State v. Ortiz

Aug 30, 1988
6107
Reporters:
, ,
Before:
Borden
Borden, J.

The defendant appeals from the judgment of conviction, after a jury trial, of carrying a pistol without a permit in violation of General Statutes *750§ 29-35 and criminal possession of a revolver in violation of General Statutes § 53a-217 (a). The defendant claims (1) that the trial court erred in refusing to sever the two charges and order separate trials on the two offenses, (2) that the trial court ‍​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​​‌​​​‌‌​​‌​‌‌‌​​‌‌‌‌‌​​‌‌​‌‌​​​​​​​‌​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‍committed plain error in failing to bifurcate the trial on the criminal possession of a revolver charge, (3) that General Statutes § 53a-217 (a) is unconstitutional, and (4) that his convictions under General Statutes §§ 29-35 and 53a-217 (a) violated his right to be free of double jeopardy under the state1 and federal constitutions.2 We find no error.

A recitation of the facts of this case is unnecessary. Each of the defendant’s claims has recently been addressed, and rejected, by this court. No facts in the record before us sufficiently distinguish this case from the cases cited below, which are dispositive of the defendant’s appeal.

The defendant’s first claim of error is that the trial court erred in refusing to sever the criminal possession of a revolver charge, which requires proof of a prior felony conviction, from the ‍​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​​‌​​​‌‌​​‌​‌‌‌​​‌‌‌‌‌​​‌‌​‌‌​​​​​​​‌​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‍trial of the charge of carrying a pistol without a permit. We do not agree. See generally, State v. Banta, 15 Conn. App. 161, 166, 544 A.2d 1226 (1988). The defendant “ ‘has failed to sustain his heavy burden of showing that the denial of his motion *751to sever resulted in substantial injustice or prejudice.’ ” Id., 172, quoting (State v. Edwards, 10 Conn. App. 503, 509, 524 A.2d 648, cert. denied, 204 Conn. 808, 528 A.2d 1155 (1987).

The defendant next claims that the trial court’s failure to bifurcate, sua sponte, the trial of the criminal possession of a revolver charge for separate jury consideration of the two elements of the crime, amounted to plain error. This claim is without merit. State v. Banta, supra, 172.

The defendant’s challenge to the constitutionality of General Statutes § 53a-217 (a) is raised for the first time on appeal. The defendant’s constitutional ‍​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​​‌​​​‌‌​​‌​‌‌‌​​‌‌‌‌‌​​‌‌​‌‌​​​​​​​‌​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‍claims, which are the same as those raised in State v. Banta, supra, do not qualify for full review under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). State v. Banta, supra, 181;3 State v. Reddick, 15 Conn. App. 342, 355, 545 A.2d 1109 (1988).

The defendant’s final claim of error is also without merit. The defendant’s conviction of carrying a pistol without a permit in violation of General Statutes § 29-35 and his conviction of criminal possession of a revolver in violation of General Statutes § 53a-217 (a), did not violate the protection against multiple punishments for the same offense under the double jeopardy clause. State v. King, 15 Conn. App. 330, 331, 544 A.2d 261 (1988).

There is no error.

In this opinion the other judges concurred.

Notes

“Although there is no specific prohibition of double jeopardy in the Connecticut constitution, [our Supreme Court has] in large part adopted the common-law rule against it ‘as necessary to the due ‍​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​​‌​​​‌‌​​‌​‌‌‌​​‌‌‌‌‌​​‌‌​‌‌​​​​​​​‌​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‍process guaranteed by article first, § 9 of our constitution.’ ” State v. Aillon, 182 Conn. 124, 126 n.2, 438 A.2d 30 (1980), cert. denied, 449 U.S. 1090, 101 S. Ct. 883, 66 L. Ed. 2d 817 (1981), quoting Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626 (1962). While the defendant relies on both the state and federal constitutions in support of his double jeopardy claim, he offers no separate analysis of the Connecticut constitution as a basis for different treatment of the federal and state constitutional claims. We decline to undertake such analysis. See State v. Camerone, 8 Conn. App. 317, 321 n.1, 513 A.2d 718 (1986).

The defendant’s claim that the trial court’s jury instructions on the defendant’s failure to testify did not comply with General Statutes § 54-84 (b), was withdrawn prior to argument.

The defendant also claims that General Statutes § 53a-217 (a) violates the due process clause because the possession criminalized ‍​‌​​​​‌​​‌‌​​‌‌‌​‌‌‌‌​‌‌‌‌‌​​‌‌​​‌‌​‌​​​‌​​​‌‌​​‌​‌‌‌​​‌‌‌‌‌​​‌‌​‌‌​​​​​​​‌​​​‌‌‌‌‌‌‌‌‌​​‌​‌‌‌‌‌‍by § 53a-217 (a) is “a wholly passive continuation of previously legal behavior.” In support of this claim, the defendant relies upon Lambert v. California, 355 U.S. 225, 78 S. Ct. 240, 2 L. Ed. 2d 228 (1957). We will not review this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), because the record does not adequately support the claim that the defendant has clearly been deprived of a fundamental constitutional right and a fair trial.