, caused internal bleeding and shock
within three minutes and death not long after that, but
there were many blows. The remainder of the injuries
were inflicted in the same short period of time. That’s
what the medical evidence is, multiple blows to the top
of the head, the back of the head, the side of the head,
the face, the chest, the abdomen, multiple puncture
wounds to the groin, bruises to the leg and arm. . . .
Finally, I would submit you may find evidence of the
defendant’s intent to kill in the fact that he didn’t stop
hitting [the victim] until he killed him.’’ (Emphasis
added.) The prosecutor ended her initial closing argu-
ment with the following statement: ‘‘There’s only one
logical conclusion, that it was the defendant who killed
[the victim] by striking him many times and continu-
ing to strike him until he killed him with some object or
a punch or a kick with extensive force in the abdomen.’’
(Emphasis added.)
After considering the long form information, the evi-
dence presented at the criminal trial and the state’s
theory of the case, as evidenced by its closing argument,
we conclude that the court erred in determining that
the manslaughter in the first degree and the risk of
injury offenses did not arise from the same act or trans-
action.
We note that our Supreme Court has held that where
an information, as amplified by a bill of particulars,13
charged a defendant with two narcotics offenses that
had occurred at the same time and same place and
involved the same narcotic, then those offenses arose
from the same act or transaction. See State v. Goldson,
supra, 178 Conn. 424–25; see also State v. Nelson, 118
Conn. App. 831, 853, 986 A.2d 311 (two kidnapping
charges arose from same act or transaction where oper-
ative information alleged that crimes were committed
on same date, in same location and against same vic-
tim), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010);
State v. Crudup, 81 Conn. App. 248, 252–53, 838 A.2d
1053 (first prong of double jeopardy analysis met where
information charged that both crimes occurred during
afternoon hours of same date), cert. denied, 268 Conn.
913, 845 A.2d 415 (2004); State v. Davis, 13 Conn. App.
667, 671, 539 A.2d 150 (1988) (three offenses arose from
same act or transaction where information alleged that
all occurred at same time, date and location); cf. State
v. Miranda, supra, 260 Conn. 120–24 (where defendant
was charged with two counts of assault in first degree
during same four month time period with one count
charging skull fracture and other rectal tears as serious
physical injury, two offenses did not arise from same
transaction where medical examination revealed that
rectal tearing was ‘‘fresh’’ wound and skull fracture was
seven to ten days old).
Additionally, the evidence produced at trial supports
the conclusion that the injuries to the victim occurred
during the same act or transaction. See State v. Nixon,
92 Conn. App. 586, 591, 886 A.2d 475 (2005). The medical
evidence introduced by the state indicated that the vic-
tim’s abrasions and contusions occurred in the period
of time just prior to death and there was no indication
of any healing. Specifically, Katsnelson identified the
bruises under the scalp and the lack of clotted blood
in the abdominal cavity as indicators that the victim
had not survived long after receiving these injuries. He
also testified that death occurred not long after the liver
laceration. Indeed, he specifically stated that ‘‘all [of]
these injuries which I found during my examination, I
believe they [were] inflicted in the same short period
of time. They are not—I did not find any evidence of
healing of these injuries, and I believe they were all
inflicted within one short period of time . . . [and]
I mean within probably minutes.’’ (Emphasis added.)
Finally, we consider the state’s closing argument to
the jury and its theory of the case. The prosecutor
contended that Katsnelson had testified that the bruises
and abrasions found on the victim’s body were ‘‘fresh’’
injuries and had been inflicted ‘‘in the same short period
of time, a matter of minutes.’’ She further argued that
the defendant had inflicted multiple blows to the head,
chest and abdomen of the victim. The prosecutor subse-
quently emphasized the multiple blows that had
occurred in a short period of time. The state relied on
this evidence as proof of the defendant’s intent to kill
the victim. The fact that the jury did not find such intent
does not change the fact that the state relied on all of
the blows to the victim as showing how the defendant
acted in a single, continuous attack. Defense counsel,
during his closing argument, commented on the state’s
insistence that all of the victim’s injuries had occurred
‘‘within a short period of time, all happened at once
. . . .’’ After considering the state’s closing argument;
see State v. Porter, supra, 328 Conn. 663; as well as the
information and the evidence presented,14 we conclude
that the homicide and risk of injury offenses in this
case arose from the same transaction.15 Accordingly,
we proceed to step two of the double jeopardy analysis.
Step two of the double jeopardy analysis involves
the determination of whether the homicide and risk of
injury offenses constituted the same offense. We begin
our analysis with our recent decision in State v. Bumg-
arner-Ramos, supra, 187 Conn. App. 725, in which we
addressed the defendant’s claim that his conviction of
manslaughter in the first degree and assault in the first
degree violated the constitutional guarantee against
double jeopardy. In resolving this issue, we set forth
the applicable test. ‘‘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 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. . . .
The test used to determine whether one crime is a lesser
offense included within another crime is whether it
is not possible to commit the greater offense, in the
manner described in the information . . . without
having first committed the lesser . . . . This . . .
test is satisfied if the lesser offense does not require
any element which is not needed to commit the greater
offense. . . . Therefore, a lesser included offense of a
greater offense exists if a finding of guilt of the greater
offense necessarily involves a finding of guilt of the
lesser offense.’’ (Citation omitted; emphasis added;
internal quotation marks omitted.) Id., 748; see gener-
ally State v. Brown, 163 Conn. 52, 61–62, 301 A.2d 547(1972).16 During this step of the double jeopardy analy-
sis, we consider only the statutes, charging documents
and any bill of particulars, rather than the evidence
presented at trial.17 State v. Bumgarner-Ramos,
supra, 749.
In the present case, the defendant was convicted of
manslaughter in the first degree and risk of injury to a
child. Each of those criminal statutes contains an ele-
ment the other does not: Manslaughter in the first
degree provides that the offender cause the death of
the victim and risk of injury to a child provides that
the victim be under the age of sixteen years old. The
defendant contends, however, that one cannot cause
the death of another in the manner described in the
information, without first inflicting trauma to the vic-
tim’s body, which is an act likely to impair the health
of the minor victim. Accordingly, he maintains that,
under the circumstances of this case, risk of injury to
a child is a lesser included offense and, thus, the same
offense for purposes of double jeopardy, as manslaugh-
ter in the first degree. We agree with the defendant.
As we have recited previously, the state charged the
defendant with causing the death of the fifteen month
old victim by blunt trauma to the abdomen. With respect
to the risk of injury count, the state alleged that the
defendant impaired the health of the fifteen month old
victim by inflicting multiple blows to the victim’s face,
head, chest and abdomen, and that he caused the lacera-
tion of the victim’s liver, internal bleeding in the victim’s
abdomen, a fracture to the victim’s rib and multiple
contusions of the face, head, chest and abdomen.
Focusing our analysis on the theoretical possibilities,
rather than the evidence, we cannot discern a scenario
in which the defendant could have caused the death of
the fifteen month old victim by blunt trauma to the
abdomen without also impairing the health of the victim
by inflicting trauma to his abdomen. Stated differently,
it was not possible for the defendant to commit the
homicide offense, in the manner described in the infor-
mation, without first having committed risk of injury
to a child. See State v. Crudup, supra, 81 Conn. App.
253; see, e.g., State v. Amaral, 179 Conn. 239, 243, 425
A.2d 1293 (1979) (defendant could not commit greater
offense of possession of heroin with intent to sell by
person who is not drug-dependent without, at same
time, committing lesser offenses of possession of heroin
with intent to sell and simple possession of heroin);
State v. Goldson, supra, 178 Conn. 427 (violation of
double jeopardy where defendant convicted of trans-
portation of heroin and possession of heroin); State
v. Bumgarner-Ramos, supra, 187 Conn. App. 749–51
(concluding that defendant’s conviction of both assault
in first degree and manslaughter in first degree violated
constitutional guarantee against double jeopardy
because defendant could not have caused victim’s death
in manner charged without first having caused victim
serious physical injury); State v. Arokium, 143 Conn.
App. 419, 434–35, 71 A.3d 569 (violation of double jeop-
ardy where defendant convicted of greater offense of
possession of narcotics with intent to sell and lesser
included offense of possession of narcotics), cert.
denied, 310 Conn. 904, 75 A.3d 31 (2013); State v. Cooke,
42 Conn. App. 790, 802–803, 682 A.2d 513 (1996)
(because elements of forgery in third degree must be
proven before defendant can be convicted of forgery
in second degree, it is lesser included offense, and con-
viction of both violated double jeopardy clause); State
v. Flynn, supra, 14 Conn. App. 19 (theoretically impossi-
ble to have situation where defendant, with intent to
prevent performance of duties of peace officer, either
causes physical injury to officer or throws or hurls
bottle or other object at officer capable of causing harm
without at same time obstructing, hindering, resisting or
endangering that officer in performance of his duties).
In light of the cases cited herein, the defendant has
demonstrated that the homicide and risk of injury
offenses arose from the same act or transaction and
that the risk of injury offense is a lesser included offense
within the homicide offense, as charged in the informa-
tion in this case.
Finally, we must consider whether the defendant’s
right to be free from double jeopardy was not violated
because our legislature authorized multiple punish-
ments. ‘‘Where . . . a legislature specifically autho-
rizes cumulative punishment under two statutes,
regardless of whether those two statutes proscribe the
same conduct under Blockburger, a court’s task of statu-
tory construction is at an end and the prosecutor may
seek and the trial court or jury may impose cumulative
punishment under such statutes in a single trial.’’ (Inter-
nal quotation marks omitted.) State v. Gonzalez, 302
Conn. 287, 317, 25 A.3d 648 (2011). However, ‘‘[w]here
there is no clear indication of a contrary legislative
intent . . . the Blockburger presumption controls.’’
(Internal quotation marks omitted.) State v. Bumg-
arner-Ramos, supra, 187 Conn. App. 751 n.19. In his
memorandum of law in support of his motion to correct
an illegal sentence, the defendant argued that there was
no such intent evidenced by our legislature that would
permit multiple punishments in this case. In his appel-
late brief, the defendant iterated this argument. This
state has not provided this court with any authority
that our legislature authorized separate penalties for
the defendant’s criminal offenses. In the absence of any
such authority that would support such a conclusion,
we defer to the Blockburger presumption and conclude
that, in this case, the defendant’s punishment cannot
withstand constitutional scrutiny. Id.; see also State v.
Flynn, supra, 14 Conn. App. 19 (‘‘[u]nless a clear inten-
tion to fix separate penalties for each [offense] involved
is expressed, the issue should be resolved in favor of
lenity and against turning a single transaction into multi-
ple offenses’’ (internal quotation marks omitted)).
We conclude that the defendant’s right to be free of
double jeopardy was violated in this case. Accordingly,
the trial court improperly denied his motion to correct
an illegal sentence.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when: (1) With intent to cause
serious physical injury to another person, he causes the death of such person
or of a third person . . . .’’
2
General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142 of
the 1995 Public Acts, provides in relevant part: ‘‘Any person who (1) wilfully
or unlawfully causes or permits any child under the age of sixteen years to
be placed in such a situation that the life or limb of such child is endangered,
the health of such child is likely to be injured or the morals of such child
are likely to be impaired, or does any act likely to impair the health or morals
of any such child . . . shall be guilty of a class C felony.’’ All references
to § 53-21 in this opinion are to the 1995 revision of the statute as amended
by No. 95-142 of the 1995 Public Acts.
3
General Statutes (Rev. to 1995) § 53a-54b, as amended by No. 95-16 of
the 1995 Public Acts, provides in relevant part: ‘‘A person is guilty of a
capital felony who is convicted of . . . (9) murder of a person under sixteen
years of age.’’ All references to § 53a-54b in this opinion are to the 1995
version of the statute, as amended by No. 95-16 of the 1995 Public Acts.
General Statutes § 53a-54a provides in relevant part that ‘‘[a] person is
guilty of murder when, with intent to cause the death of another person,
he causes the death of such person . . . .’’
4
The court also had instructed the jury on manslaughter in the first degree
in violation of General Statutes § 53a-55 (a) (3), manslaughter in the second
degree in violation of General Statutes § 53a-56 and criminally negligent
homicide in violation of General Statutes § 53a-58.
5
Practice Book § 43-22 provides: ‘‘The 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.’’
6
In State v. Porter, supra, 328 Conn. 661–62, our Supreme Court expressly
held that a reviewing court may consider the evidence and the state’s theory
of the case, along with the information, as amplified by a bill of particulars,
in determining whether two charges arose from the same act or transaction.
7
The fifth amendment to the United States constitution provides in rele-
vant part: ‘‘[N]or shall any person be subject for the same offense to be
twice put in jeopardy of life or limb . . . .’’ The fifth amendment is applicable
to the states through the fourteenth amendment’s due process clause. See
State v. Brown, 299 Conn. 640, 651, 11 A.3d 663 (2011). ‘‘Although the
Connecticut constitution does not include a specific double jeopardy provi-
sion, we have held that the due process and personal liberty guarantees
provided by article first, §§ 8 and 9, of the Connecticut constitution . . .
encompass the protection against double jeopardy. . . . The protection
afforded against double jeopardy under the Connecticut constitution mir-
rors, rather than exceeds, that which is provided by the constitution of the
United States.’’ (Footnotes omitted; internal quotation marks omitted.) Id.;
see also State v. Ferguson, 260 Conn. 339, 360, 796 A.2d 1118 (2002).
8
Specifically, the court instructed the jury as follows: ‘‘For purposes of
the record, § 53a-55 (a) (1) insofar as it is pertinent in this case provides
as follows: A person is guilty of manslaughter in the first degree when with
intent to cause serious physical injury to another person he causes the death
of such person. For you to find the defendant guilty of this charge the state
must prove the following elements beyond a reasonable doubt: First, that
the defendant caused the death of [the victim] and second that the defendant
intended to cause serious physical injury to [the victim].
‘‘The term serious physical injury means a physical injury that creates
a substantial risk of death or that causes serious disfigurement, serious
impairment of health or serious loss and impairment of the function of
bodily organs. You will note that the basis of the charge under this statute
is not that the defendant intended to kill but that he intended to inflict
serious physical injury.’’
9
See footnote 4 of this opinion.
10
Katsnelson explained that a contusion or bruise ‘‘is an injury which is
inflicted with a blunt object, and usually, a bruise, it is an accumulation of
blood under the skin. When some kind of a hard object, a blunt object hit
the skin, there are vessels—blood vessels under the skin, and the blood
vessels will rupture due to the trauma, and they will bleed under the skin,
and the skin will appear bruised.’’ He also defined an ‘‘abrasion’’ as scraping
of the upper layer of skin.
11
Katsnelson later explained that the laceration to the liver resulted from
blunt trauma and caused extensive bleeding into the abdominal cavity,
resulting in the victim’s death.
12
Spivack also opined that the injury to the victim’s liver resulted from
either an uppercut type punch to the upper part of the belly, or an upward
kick, as opposed to a stomp. She also indicated that after the laceration to
the liver, the victim initially would have lost 80 to 100 cubic centimeters of
blood per minute into the abdominal cavity and gone into shock within two
to four minutes. While the rate of blood loss would have slowed down,
cardiac arrest would occur a few minutes thereafter. Spivack defined cardiac
arrest as ‘‘the situation when the heart no longer pumps, when there is no
pulse. If you were feeling for a pulse, you wouldn’t find one. If you were
listening, you wouldn’t hear one. . . . The heart has ceased to pump and
is still.’’
13
The defendant did not file a motion for a bill of particulars in this case.
14
We note that the state acknowledged that the evidence and theory of
the case advanced by the trial prosecutor indicated that the two offenses
arose from the same act or transaction. Specifically, the state argued the
following in its June 11, 2018 opposition to the defendant’s motion to reargue
and/or for reconsideration: ‘‘The state does not challenge that the injuries
that formed the basis of both the capital felony charge/manslaughter in
the first degree conviction and the risk of injury count happened in the
same transaction. In fact, it appears that was the trial prosecutor’s theory
of the case. However, as this court noted in its ruling, the types of prohibited
acts here formed the basis for the two distinct charges. That is to say,
there were clearly acts alleged in the risk of injury count, attributed to the
defendant, that could not have possibly formed the basis of the injuries
which led to the child’s death and, therefore, could not have formed the
basis of the homicide charge.’’ (Emphasis added.)
15
We also note that the court’s instructions to the jury did not exclude
the fatal blow to the victim’s abdomen from the jury’s consideration of the
risk of injury charge. See State v. Benjamin, 86 Conn. App. 344, 352, 861
A.2d 524 (2004). The absence of such a limitation permitted the jury to find
the defendant guilty of both the risk of injury and the homicide charges on
the basis of the fatal blow to the abdomen that resulted in the lacerated
liver. See id.16
In view of this controlling precedent, we decline to adopt the reasoning
of the trial court, as set forth in its May 15, 2018 decision, that the phrase
‘‘in the manner described in the information’’ modifies both the greater and
the lesser included offense.
17
We iterate that the defendant did not file a motion for a bill of particulars
in this case. See footnote 13 of this opinion.