State v. NixonState v. Nixon
- Reporters:
- , ,
- Before:
- Flynn
Opinion
The defendant, James Nixon, appeals from the judgment of conviction, rendered after a jury trial, of two counts of assault in the second degree in violation of
The jury reasonably could have found the following facts. The victim, Cloyde Dixon, shared a home with several roommates, one of whom was the defendant. On the evening of September 24, 2002, the defendant and another roommate were arguing. The victim, seeing that the defendant was intoxicated, told the two roommates to finish their argument downstairs so that he could get some sleep. Sometime thereafter, the victim went into the kitchen to get a glass of water, and the defendant came upstairs from the basement.
Officer Tom Flaherty of the West Haven police department responded to the call of a fight at the residence of the defendant and the victim. While approaching the home, Flaherty noticed the defendant, in an intoxicated state, walking away from the scene. Flaherty handcuffed the defendant, detained him in the police car and went inside the residence, where he encountered the wounded victim. The victim identified the defendant as his attacker, and Flaherty placed the defendant under arrest.
The state, in a long form information, charged the defendant with two counts of assault in the second degree in violation of
I
The defendant first claims that the state charged him in a multiplicitous information 3 and that the conviction and sentence on two counts of assault in the second degree, arising from one continuous assault perpetrated against one victim in a short period of time at the same location, violated his rights as guaranteed by the double jeopardy clause of the fifth amendment to the United States constitution and the constitution of Connecticut. 4 We agree.
The defendant concedes that his claim was not preserved at trial and seeks to prevail under
State
v.
Golding,
213 Conn. 233, 239-40, 567 A.2d 823 (1989).
5
Such review is warranted. See
“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.” (Internal quotation marks omitted.)
State
v.
D’Antonio,
274 Conn. 658, 714-15, 877 A.2d 696 (2005). Here, counts one and two of the amended long form information, the counts on which the defendant was convicted, both charged that “at the Town or City of West Haven, on or about the 24th day of September, 2002, in the area of 126 Taft Avenue, the [defendant], with intent to cause physical injury to another person, caused such injury to another
person, specifically Cloyde Dixon, by means of a deadly weapon or a dangerous instrument other than by means of the discharge of a firearm, in violation of Connecticut General Statutes
“Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met. ... It is well settled that [t]he proper double jeopardy inquiry when a defendant is convicted of multiple violations of the same statutory provision is whether the legislature intended to punish the individual acts separately or to punish only the course of action which they constitute. ... As [was] noted in State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985), the issue, though essentially constitutional, becomes one of statutory construction. [Our Supreme Court] recently interpreted a number of criminal statutes to determine the same issue: whether the legislature intended to allow punishment for two separate violations of the same statutory provision. ... In these cases, [the Supreme Court] found that the pivotal question was whether the statutes defined crimes against the individual persons.” (Citation omitted; internal quotation marks omitted.) State v. D’Antonio, supra, 274 Conn. 715-16.
The state argues that the defendant’s conviction and sentence on both counts of assault were proper because the jury reasonably could have found that the defendant twice intentionally stabbed the victim
The state also offers as support for its argument the case of State v. Tweedy, 219 Conn. 489, 594 A.2d 906 (1991), in which the defendant was convicted, inter alia, of robbing a single victim twice within a thirty minute time period. In Tweedy, the defendant forced his way into the victim’s apartment, robbed her once, sexually assaulted her and then made her walk with him to a bank to withdraw money from her account using an automatic teller machine, thereby robbing her a second time. Under the facts of Tweedy, the robberies were separated by a sexual assault, requiring a different mens rea, and they occurred in two different locations. Here, the defendant and the victim were in an altercation, which, by the victim’s own testimony, occurred over the course of a few minutes, in the same location, between the same two people, resulting in the victim’s twice being stabbed by the defendant.
The state, during oral argument, also argued that this case is analogous to
State
v.
Garvin,
242 Conn. 296, 699 A.2d 921 (1997), in which the defendant was charged and convicted of two counts of failure to appear in the first degree for not appearing in court on only one occasion, but in violation of two separate bail bonds. In
Garvin,
our Supreme Court explained: “A bail bond is a contract between the government and the defendant and his surety. . . . Each bail bond or promise to appear constitutes a contract that can be forfeited, not only upon the defendant’s failure to appear, but also upon breach of other conditions in the agreement. . . . In this case, the language of the bail bonds evidences, for each bond, a contract in which the defendant promised to appear wherever his appearance might be relevant to the charges against him, and not only at any one designated time and place. Specifically, the defendant promised to appear at any other place and time to which the charge(s) against me may be continued and in any other court to which the charge(s) against me may be transferred. The defendant executed two such bonds, one for each file, and although both bonds recited the same form language, each constituted an independent
promise to appear.”
The state contends that just as the legislature intended to punish a defendant for failing to appear on each bond, it also intended that each act of causing a physical injury during an assault be punishable as a separate assault: “Each isolated act of causing physical injury to another person is a separate and distinct crime that can be committed uno actu.” The state argues that is true even where the confrontation is continuous, uninterrupted and close in time.
To clarify the state’s contention, it was asked of counsel during oral argument whether, “if you and I were in a fistfight, and I hit you a hundred times with my fist . . . would I be guilty of a hundred assaults?” To which counsel for the state responded: “Yes, according to the statutes . . . .” Counsel for the state then explained: “Under
An exhaustive review of the case law of other states reveals only one case that is on point. In
State
v.
Pelayo,
881 S.W.2d 7 (Term. Grim. App. 1994), the defendant was charged with, and convicted of, two counts of aggravated assault for cutting the victim first on the arm, and again a few moments later as she tried to escape, on the leg. On appeal, the Tennessee Court of Criminal Appeals reversed a conviction in part and set aside the conviction of one of the counts, holding that “[w]hile the assaults were separated by time and place . . . they coalesced into an ‘unmistakable single act,’ though separated by a few seconds and feet.” Id., 13. The court based its decision on the language of the Tennessee statute, which focused on the act of causing injury, fear or physical contact and did not indicate that
the legislature intended for a defendant to be punished separately “for each blow or injury.” Id. The aggravated assault statute at issue in
Pelayo
“deem[ed] a person guilty of aggravated assault who ‘[cjommits an assault as defined in [Tenn. Code Ann.] § 39-13-101 [1991], and (A) [c]auses serious bodily injury to another; or (B) [u]ses or displays a deadly weapon. . . .’
“In order to prove assault in the second degree, the state must show that the defendant intended to cause physical injury . . . [which] requires the intent to bring about a physical result, i.e., injury . . . .” (Citations omitted; internal quotation marks omitted.)
State
v.
Stavrakis,
88 Conn. App. 371, 389, 869 A.2d 686, cert. denied, 273 Conn. 939, 875 A.2d 45 (2005). Although the state, here, argues that the legislature’s use of the word “injury,” in the singular, indicates a desire to punish
II
The defendant next claims that the court improperly charged the jury that it could infer a consciousness of guilt because he left the scene. The defendant argues that because he explained that he left the scene to await the arrival of the police, such an instruction was improper. The state argues that the court’s instruction on consciousness of guilt was proper because the evidence adduced at trial supported such an instruction. We agree with the state.
“Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) State v. Hernandez, 91 Conn. App. 169, 176-77, 883 A.2d 1, cert. denied, 276 Conn. 912, 886 A.2d 426 (2005).
The relevant portion of the jury charge was as follows: “The conduct of a person in leaving the scene of a crime, if proven that he was in fact at the scene of a crime, may be considered in determining his guilt, since, if unexplained, it tends to prove a consciousness of guilt, or of a flight. [And] if shown, is not conclusive, nor does it raise a legal presumption of guilt, but it’s to be given the weight to which the jury thinks it is entitled under the circumstances shown.” (Emphasis added.) The defendant argues that because he did offer a reasonable explanation for leaving the scene, this instruction was improper because it was not unexplained.
When noting the defendant’s exception to this portion of the charge, the court explained: “I think in this matter there was clear testimony that the defendant did leave the building where these alleged incidents took place. Further, there was some conflicting testimony with respect to whether the defendant was heading toward a point where he was waving the police officers down, or walking away from that point when the police officers arrived. I think, based on that, there is, again, adequate evidence for the court to insert this particular charge here.” We agree.
Although the defendant explained that he left the scene to await the arrival of the police, Officer Flaherty testified that when he saw the defendant, the defendant was walking along the street, away from the scene, and was wearing boxer shorts. Flaherty, then, stopped the defendant and handcuffed him.
“Flight is a form of circumstantial evidence. Generally speaking, all that is required is that the evidence have relevance, and the fact that ambiguities or explanations may exist which tend to rebut an inference of guilt does not render evidence of flight inadmissible but simply constitutes a factor for the juiy’s consideration. . . . [W]hen a defendant has left the [scene] following a crime, the question is:
why
did he do so? This requires an assessment by the fact finder of the defendant’s motivations or reasons for leaving
Here, as the court explained in noting the defendant’s exception to the charge on consciousness of guilt, there was testimony, in contrast to the defendant’s explanation that he had left the scene to await the arrival of the police, that would support an inference that the defendant was walking away from the scene and did not signal the police upon their arrival at the area. It was the function of the jury to assess the credibility of the witnesses and to credit or to discredit the defendant’s explanation. Here, the court’s instruction to the jury that the defendant’s flight “if unexplained ... is not conclusive, nor does it raise a legal presumption of guilt, but it’s to be given the weight to which the jury thinks it is entitled under the circumstances shown”; (emphasis added); was proper under the circumstances, the jury being free to accept or to reject the defendant’s explanation.
The judgment is reversed in part and the case is remanded with direction to combine the conviction of two counts of assault in the second degree and to resentence the defendant on one count of assault in the second degree.
In this opinion the other judges concurred.
Notes
Here, the state charged the defendant with two counts of assault in the second degree on the basis of two stab wounds. The jury found the defendant guilty for twice stabbing the victim, and the court entered individual sentences for each count. Because the combining of the convictions into one count of assault in the second degree would now be based on the facts of the entire assault, the court must resentence the defendant taking the entire assault into consideration.
“Indictments charging a single offense in different counts are multiplicitous.” Thirty-First Annual Review of Criminal Procedure, 90 Geo. L.J. 1087, 1359 (2002). In contrast, “[ijndictments charging two or more distinct offenses in a single count are duplicitous.” Id., 1355.
The double jeopardy clause of the fifth amendment to the United States constitution is made applicable to the states through the due process clause of the fourteenth amendment; Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969); and the prohibition against double jeopardy that is implied in the due process and personal liberty guarantees of article first, §§ 8 and 9, of the constitution of Connecticut. See State v. Kasprzyk, 255 Conn. 186, 192, 763 A.2d 655 (2001). “[0]ur state constitution [however] does not provide greater protection [against double jeopardy] than the federal constitution . . . .” State v. Benjamin, 86 Conn. App. 344, 348 n.5, 861 A.2d 524 (2004). Our analysis is limited, therefore, to that of the federal constitution.
“[A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” State v. Golding, supra, 213 Conn. 239-40.
“Our case law has long established that each act of criminal sexual conduct, as defined by our criminal statutes, is separately punishable under those statutes and, therefore, in such cases there is no double jeopardy violation because they do not arise out of the same act or transaction.” State v. Scott, supra, 270 Conn. 99.
“It is axiomatic that the law favors rational and sensible statutory construction, and that the courts interpret statutes to avoid bizarre or nonsensical results. . . . [W]e will not undertake an examination of [a statutory provision] with blinders on regarding what the legislature intended [it] to mean. ... In interpreting a statute, common sense must be used .... The law favors rational and sensible statutory construction. . . . The unreasonableness of the result obtained by the acceptance of one possible alternative interpretation of an act is a reason for rejecting that interpretation in favor of another which would provide a result that is reasonable. . . . When two constructions are possible, courts will adopt the one which makes the [statute] effective and workable, and not one which leads to difficult and possibly bizarre results. . . . We have long followed the guideline that [t]he intent of the lawmakers is the soul of the statute, and the search for this intent we have held to be the guiding star of the court. It must prevail over the literal sense and the precise letter of the language of the statute. . . . When one construction leads to public mischief which another construction will avoid, the latter is to be favored unless the terms of the statute absolutely forbid [it]. . . . Thus, we win not limit our review solely to the words used in [the statute], but instead use common sense, as well as the legislative history, policy and its relationship to existing legislation and common-law principles pertaining to the same general subject matter.” (Citations omitted; internal quotation marks omitted.) Whitaker v. Commissioner of Correction, 90 Conn. App. 460, 490-91, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005).