*1 through evidentiary, prevent fraud enforcement Lynch perjury never in fact made.” of contracts supra. v. Davis, present challenged in the as uncertain
The clause per- agreement promise to be not a case was parties, a condition formed but rather was performance. precedent Cahill, Lach v. See & 85 A.2d Calamari 418, 421, Conn. (2d 1977), pp. More- Perillo, Contracts Ed. defend- was the condition fulfilled because over, actually mortgage commitment in ants obtained a thirty percent years for at the desired amount 8 % year. per need Under these circumstances we applicability frauds consider the statute applied, it if we assume that the statute becausе, Heyman CBS, was satisfied. Inc., trial court A.2d 220-21, correctly plaintiffs allowed enforce contract.
There is no error. E. Truppi George
State Connecticut Healey J., C. Js. Bogdanski, Cotter, Peters, Parskey, *2 Argued October 9 —decision released December public Gottlieb, Suzanne Zitser assistant defender, Barnett, err H. with on the were J old whom, brief, public Rubin, and Joette Katz assistant defender, appellant (defendant). public defender, for the attorney, Ernest state’s Diette, Jr., assistant J. Browne, on Donald A. were whom, brief, attorney, Flanagan, assistant state’s and Walter D. attorney, appellee (state). for the state’s jury the defend- After trial to the Cotter, C. J. count information of ant was convicted on a four *3 degree, of in the first Generаl crimes sexual assault degree, (a) (2); § in the first Statutes 53a-70 assault robbery (a) (1); § in the General Statutes 53a-59 (a) degree, § 53a-134 first General Statutes degree, kidnapping in Stat- and the second General separate (a). imposed § sen- The utes 53a-94 court consecutively. run The tences under each to count, on intent error in an instruction defendant claims for assault and in and robbery. the consecutive sentences reasonably found the follow- could morning ing Early of December facts. up vic- the female behind came key putting into the backdoor tim was as she gun put Bridgeport; head; to her of in her house Thereupon, driver. he needed a and told her that pushed drive. told her to his car and he her into gun pointed he she his automobile While drove her to he After some time ordered at her head. accompany stop, get him a and car, out golf Country Club wooded area of the Brooklawn to remove Then he ordered her course Fairfield. clothing sexually There- her. all assaulted her he her to turn on her stomach after he told Suddenly searching pocketbook. began felt she her began fight on her back, thud turned over, back, cut in felt a her and blacked out. arm, The defend- ant her fourteen stabbed times and took from $200 foregoing during her wallet. The events occurred span approximately an hour and a half.
I
The defendant
claims
the court’s instructions
right
violated his constitutional
to due
process by shifting
proof
himto
the burden
contrary
holdings
intent,
in Sandstrom v.
Montana,
2d
S. Ct.
61 L. Ed.
(1979),
Arroyo,
State v.
180 Conn.
429 A.2d
(1980),
and State v. Harrison,
Before the ele- ments of the four crimes with which the defendant charged specific was and the intents criminal required degree, robbery for assault in the first degree, kidnapping the first second degree, gave following the court instruction *4 unconstitutionally which the defendant claims proof shifted the burden of him. “Now, usual of case, the State Connecticut does not have prove charged to offer evidence to that man a actually guilty guilty a crime had intent or knowl- edge. presumed This is because a man is to have intended do the acts which he did do. Aсcord- ingly, until some credible evidence into the comes tending prove light case because in that, the honestly good the circumstances he as and in faith (sic) believe them to be, the act he did would appear to be lawful or because the act was an may safely rely upon pre- accident, the State sumption that the accused intended to commit the acts which he did commit. Until such evidence appears jury presume in case, must that the jury accused intended to commit such acts as the accordingly find that he did commit find requisite guilty present that the intent if was as a by matter fact it is shown that the acts done accused were in fact unlawful.”1
Sandstrom held that in a cаse where intent is an charged, element of the crime instructions which a required reasonable could believe them to apply burden-of-persuasion-shifting or conclusive presumption person ordinary “that a intends the consequences voluntary of his acts” violate a right process Sandstrom, defendant’s to due of law. supra, 512, 515, 517. Unlike the instruction Sand- foregoing explicitly strom, the instruction stated presumption that the would vanish when some cred- contrary ible evidence came into Hence, the case. jurors reasonable could not this have viewed respecting instruction as conclusive the element of challenged passage intent. In con- addition, cerned intent tо do the act2 not intent to committed, ordinary consequences voluntary effect “the of his acts.” Sandstrom, *5 adopts able willed ment. See applied whenever tion charged in the information general 2Because this 1We do not understand how the dissent can claim that Yale jurors word: the first definition of the term “act.” Mr. Justice Holmes instruction L.J. Cook, could have attributed east actor; (1) any bodily passage “Act, Intention, the later terms of a before (3) used the term “act” ambiguously, indicated to the instructions mentioned intent. movement; presumption. instructions consequences Model Penal one of at least Motive (2) a muscular movement relating or results The the Criminal placement Code, this instruction three to the crimes this instruc § 1.13 meanings reason of this Law,” move (2),
limited the definition of an “act” the term. 52 Harv. Common Law, L. Rev. If 91. See also 905, jurors [912] chose the (1939). Perkins, Model Penal Code’s Our “A the second penal Rationale code does not define meaning. of terminology, Mens Rea,”
454
n “ambiguous avoided the The trial court 3 in the unchal “act” “intent” elastic” terms specifically instructions of lenged portion voluntary. acts were presume that the instruction told them to Dept. (1st Blum, N.Y.S.2d 359 People App. Div. 2d challenged pre- prevailed, the 1979). If Holmes’ definition Justice third defi- jury applied the tautology. If the sumption was a mere language “consequences” nition, approximated the the instruction from Sandstrom. “general equated in our decisions have Certain discussions voluntary only usually punishes concept intent” that the law with (1977). Roy, 35, 45, 376 A.2d See, e.g., acts. State v. aet requires of some forbidden the definition a crime “[W]here aet, must qualify an movement, as defendant, bodily his affirmative action extent, then, all crimes of voluntary. To be some least an mental element—at require something way of a the aet constitutes bodily movement which intention to make the defenses to broad requires. . which the crime . . [S]ome involuntary insanity, infancy, and liability (especially criminal from applicable, to relieve the actor intoxication) operate, when capacity negative his mental liability because these conditions up summed notions are sometimes These commit crime. ‘general intent,’ . . . .” require a expression that all crimes p. “The unadorned 201. Scott, (1972) Law § LaFave & Criminal crimes accurate word to describe what ‘fault’ is ... a more word Id., physical elements.” generally require § in addition to their prin fault conflicts with p. Certainly punishment without except small jurisprudence for a ciples Anglo-American criminal States, 341 U.S. regulatory offenses. Dennis v. United class Perkins, “A Rationale Ed. 1137 71 S. Ct. L. (1939). 905, 906 The venerable Rea,” of Mens 52 Harv. L. Rev. “specific “general intent” common-law between distinction however, in much confusion. United has, intent” crimes resulted Bailey, 394, 403, 624, 62 L. 2d 444 U.S. 100 S. Ct. Ed. States away from the ambiguity led to a movement “This has analysis dichotomy traditional of intent and toward an alternative replaces] ambiguous and term of mens rea . . . elastic [which ” Id., ‘hieraehy culpable of mind.’ ‘intent’ . . . with a states § 2.02; 403-404; Model Penal Code General Statutes 53a-3 § see (11)-(14).
455
degree.4
sexual assault in the first
Thus
related to
general
way incorpo
instructions were in no
into those instructions.
rated
reference
Con
applied
sequently the
would not have
the chal
arriving
lenged passage
on sexual
at their verdict
patent Sandstrom
assault.
In such an event even
244
State,
be
v.
Ga.
error would
harmless. Smith
Sunday,
(1979);
v.
116
State
262 S.E.2d
814, 821,
(Mont. 1980); see also Krzemin
“Only
exceptional
the most
circumstances will
from the
claim,
otherwise,
save a
constitutional or
consequences
make
fatal
of defendant’s failure to
objection.”
timely
State v.
182 Conn.
Baker,
(1980);
Arroyo,
A.2d 843
180 Conn.
56, 437
State v.
(1980);
Briggs,
Ill given the on assault, Unlike instructions sexual specifically relating the three the instructions remaining proof required each of which crimes, specific incorporated of a the court’s intent, general instruction on intent. Becausе a reasonable may guilty jury “requisite have believed that required specific intent” referred to intent charged remaining each of the three crimes past practice in follow our review information, we ing post-trial relating to narrow claims Sandstrom heightened culpability. requiring classes of crimes Vasquez, 438 A.2d 242, State v. 182 245-46, Conn. (1980); 75, 437 424 v. Maselli, 66, State (1980), 101 A.2d 836 449 S. cert. U.S. denied, Arroyo, Ct. 66 L. Ed. 2d State v. 807 Bailey, supra; see United 444 U.S. States 2d 100 S. Ct. L. Ed. “entirely permissive presump- An inference or require—the tion, which allows—but trier does proof by of fact to infer the elemental fact from prosecutor places no of the basic one [does burden of kind on the . . . defendant, process unless] not violate rational due thеre is no way permitted the trier could make connection County by Allen, the inference.” Ulster Court 140, 157, 99 S. Ct. L. Ed. 2d (1979); Arroyo, supra, portion however, cured,
Unless of the instruc- quoted the defendant tion have had an impact remaining on the defendant’s convictions supra, to the instruction in Harrison, similar “clearly shifted the defendant the burden of proof on element of intent and directed the proved to find criminal intent from the actions ” proof.’ unless the defendant his satisfied ‘burden of Vasquez, supra, portion 252. In this indicated effect, could convict defendant actually without evidence had guilty explicit intent. Thus, burden- shifting portion clause made this of the instruc respects tion more offensive in some Sand than strоm. Harrison, 696. Its rebuttable char “consequences” explicit acter and the absence of language, egregious however, render it less other *8 ways. jury if the Nevertheless, received no other reasonably may instruction on intent, have thought presumption mandatory. that the was In comply understanding they an effort to with that may applied burden-shifting have a rebuttable and presumption specific necessary to find the intent for each of the defendant’s convictions on counts. those County
Neither Sandstrom nor Ulster Court v. closely mandatory pre- Allen scrutinized rebuttable sumptions. Allen, however, indicated that it be proper analyze mandatory presump- a rebuttable permissible mеrely tion as imposes a if inference it extremely on the pro- defendant an low burden of by “any” duction which can be satisfied evidence. supra, Allen, 157-58 n.16. In this case the low producing burden of “some credible evidence” would pro- have satisfied the defendant’s burden duction. The defendant, however, neither took the suggested stand, offered theory nor witnesses, of defense in cross-examination or Thus, otherwise. unless the state introduced credible evidence presumed rebutted the intent, could have against concluded that it must find on 458 though not intent even the state had
the issue of
beyond
proven intent
a reasonable doubt.
otherwise
interpretation would have
an
violated
Such
рrocess rights by eliminating the
due
defendant’s
jury’s
weighing
evidence of intent;
role
274,
States,
246,
Morissette v. United
U.S.
freeing
Ed. 288
S.
96 L.
240,
Ct.
“beyond
doubt” stand-
from the
a reasonable
state
Winship,
In re
the constitution.
ard mandated
(1970).
We-therefore “careful attention the words actually spoken jury to the . . for . whether defendant has constitutional been accorded his rights depends way upon the in which a reasonable juror interpreted could have the instruction.” Sand- “presume” supra, The word does not strom, 514. charge Arroyo, supra, itself render a 175; invalid. Vasquez, supra; single supra, see Maselli, But a 76. may statement that “intent be inferred from con duct” will not overcome an otherwise conclusive burden-shifting Arroyo, supra, instruсtion. 181. general jury, Nor will instructions the the proven guilty innocent until proving the state bears the burden of the crime beyond a reasonable of doubt, themselves, jurors they may constitutionally instruct how use presumption which unless clarified would fail the supra, Sandstrom test. n.7; 518-19 Sandstrom, Arroyo, supra, supra, “[S]uch 175; Harrison, instructions, be considered [however,] all other instructions relevant to the claim raised jury to determine whether the could inter preted presumption the involved to be either con burden-shifting clusive or and, thus, unconstitutional.” Vasq uez, 251.5 present began by instructing In the case the court jury they judges the were the sole of facts sufficiency and of of the facts to demonstrate guilt They of the accused. told were that while might point legal the court out the effect of certain suggest facts or or evidence, certain considerations considering which the should bear in mind in concerning evidence, or make comments weight regarding of propriety evidence or finding certain facts from that such com- evidence, merely suggestive ments would be for approve disapprove the exercise their sound judgment. They were instructed that should proper make the deductions or inferences from 5Contrary merely implication dissenting opinion, *10 defining the word “intent” instruction does cure an erroneous jury presume the must intent or do so without evidence.
evidence but that should draw no presumрtion or inference of kind the against defendant testify. because he did not The court reminded the had from jury that the defendant no burden arising his as the accused and had no obligation position to with evidence go forward to defend himself, it not be sufficient for the state to make would the a of and then call guilt out case probable upon instructions Clearly to refute it. these the instruction that “the must contradicted and thus to reduce the harm which tended presume” language. have occurred because of that might e,6 in the first robbery Assault in the first degre each in the second degree8 degree,7 kidnapping criminal intent. After a distinct require specific the instructions mentioned earlier giving cоurt instructed general instructions, other intent required by them the specific regarding definitions. statutory of the crime (a) (1), defines General Statutes 53a-59 which § requires physical serious degree, “intent to cause in. first assault . person . . .” injury to another robbery (1) of (a) 53a-13f defines the crime § 7General Statutes 53a-133. robbery, in § which is defined degree in terms of first when, in the robbery person commits “A states: Section 53a-133 immediate larceny, or threatens the committing he uses a of course of: purpose person for the upon another physical force of use taking prop overcoming Preventing resistance or (1) taking; or immediately after thereof erty to the retention or person to propеrty or another compelling the of such (2) owner aids engage conduct or to in other up property deliver robbery incorporates larceny.” addition, In the commission same appropriate or to property deprive another the “intent larceny by 53a-119. $ required for person” a third to himself or kid defines the crime (a), whieh 53a-94 Statutes § 8General Section term “abducts.” degree, uses the
napping in the second person “to restrain mean (2) defines “abduct” 53a-91 holding or secreting (a) either his liberation prevent intent using or (b) likely found, to be is not place where he him in or intimidation.” force threatening physical to use
A specifically The directed instructions which were the stat- prohibited finding to the crime of assault9 if reasonable consis- explanation intent utory any in mind. jury’s with innocence remained the tent informed that the defendant were thus act the why the of explaining did have burden their must search occurred but rather that they might minds for any explanation reasonable the instructions directed exist. Furthermore intent cause serious infer to they should circumstances the facts and from physical injury if a reasonable beyond were it only satisfied of all the instructions on the element Thus, doubt. of of an in the first degree, intent needed for assault degree discussing in court 9While assault the first stated: degree person in law, guilty “Under our a is of assault the first person, when, physical injury to to another with intent cause serious dangerous a injury person by causes such of he to such means a specific requirement of weapon. The intent to harm is the basic Truppi simply criminal This defendant assault. means causing objective consciously, must have acted of serious with the namely information, physical injury person named crime, defend of Absent essential element this victim]. [the that each guilty. please remember Truppi be found And ant cannot beyond by the State proved element of the crime must be essential requires specific Now, . a a reasonable doubt. . . this statute degree. Now, first whether is, intent. That a crime of assault in the committing act, con in some did so person, doing or not a or so causing physical sciously objective, serious specific awith must you an issue which injury person persons, or is another you surrounding as determine from the circumstances look your judgment them be. You cannot exercise best find only way person’s ordinarily into a mind and we intention, intent determining person’s case the intent or this his Now, harm, is circumstantial there’s a difference evidence. evi and circumstantial evidence. Direct between direct evidence heard, knows, what saw, what what he dence is what someone he directly some to his observations or within he testifies to as visual Circumstantial thing That’s evidence. evidence he heard. direct when taken together cured possibility prej udice harm from that relied portion charge upon by as erroneous because *12 court directed the sufficient precision; Vasquez, supra, 252-53; Harrison, that 697; supra, any on presumption the element of intent was merely permissive, no burden of imposed any kind on the defendant.
Accordingly, reasonable jurors those following instructions would have weighed fact and cir every cumstance presented by the evidence when they determined that the defendant acted with intent to cause serious physical injury. they Therefore, not would have based an such a conclusion on Moris isolated fact. See Sandstrom, 522; supra, sette v. United States, Nor supra, 275. would facts, pieces circumstances of circumstances which, of evidence you put together, when lead to some reasonable that inference some other fact exists. And that’s what we call circumstantial evidence. Specific intent proved by evidence, therefore need not be direct but may be inferred from you the facts and the circumstances as find them to be. You only you should infer intent such if are satisfied beyond itof a your reasonable doubt. If in there remains mind explanation reasonable consistent with the innocence of this George Truppi, you E. specific then cannot find that exists, intent or if you the facts and beyond circumstances satisfies specific a reasonable intent, doubt that he did have such a that is the intent to commit degree, an assault the first your duty it’s to infer its proven. existence and to find that it has been In sum- mation, then, prove beyond the State must a doubt, reasonable that these three justify elements exist order to a conviction of assault degree. First, the first Truppi the defendant caused serious physical injury person, to another victim], by means of [the dangerous weapon; a secondly, that he specific did so with a intent injury to person cause such persons; such third, that his identity proven as the assailant been beyond has the State reasonable doubt. If the obligation State has failed to fulfill its proving beyond these elements of thе doubt, crime a reasonable you Truppi must find the defendant guilty. only not Proof of one of the elements of charged the crime is not support sufficient to conviction.” instructions as requiring interpreted statutory that he lacked prove the defendant stabbed he repeatedly the state proved after intent, them- “additional facts proved the victim and beyond of intent,” the element establishing selves Sandstrom, 524. supra, doubt. See a reasonable that a presump- not have believed would also They judgment their best not accord with tion which did a reason- of proof beyond the standard satisfy could Allen, supra, 159. able doubt. See intent to cause serious inference an Since circumstances of from injury proof physical it did not accords with reason, a multiple stabbing the law inform offend due process Allen, them to so infer. permitted *13 B first court’s on in the robbery instructions lack in the second degree10 degree11 and kidnapping the of those precision comprehensiveness given and charged regard robbery degree as 10With to in the first the court he that follows on the element of intent. fifth element is “[T]he intentionally robbery. Now, the committing acted in the crime of They English of ordinary words this statute are common words. you given ordinarily meaning should be their understood insofar as meaning are of the word concerned. The statute itself defines the robbery course person rоbbery when, as follows: commits ‘A committing larceny, of a immediate of he uses or threatens the use physical upon person preventing purpose force another for of the overcoming taking or reten property resistance to the of or to the immediately taking.’ 'larceny’ tion thereof after is the The word by larceny person also defined the statute as follows: 'A commits when, deprive intent property appropriate with to another of toor to wrongfully takes, the same himself or to a person, third he obtains property rightful person or withholds such from A acts the owner.’ intentionally respect by with to a a result or conduct described defining offense, objеctive statute an when his is to cause conscious engage result or to in sueh such Now, applying conduct. this statute upon you instructed, you and the definitions if have been that on 3rd, 1977, find December a at or about 5:30 in wooded vicinity area in the of Eairfield, Cornell Eoad in defendant the on the crime assault. of The court no gave further instructions on determine intent explanatory how to and did not refer to its instructions on intent as an element in of assault the first Therefore we degree. will not assume the considered the instruc- tions on intent as an element in of assault conjunc- tion with the court’s instructions on intent general when on deliberating and robbery kidnapping. intentionally Truppi currency did take in posses- $200 TJ.S. from the victim], sion of her, which was owned the [the appropriate money intent to or for to himself the benefit of person, another wife, his common-law was at evidence [there gave the trial $200 that the defendant the woman with whom living] you he if was further find that the course of the intentionally upon commission he of the crime inflicted [the victim] injuries knife, consisting wounds, with a of 14 which created stab victim], a substantial death or risk of the of which caused her [the disfigurement impairment serious or serious of health or serious impairment any bodily you may loss or the function organ, of of robbery degree. hand, guilty find him in the first the other of On if you Truppi find that not been identified as has perpetrator beyond a did doubt, reasonable he not inten- tionally money, her upon rob her of or that not inflict her he did received, you you find she then cannot wounds which classify injuries physical injuries, as serious and which created death, you must then substantial risk of find the defend- course guilty robbery degree.” ant not crime of first instructing kidnapping In the course on crime degree the second the court means restrain said: “To abduct person prevent by using with intent her liberation or threaten ing physical person intentionally force. A the use of acts under *14 our respect law with to a result or to conduct described defining offense, objective statute this when its conscious is to cause engage such Applying statute, result or to such conduct. this given you, you I have if from definitions find the evidence produced beyond in court, doubt, George Truppi a E. reasonable intentionally did 3rd, 1977, A.M., on December or about at 4:30 abduct from the back door of her home on Wood Avenue [the victim] at gunpoint, substantially that with intent to her interfere by compelling freedom of place movement her to drive his car from place to point to a near or on premises somewhere of the Brook- Country lawn Club, and he threatened and intimidated her with during physical the use of force time of such abduction with magnum pistol, you use of guilty a .44 caliber can find him degree.” kidnapping erime of the second
465 Arroyo, supra, 181. Since a reasоnable they permitted find “the believed that were guilty requisite if the offered no intent” even state pre- required on intent or that evidence were specific requisite guilty sume that the intents were present evi- unless the defendant some introduced contrary, on these dence to the instructions Arroyo, constitutionally impermissible. counts were supra. supra, 181; Harrison,
IV urges if instructions could that even the The state have led a reasonable to shift the burden proof on a lower to the defendant to find intent “beyond such than a doubt” standard reasonable error be of the overwhelm- would harmless because ing guilt. evidence the defendant’s
Ordinarily establishing harm the burden appel- from a trial cоurt error rests on the resulted Cooper, 438 A.2d lant. v. 182 Conn. State (1980); 435 Ruth, 187, 197, 418 State v. Pepe, A.2d v. 176 Conn. State (1978). con- A.2d “there are some However, rights fair that their to a trial stitutional so basic as harmless error.” treated infraction can never be Chapman S. Ct. 18, 23, v. California, (1967). a less basic If touches 17 L. 2d 705 error Ed. apply right, we sometimes constitutional only sparingly, exception, error” but “harmless Zeko, 177 circumstances. State discrete few, cir- In such A.2d 917 Conn. 545, 558, prove error require we state cumstances beyond doubt. State reasonable harmless *15 466 (1978); 386 221
Sorbo, 253, 257, 174 Conn. A.2d Aillon v. A.2d 49 State, 363 547-48, (1975). by a court
When commits constitutional error admitting post evidence of a -Miranda defendant’s warning post-arrest silence to rebut a clаim of com- police, weigh munication with the we consider overwhelming guilt determining evidence of proven whether has state “harmlessness” beyond Briggs, supra, a reasonable doubt. State v. 336-37; In Zeko, however, such a case, significantly impair the error does not truth finding function of the trial. jury reasonably
Since the defendant’s
could
determining
relied on a “no evidence”
standard
kidnapping
robbery they may
intent for
reason-
ably have failed to consider the
which
evidence,
urges
overwhelming.
pos-
the state
us to find
That
sibility
incompatible
with both the societal inter-
reliability
est in the
of these
see
verdicts;
Mullaney v.
Wilbur,
U.S.
95 S. Ct.
684, 699,
(1975);
protection
44 L. Ed. 2d 508
and the
guilt by
“beyond
determination of
a rea-
guarantee
sonable doubt” standard should
weigh
defendant. Therefore we decline to
the evi-
guilt against
damage
dence of
the uncured
done
portion
the harmful
To do
instructions.12
jury’s
otherwise would transfer
to this “court the
measuring
by appropriate
function of
the evidence
legal yardsticks.” Bollenbach v. United
States,
(1946).
66 S.
607, 614,
Ct.
90 L.
Ed. 350
robbery
Therefore we reverse the convictions for
kidnapping.
State
Contra,
100 S. Ct.
Hamilton,
People
Wright,
P.2d 1121
L. Ed.
408 Mich.
2d
(Mont.),
467 y The defendant also claims consecutive upon for he sentences received his convictions degree, in the first General Statutes assault degree, (a) (1), robbery § 53a-59 first (1), (a) § General 53a-134 violate the con- Statutes provision against jeopardy. We stitutional doublе retrial examine this claim because would affect a it robbery. provides perti- for in fifth amendment any person subject part for “nor be nent shall jeopardy put life or same offense be twice y. amend, applies This clause limb.” U.S. Const., through the states fourteenth amendment. Maryland, S. Ct. 395 89 784, 787, Benton v. U.S. jeopardy (1969). Ed. The double 23 L. 2d 707 2056, only prohibition separate but also not trials covers multiple punishments for the same offense single 97 432 165, trial. Brown v. U.S. Ohio, 161, legis- (1977). S. 53 Ed. 2d “The Ct. L. 187 fix lature remains free ... to define crimes may punishments,” not it acted courts but once has by imposing “legislative their authorization exceed multiple punishments Id; for same offense.” see United States, also Whalen v. L. Ed. 2d S. Ct. trig- jeopardy prohibition
“Beforе double only gered, appear must it however, charged trans- of the same act or crimes arose out substantially are action but also Amaral, same.” State Supreme (1979). The States
A.2d 1293
United
“Bloclcburger”
determine
applies
test to
Court
by violating
distinct
two
defendant,
whether a
transaction,
statutory provisions
act
one
sufficiently
committed “two offenses which are
distinguishable
permit
imposition
of cumu-
punishment.”
lative
Brown v.
Ohio,
provision requires proof
If “each
an additional
fact which the other does not” both offenses
be
Blockburger
punished.
v. United
284 U.S.
States,
*17
(1932).
In
S. Ct.
In the the state’s accused charged degree in first defendant of assault and the defendant “with intent serious cause physical injury physical . . . did cause serious injury dangerous to wit: . . . with instrument, attorney further accused a knife.” The state’s robbery in in information of the same charged degree and the defendant the first property . . . and in the course “stole certain physi- serious the crime did cause the commission of injury.” cal charged informa- as in the
Each of these crimes required proof or facts of an additional fact tion degree Robbery did not. in the first which the other larceny, required proof of the additional element of degree required proof while assault in the first cause defendant used a knife with “intent physical injury.” defendant’s serious Thus, impose permitting are the state to offenses distinct, separate punishments. is in There is no error and part.
There error third is affirmed as to the second and judgment degree counts sexual assault the first charging in the first is error as degree; and assault there the first and fourth counts of the informa- regards and the second tion, charging kidnapping degree first and as to degree robbery respectively, judgment thоse counts set aside only, trial new is ordered. Js., Healey
In this opinion Peters, Parskey, concurred. J. instruc- The court’s (dissenting).
Bogdanski, on tions first robbery degree kidnapping Arroyo in the second are valid under degree State framework. Arroyo, Conn.
A.2d 457 (1980).
The court’s on these crimes do not charges possess for potential conclusiveness or burden-shifting that was Sandstrom Montana, present or State S. 61 L. Ct. Ed. 2d 39 (1979), Harrison, Conn. A.2d 111 In fact, attacked instructions cast are not terms of a at all. presumption say They merely acts that, our person “[a] under intentionally law with to a result respect or to conduct described defining statute this when its con- offense, scious is to objective cause such result or to engage in such conduct.” The court then instructed the this apply definition of the word intent their deliberations. This instruction on intent could not be reasonably construed to a conclusive require or a presumption shifting the burden of proof. It overcame any conclusive and burden-shifting effect earlier instruction. gave instructions, the start of its at court, charge. gave impermissible fur- It Sandstrom robbery and kid- on intent for the
ther instructions robbery giving charges. napping At the time of charges kidnapping it did not refer to its earlier impermissible should we Therefore, instructions. not assume that the considered Sandstrom robbery conjunction kid- with the instruction in charges. Arroyo, supra, napping I affirm the convictions. would T. Moore, Warden, Richard v. Francis Cain Haven New Correctional Center Healey J., Bogdanski, Cotter, C. Peters, Parskey, Js. Argued October 9— decision released December