State v. Porter, 328 Conn. 648

Background

On May 24, 2010, Yale PD officers stopped Kenneth Porter; a struggle ensued during which Porter allegedly tried to kick and stab Officer Donnelly and put a bag of marijuana in his mouth to swallow.
Porter was tried by jury and convicted of (inter alia) assault of public safety personnel (§ 53a-167c) and interfering with an officer (§ 53a-167a); sentences produced an effective lengthy term.
The information alleged both offenses occurred at the same time and place; no bill of particulars was filed to allocate specific acts to specific counts.
On appeal Porter argued his convictions violated the Double Jeopardy Clause because both convictions arose from the same act/transaction and thus one should be vacated.
The Appellate Court reviewed trial evidence and concluded the assault and the interfering charge could be based on different acts (assault: kicking/stabbing; interfering: attempting to swallow marijuana) and affirmed.
The certified issue to this court was whether the Appellate Court properly consulted trial evidence rather than confining its review to the charging document when analyzing double jeopardy.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Porter)	Held
Whether a court may consider trial evidence when deciding if multiple convictions arose from the same act/transaction (step one)	Courts can look to evidence and the State’s theory at step one to determine whether charges stem from the same act/transaction	Goldson prohibits looking beyond charging documents; Appellate Court erred by using trial evidence	The court held that reviewing trial evidence at step one is proper; Appellate Court did not err
Whether Blockburger-type analysis (step two) may consider trial evidence	Blockburger/step two must be confined to statutes, informations, and bill of particulars	Trial evidence must inform whether offenses are the same for double jeopardy purposes	The court held Blockburger/step two cannot rely on trial evidence and is limited to statutory text, charging instruments, and bill of particulars
Whether Porter had adequate notice and was prejudiced by evidentiary review at step one	The information provided separate counts and notice; Porter could have sought bill of particulars; no unfair surprise	Reviewing evidence at step one undermines notice and defense strategy absent more specific pleadings	The court rejected Porter’s notice argument: information was adequate and Porter could have sought clarification; his strategic choice not to do so undermines the claim
Whether Brown v. Ohio or other precedent forbids the court’s approach	Brown addresses temporal severability and does not control the evidentiary question at step one	Brown precludes dividing a single prolonged crime into separate offenses simply by temporal slices	The court found Brown inapposite; this case involves distinct acts occurring at same time/place rather than temporal severability

Key Cases Cited

State v. Goldson, 178 Conn. 422 (examining double jeopardy and limiting step two analysis to charging documents)
State v. Schovanec, 326 Conn. 310 (clarifying that courts may look to trial evidence and state’s theory at step one but not at step two)
State v. Bernacki, 307 Conn. 1 (describing the two-step double jeopardy analysis)
Blockburger v. United States, 284 U.S. 299 (establishing the test for whether two statutory provisions define the same offense)
Brown v. Ohio, 432 U.S. 161 (addressing temporal severability and limits on splitting a single crime)
State v. Snook, 210 Conn. 244 (reviewing trial evidence at step one to determine separate acts)
State v. Kulmac, 230 Conn. 43 (using evidence to conclude multiple sexual assault counts arose from separate acts)
State v. Miranda, 260 Conn. 93 (illustrating evidence may inform step one but is prohibited at step two)