State v. Lonergan
566 A.2d 677
Conn.
1989
Check Treatment

Lead Opinion

Glass, J.

This appeal involves the issue of whether a charge brought against a defendant in a second prosecution constitutes, for double jeopardy purposes, the *76“same offense” for which the defendant has already been tried. In particular, the question presented is whether this court should make this determinaton simply by examining the statutory elements of the crimes, as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), or in addition, as suggested by In re Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L. Ed. 118 (1889), and its progeny, by examining the record to determine if the state will rely on the same evidence in the latter prosecution as it used in the former.

The Appellate Court’s opinion revealed the following undisputed facts and procedural history of the case. See State v. Lonergan, 16 Conn. App. 358, 548 A.2d 718 (1988). On May 22,1985, the defendant, John Lonergan, was driving a car on Airport Road in Hartford. At approximately 9 p.m., the defendant’s vehicle collided with a motorcycle operated by Scott Sementilli. The defendant was arrested and charged with operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a.1 2On the following day, Sementilli died as a result of the injuries he sustained during the collision. The defendant was subsequently arrested, and charged with manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b.2 The defendant pleaded not guilty to both charges.

*77The state elected to sever the two counts and proceeded to trial on the manslaughter count only. The manslaughter count was tried to the court and, at the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal. The trial court ruled that the state had failed to prove beyond a reasonable doubt that the defendant’s alleged intoxication had caused the death of Sementilli and, therefore, granted the defendant’s motion for judgment of acquittal. The state then sought to prosecute the defendant for operating a motor vehicle while under the influence of liquor. The defendant moved for a dismissal of the information on the ground that such a second prosecution was barred by the double jeopardy clause of the fifth amendment to the United States constitution and article first, § 9 of the Connecticut constitution. The trial court ruled that the defendant’s constitutional right against double jeopardy prevented the state from prosecuting him for operating a motor vehicle while under the influence. The state then appealed the trial court’s ruling to the Appellate Court.

The Appellate Court affirmed the trial court’s dismissal of the information charging the defendant with operating under the influence, and on February 22, 1989, this court granted the state’s petition for certification, limited to this issue: “Did the Appellate Court err in holding that the double jeopardy clause bars a prosecution on a charge of operating a motor vehicle while under the influence of intoxicating liquor after acquittal of a charge of manslaughter in the second *78degree with a motor vehicle while intoxicated arising out of the same incident?” The state argues that the Appellate Court erred in holding that the prosecution of the defendant on the charge of operating a motor vehicle while under the influence of liquor was barred by the double jeopardy clause. Specifically, the state contends that the Appellate Court misconstrued both federal and state law pertaining to what constitutes double jeopardy in successive prosecution cases. In addition, the state maintains that the precedent set by the Appellate Court’s decision is contrary to the purposes of the double jeopardy clause. We do not agree and, therefore, affirm the judgment of the Appellate Court.

I

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In addition, although the Connecticut constitution does not include a specific double jeopardy provision, this court “has long recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense.” State v. Langley, 156 Conn. 598, 600-601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969). Therefore, the due process guarantees provided by article first, § 9 of the Connecticut constitution have been held to encompass the protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962). The constitutional prohibition of double jeopardy has been held to consist of three separate *79guarantees: (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. [3] And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

The state argues that the Appellate Court erred in holding that manslaughter in the second degree with a motor vehicle while intoxicated was the “same offense” as operating a motor vehicle under the influence of liquor, and thus the defendant’s acquittal on the manslaughter count barred the state from prosecuting him on the count of operating while under the influence. The state asserts that the determination of whether the two crimes constituted the “same offense” should have been made solely by applying the test set forth in Blockburger v. United States, supra. In Blockburger, the United States Supreme Court considered whether several offenses charged in a single prosecution were sufficiently different to permit the imposition of multiple sentences without violating the double jeopardy clause. Id., 304. In so doing, the United States Supreme Court, emphasizing a comparison of the elements of the offenses, fashioned the following test: “The applicable rule is that where 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.” Id. This test is a technical one and examines only the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial. Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975); see State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982).

*80The United States Supreme Court, in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), extended the Blockburger test to apply to successive prosecution cases. In Brown, the state of Ohio had attempted to prosecute the defendant for the crime of auto theft after he had already been convicted of joyriding (taking or operating a motor vehicle without the owner’s consent). Id., 162-64. Applying the Block-burger test, the court concluded that since joyriding did not require proof of an element distinct from auto theft, it was a lesser included offense of auto theft, and therefore the two crimes constituted the “same offense.” Id., 168-69.

In applying the Blockburger test to the present case, the Appellate Court correctly concluded that under this test manslaughter with a motor vehicle while intoxicated was not the same offense as operating under the influence, as each offense required proof of a fact that the other did not. See State v. Lonergan, supra, 366. A conviction of manslaughter in the second degree with a motor vehicle while intoxicated requires proof of (1) operation of a motor vehicle (2) while intoxicated (3) which causes the death of another person. General Statutes § 53a-56b; see footnote 2, supra. A conviction of ■operating a motor vehicle while under the influence of intoxicating liquor or drugs, requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) while under the influence of intoxicating liquor or drugs. General Statutes § 14-227a; see footnote 1, supra. As the Appellate Court accurately noted, “[wjhile these two offenses share certain elements, each contains an element that the other does not. A conviction for operating a motor vehicle while under the influence of alcohol must be supported by proof that the defendant operated a motor vehicle on one of the locations specified in the statute; such a geographical element is not pertinent to a con*81viction for manslaughter with a motor vehicle while intoxicated. A conviction for manslaughter with a motor vehicle while intoxicated must be supported by proof that another person died as a result of the defendant’s intoxication; such a death element is not pertinent to a conviction for operating a motor vehicle while under the influence of alcohol. For these reasons, the two offenses are not the same under the Blockburger test.” State v. Lonergan, supra, 367.

The Appellate Court, however, did not end its double jeopardy analysis at this point. Rather, the Appellate Court concluded that the Blockburger test was not the only applicable test for determining whether successive prosecutions impermissibly involve the “same offense.” Invoking the United States Supreme Court decision of Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), the Appellate Court held: “[I]f the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.” State v. Loner-gan, supra, 368. The Appellate Court then concluded that, since the state was going to use the same evidence in its prosecution of the defendant for operating under the influence as it had used in its previous prosecution of the defendant for manslaughter, the second prosecution was barred as violative of the double jeopardy clause. Id., 378.

The state argues that the Appellate Court’s departure from a strict Blockburger analysis was contrary to United States Supreme Court precedent and, accordingly, reversible error. We do not agree. Although the United States Supreme Court in Brown v. Ohio, supra, extended the Blockburger test to apply to successive *82prosecution cases, the court did not state that the Block-burger test was the exclusive method for determining whether successive prosecutions involved the “same offense” in violation of the double jeopardy clause. In Brown, the court concluded that the two crimes of auto theft and joyriding failed to satisfy the Blockburger test and, therefore, were the same offense for double jeopardy purposes. Significantly, however, the Brown court did not end its inquiry at this point. Rather, the court proceeded to declare: “The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” Brown v. Ohio, supra, 166 n.6.

To support this assertion, the Brown court relied on Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), and In re Nielsen, supra, positing that these cases offer double jeopardy protection in successive prosecution cases beyond that of Blockburger. The court stated: “[I]n Ashe . . . where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery, the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims. And in In re Nielsen . . . the Court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a 2 1/2-year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period.

“In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a sin*83gle proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. . . . In Nielsen, conviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Court in both cases held the separate offenses to be the ‘same’ for [double jeopardy purposes].” Brown v. Ohio, supra, 166 n.6. In particular, the Nielsen court held: “[W]here . . . a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” In re Nielsen, supra, 188.

Additionally, in 1977, the United States Supreme Court in Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), relied on Nielsen to bar a second prosecution when the Blockburger test would have permitted it.3 Harris involved a prosecution for robbery after a conviction for felony murder in which the robbery was the underlying felony. Citing the Nielsen “incidents” language, and failing to cite Blockburger at all, the court, in a per curiam decision, held: “When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.” Harris v. Oklahoma, supra, 682.

*84Three years later, Harris was followed by a similar analysis and decision in Illinois v. Vitale, supra. In Vitale, the defendant was involved in an automobile accident that resulted in two deaths. He was convicted for the traffic offense of failing to reduce speed to avoid an accident. The state subsequently attempted to prosecute him for involuntary manslaughter, but the Illinois Supreme Court held that the two offenses were the same for double jeopardy purposes. Id., 412-15. The United States Supreme'Court then granted certiorari, and vacated the judgment of the Illinois Supreme Court and remanded, employing what was, in effect, a two-tiered analytical framework for determining whether the two offenses were the same. The court stated: “If, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the ‘same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio. In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma. ” Id., 419-20.

In short, the court in Vitale indicated that there are two ways of detecting double jeopardy violations in successive prosecution cases. First, the Blockburger test may categorize the two offenses as being the same. Second, an examination of the evidence may be undertaken to determine if the second offense requires proof that was already offered to prove the first offense. See G. Thomas, “The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition,” 71 *85Iowa L. Rev. 323, 350-52 (1986). The court made it clear, however, that this additional protection is not implicated by the “mere possibility” that the second prosecution will require proof of the same conduct as the first. Rather, the state must actually rely on the same conduct or concede that it will do so. Therefore, because of the Vitale court’s “doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State [would] rely on to prove manslaughter [were] still unknown,” the court vacated the judgment of the Illinois Supreme Court and remanded the case to that court. Illinois v. Vitale, supra, 421.

Thus, we are not persuaded that the Appellate Court contravened United States Supreme Court precedent in State v. Lonergan, supra. In fact, many other courts have interpreted United States Supreme Court precedent as granting such additional double jeopardy protection in successive prosecution cases. See, e.g., Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir. 1988); United States v. Ragins, 840 F.2d 1184 (4th Cir. 1988); Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied, 475 U.S. 1025, 106 S. Ct. 1223, 89 L. Ed. 2d 333 (1986); Jordan v. Virginia, 653 F.2d 870 (4th Cir. 1980); United States v. Black, 605 F. Sup. 1027 (D.C. 1985); United States v. Haggerty, 528 F. Sup. 1286 (D. Colo. 1981); State v. McGaughy, 505 So. 2d 399 (Ala. Crim. App. 1987); State v. Burroughs, 246 Ga. 393, 271 S.E.2d 629 (1980); State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert. denied, 484 U.S. 944,108 S. Ct. 331, 98 L. Ed. 2d 358 (1987); State v. Carter, 291 S.C. 385, 353 S.E.2d 875 (1987); State v. Grampus, 288 S.C. 395, 343 S.E.2d 26 (1986); May v. State, 726 S.W.2d 573 (Tex. Crim. App. 1987).

*86The state appropriately indicates, however, that a number of courts have construed United States Supreme Court precedent as suggesting a strict Block-burger analysis. See, e.g., United States v. Benton, 852 F.2d 1456 (6th Cir.), cert. denied sub nom. Campbell v. United States, 488 U.S. 993, 109 S. Ct. 555, 102 L. Ed. 2d 582 (1988); United States v. Genser, 710 F.2d 1426 (10th Cir. 1983); United States v. Brooklier, 637 F.2d 620 (9th Cir. 1980), cert. denied, 450 U.S. 980, 101 S. Ct. 1514, 67 L. Ed. 2d 815 (1981); State v. Seats, 131 Ariz. 89, 638 P.2d 1335 (1981) (en banc); Carlson v. State, 405 So. 2d 173 (Fla. 1981); People v. Jackson, 118 Ill. 2d 179, 514 N.E.2d 983 (1987), overruling People v. Zegart, 83 Ill. 2d 440, 415 N.E.2d 341 (1980), cert. denied, 452 U.S. 948, 101 S. Ct. 3094, 69 L. Ed. 2d 961 (1981). As the Appellate Court noted: “These courts appear to apply an unmodified Blockburger analysis to successive prosecution cases for basically three reasons. The first reason is the statement in Vitale that Block-burger is ‘the principal test for determining whether two offenses are the same for the purposes of barring successive prosecutions.’ Illinois v. Vitale, supra, 416; see, e.g., United States v. Brooklier, supra, 624.” State v. Lonergan, supra, 373. The second reason is a statement made by Justice Rehnquist in his dissenting opinion in Thigpen v. Roberts, 468 U.S. 27, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984).4 In his dissent, Justice Rehnquist made the following assertion regarding Vitale: “Tam reasonably sure that the Court did not intend to transmute the traditional double jeopardy analysis from an *87either “up or down” inquiry based on the evidence required to prove the statutory elements of a crime into a “substantial claim” inquiry based on the evidence the State introduced at trial.’ [Thigpen v. Roberts, supra, 36] (Rehnquist, J., dissenting). The third reason is the fact that three justices of the United States Supreme Court dissented to the denial of certiorari in a case where the Supreme Court of Illinois held that the double jeopardy clause had been violated because the state intended to use the same factual basis which supported the first conviction as the basis for the second conviction. People v. Zegart, supra, 445. The dissent emphasized that courts were required to look to the statutory elements of the first and second charges, not to the similarities of facts in the prosecution’s proof. Illinois v. Zegart, 452 U.S. 948, 951, 101 S. Ct. 3094, 69 L. Ed. 2d 961 (1981). (Burger, C. J., dissenting from denial of certiorari); see, e.g., People v. Jackson, supra.” State v. Lonergan, supra, 373-74.

Like the Appellate Court, we find these reasons unpersuasive. First, although the United States Supreme Court in Vitale labeled the Blockburger test the “principal test” for determining whether two offenses are the same for purposes of barring successive prosecutions, the court did not state that it was the test. In fact, the court has stated: “The Blockburger test is not the only standard for determining whether *88successive prosecutions impermissibly involve the same offense.” Brown v. Ohio, supra, 166 n.6.5 Second, Justice Rehnquist’s views regarding Vitale were set forth in dissent in Thigpen, and thus were not the expressed views of the majority of the court. Further, Justice Rehnquist’s assertion that Vitale mandated a strict application of Blockburger is refuted by the fact that the Vitale court remanded the case for further factual clarification regarding what the state’s proof was to be in the subsequent trial. If Justice Rehnquist were correct that only a Blockburger comparison of the statutory elements was prescribed by Vitale, then it would have made no difference what the state’s proof would have been in the subsequent trial. See G. Thomas, “The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition,” 71 Iowa L. Rev. 323, 352 (1986). Finally, “the impact of the fact that three justices dissented to the denial of certiorari in [Illinois v. Zegart, supra,] is ameliorated by the impact of the denial itself. Although denials of certiorari by the United States Supreme Court have no precedential authority, the denial in Zegart certainly does not refute the argument that a majority of the court considers the Blockburger test as modified by inquiry into the repetition of proof to be the proper double jeopardy approach in successive prosecution cases. See, e.g., People v. Gartner, 143 Ill. App. 3d 113, 491 N.E.2d 927 (1986), overruled by People v. Jackson, supra.” State v. Lonergan, supra, 375-76.

*89In sum, the Appellate Court’s extension of double jeopardy protection in successive prosecution cases in excess of that offered by Blockburger is not contrary to United States Supreme Court precedent, and therefore, does not constitute reversible error.

II

Next, the state argues that the Appellate Court’s failure to employ an unmodified Blockburger analysis was not in accord with this court’s prior decisions. The state concedes that the question of whether to provide increased double jeopardy protection beyond that offered by Blockburger is one of first impression for this court. The state argues, however, that this court has “given a number of indications that it does not subscribe to the Appellate Court’s interpretation of Vitale.” We disagree. The state supports its assertion by citing State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982), and State v. Truppi, 182 Conn. 449, 468, 438 A.2d 712 (1980), cert, denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981), for the proposition that in single prosecution cases this court has held that evidence should not be examined. These cases are inapposite, however, as they only refer to single prosecution cases, and there is no dispute that Vitale reaffirmed the application of the traditional Blockburger test in single prosecution cases.6 Therefore, this court’s prior decisions have not indicated what analytical framework should be utilized to determine whether suc*90cessive prosecutions involve the “same offense” in violation of the double jeopardy clause.7

Ill

Finally, the state contends that the Appellate Court’s establishment of double jeopardy protection in successive prosecution cases beyond that offered by Block-burger fails to serve the purposes of the double jeopardy clause. We disagree. The ideal embodied in the double jeopardy clause is of ancient origins,8 and its essential role in an individual’s protection against government tyranny cannot be doubted.9 Justice Black, in Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), wrote: “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State *91with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

In short, ‘ ‘ [sjuccessive-prosecution cases involve the core values of the Double Jeopardy Clause .... Where successive prosecutions are involved, the Double Jeopardy Clause protects the individual’s interest in not having to twice ‘run the gauntlet.’ ” People v. Robideau, 419 Mich. 458, 484, 355 N.W.2d 592 (1984). Thus, “[gjiven the multiplicity of offenses that may arise from a single criminal transaction, the formalistic Blockburger test, with its narrow focus on the technical elements of the offenses charged, is inadequate to vindicate this constitutional guarantee against retrial. The general test for determining whether successive prosecutions involve the ‘same offense’ is therefore a more flexible and pragmatic one, which focuses not on the formal elements of the two offenses but rather on the proof actually utilized to establish them.”10 United States v. Ragins, supra, 1188.

*92Accordingly, the Appellate Court’s conferral of expanded protection in successive prosecution cases clearly serves the purposes of the double jeopardy clause.

IV

In conclusion, we adopt the reasoning of the Appellate Court and hold that in successive prosecution cases “if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.” State v. Lonergan, supra, 368. Applying this test to the present case, we further hold that the prosecution of the defendant for operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a is barred, under the facts of this case, as violative of the double jeopardy clause. Given the record before us, and the fact that the state has so conceded, it is evident that the state intends to relitigate the issue of whether the defendant was operating while under the influence of liquor.* 11 The record clearly indi*93cates that in the second prosecution for operating while under the influence the state will rely on and seek to prove the same act of operating while intoxicated that was necessary to prove the manslaughter charge in the first prosecution. Thus, since the defendant has already been acquitted of conduct that is here shown to be a necessary element of the less serious crime for which he has been charged, his claim of double jeopardy is substantial under In re Nielsen, supra, and its progeny and, therefore, this second prosecution is barred on double jeopardy grounds.

The judgment of the Appellate Court is affirmed.

In this opinion Healey, Covello and Hull, Js., concurred.

Notes

At the time of the incident, General Statutes (Rev. to 1985) § 14-227a provided in pertinent part: “operation while under the influence of LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR. (A) OPERATION WHILE under the influence. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking areas for ten or more cars or on any school property while under the influence of intoxicating liquor or any drug or both.”

At the time of the incident, General Statutes (Rev. to 1985) § 53a-56b provided: “manslaughter in the second degree with a motor vehicle while intoxicated: class c felony, (a) a person is guilty of man*77slaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or both.

“(b) Manslaughter in the second degree with a motor vehicle while intoxicated is a class C felony and the court shall suspend the motor vehicle operator’ s license or nonresident operating privilege of any person found guilty under this section for one year.”

“The felony murder statute at issue in Harris [v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977),] did not on its face require proof of a robbery to establish a conviction, and the robbery statute likewise did not require proof of a murder, thus under a strict application of the Blockburger test the two statutes would not be held to proscribe the same offense.” Note, “Multiple Prosecutions and Punishments Under RICO: A Chip Off the Old ‘Blockburger,’ ” 52 Cinn. L. Rev. 467, 482 (1983).

“In Thigpen v. Roberts, 468 U.S. 27, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984), the defendant was initially charged with reckless driving, driving while his license was revoked, driving on the wrong side of the road, and driving while intoxicated, all offenses arising from a fatal automobile accident. After the defendant was convicted of these four misdemeanors and while his appeal was pending, the defendant was indicted for manslaughter based on the same accident, and was convicted. The defendant brought a habeas corpus action in the federal District Court, which held that the manslaughter prosecution violated the double jeopardy clause and that sub*87stitution of a felony charge covering the same conduct for which the defendant had been convicted of the misdemeanors violated the due process clause of the fourteenth amendment.

“The Fifth Circuit Court of Appeals affirmed, relying solely on the double jeopardy argument. Roberts v. Thigpen, 693 F.2d 132 (5th Cir. 1982). The United States Supreme Court affirmed on the due process ground, without deciding the double jeopardy issue. In dissent, Justice Rehnquist stated: T believe that the Court is obligated to confront the State’s contention that the Court of Appeals misapplied the Double Jeopardy Clause of the Fifth Amendment in this case. The Court being unwilling to undertake that obligation, I turn to it in dissent. . . . ’ ” State v. Lonergan, 16 Conn. App. 358, 373 n.12, 548 A.2d 718 (1988).

Furthermore, the Blockburger test is not talismanic. For example, in single prosecution cases it is not definitive in determining whether multiple punishments may be imposed. Rather, it is only a rule of statutory construction, utilized in what is “essentially a factual inquiry as to legislative intent [rather than] a conclusive presumption of law.” Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); see Whalen v. United States, 445 U.S. 684, 708,100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980) (Rehnquist, J., dissenting).

As the Appellate Court noted: “No Connecticut cases, including the ones cited by the state, hold that Blockburger applies without modification in successive prosecution cases. In fact, each case cited by the state, and all Connecticut appellate court cases that have cited Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), for the proposition that we do not examine the evidence at trial when applying the Blockburger test, involved single trial prosecutions. None of the cases revealed by our research on this issue involved successive prosecutions.” State v. Lonergan, 16 Conn. App. 358, 371 n.9, 548 A.2d 718 (1988).

In addition, the state argues that the Appellate Court’s decision is in conflict with this court’s decisions granting the state broad discretion in how it proceeds against'an accused. See State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985); State v. Silver, 139 Conn. 234, 243-44, 93 A.2d 154 (1952). But, as the Appellate Court appropriately notes: “Although the state may elect to sever for trial charges arising out of the same transaction or occurrence, it must do so in full cognizance of the enhanced double jeopardy protection afforded to the defendant as a result of forcing him to withstand more than one criminal prosecution.” State v. Lonergan, 16 Conn. App. 358, 379, 548 A.2d 718 (1988).

“Historians have traced the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes, who stated that ‘the laws forbid the same man to be tried twice on the same issue. . . .’” Whalen v. United States, 445 U.S. 684, 699, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980) (Rehnquist, J., dissenting), quoting 1 Demosthenes 589 (J. Vince trans. 4th Ed. 1970). “The date of Demosthenes quotation was 355 B.C., M. Friedland, Double Jeopardy 16 n.7 (1969), and the principle underlying the double jeopardy clause is, therefore, at least 234[4] years old.” G. Thomas, “The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition,” 71 Iowa L. Rev. 323, 325 n.8 (1986).

See United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977) (“permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression”); Benton v. Maryland, 395 U.S. 784, 795, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (“the fundamental nature of the guarantee against double jeopardy can hardly be doubted”).

The Supreme Court of Alaska has stated: “Although [the Blockburger\ test has been widely used by the courts, it has been increasingly criticized as not coping satisfactorily with the problem it was designed to solve. Legislative refinement of an essentially unitary criminal episode into numerous separate violations of the law has resulted in a proliferation of offenses capable of commission by a person at one time and in one criminal transaction. Since each violation by definition will usually require proof of a fact which the others do not, application of the [Blockburger] test will mean that each offense is punishable separately. But as the separate violations multiply by legislative action, the likelihood increases that a defendant will actually be punished several times for what is really and basically one criminal act.” Whitton v. State, 479 P.2d 302, 306 (Alaska 1970).

In fact, a commentator has noted that the Bloekburger test would permit six successive trials for a single act of sexual intercourse (adultery, for*92nication, bastardy, rape, incest, and impairing the morals of a minor). See note, “The Double Jeopardy Clause as a Bar to Reintroducing Evidence,” 89 Yale L.J. 962, 967 n.27 (1980).

Although the issue in the first prosecution was whether the defendant’s conduct was in consequence of his “intoxication,” and in the second prosecution the issue would be whether the defendant was operating a motor vehicle while “under the influence,” as the Appellate Court and the trial court both correctly stated: “ ‘While it is possible to be under the influence of intoxicating alcohol while not being intoxicated, it is impossible to be intoxicated while not, at the same time, be[ing] under the influence of alcohol.’ ” State v. Lonergan, 16 Conn. App. 358, 361, 548 A.2d 718 (1988); see Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Thus, the issue of whether the defendant was operating “under the influence” was necessarily litigated in the first trial.



Dissenting Opinion

Callahan, J.,

dissenting. I disagree with the majority’s holding that, in a successive prosecution case, two offenses can be considered the “same offense” for double jeopardy purposes where the same evidence or conduct proves both offenses even though the same two offenses would not be considered the same offense if brought in a single prosecution. I would reverse the Appellate Court and hold that the Block-burger test should be applied in successive prosecution cases to determine what constitutes the “same offense” for double jeopardy purposes.

Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), affirmed that the Blockburger test, as set forth in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), is “the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304 [52 S. Ct. 180, 76 L. Ed. 306] (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343 [31 S. Ct. 421, 55 L. Ed. 489] (1911), [the United States *94Supreme Court] held that ‘ “[t]he applicable rule is that where 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.” ’ 432 U.S., at 166. [The United States Supreme Court] recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Illinois v. Vitale, supra, 416. “[T]he Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). “The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the [less serious offense] to establish an element of [the more serious offense] would not be sufficient to bar the latter prosecution.” Illinois v. Vitale, supra, 419.1 Thus, the United States Supreme Court has repeatedly recognized that a second prosecution will not be barred on double jeopardy grounds simply because the evidence offered in the second prosecution may be duplicative of the evidence admitted in the first.

In Brown v. Ohio, the court outlined the policy behind the double jeopardy clause in successive prosecution cases. “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for *95the defendant’s benefit.’ . . . That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal . . . and from attempts to secure additional punishment after a prior conviction and sentence . . . .” (Emphasis added, citations omitted.) Brown v. Ohio, supra, 165-66. Here, however, the state is not attempting to relitigate the facts underlying the prior acquittal. “The trial court [in the first prosecution] ruled that the state had failed to prove beyond a reasonable doubt that the defendant’s alleged intoxication had caused the death of [the victim] and, accordingly, granted the defendant’s motion for judgment of acquittal.” State v. Lonergan, 16 Conn. App. 358, 360, 548 A.2d 718 (1988).

The sole issue determined by the trial court was that the defendant’s alleged intoxication was not the cause of the death of the victim as required for manslaughter in the second degree with a motor vehicle. The trial court never decided any of the elements of operating a motor vehicle while under the influence. Thus, the conduct of which the defendant was acquitted is not an element of the less serious crime for which the state now desires to prosecute him.2

While I agree that “the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense”; Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), this principle only *96applies when the state is attempting to relitigate the same offense. “[T]he United States Supreme Court has consistently declined to hold that double jeopardy requires the prosecution ‘to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.’ (Emphasis added.) Ashe v. Swenson, [397 U.S. 436, 453-54, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)] (Brennan, J., concurring). . . . ” State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985).

Under the majority’s analysis, the two offenses, operating a motor vehicle while under the influence and manslaughter in the second degree with a motor vehicle, constitute two different offenses and can be punished separately if the state brings both charges in a single trial. If, however, the state chooses to prosecute the crimes in two separate trials, they are considered the “same offense” apparently even if the first trial did not resolve the elements necessary to prove the second offense. Thus, the definition of what constitutes the “same offense” for double jeopardy purposes will vary depending upon whether the charges are brought in a single rather than a successive prosecution. The practical result of the majority’s opinion will be to force the state to bring both charges in the same proceeding; a result previously not required by the double jeopardy clause. The policies underlying the double jeopardy clause do not support this analysis and I cannot agree with such an inconsistent approach.

Accordingly, I dissent.

“The‘same evidence’test is not constitutionally required. It . . . has never been squarely held by this Court to be the required construction of the constitutional phrase ‘same offense’ in a case involving multiple trials; indeed, in that context it has been rejected. See In re Nielson, 131 U.S. 176 [9 S. Ct. 672, 33 L. Ed. 118 (1889)], discussed in Abbate v. United States, [359 U.S. 187, 201, 79 S. Ct. 666, 674, 3 L. Ed. 2d 729 (1959)].” Ashe v. Swenson, 397 U.S. 436, 452-53, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (Brennan, J., concurring).

The majority cites footnote 6 in Brown v. Ohio, 432 U.S. 161, 166-67, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), to support its conclusion that the Blockburger rule is not the sole test for determining whether successive prosecutions involve the same offense. In Brown, the court stated: “[E]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by theftr&t.” (Emphasis added.)Brown v. Ohio, supra, 166-67 n.6. As mentioned, however, in this case the state is not attempting to relitigate facts already resolved by the first prosecution.