59 Conn. App. 603 | Conn. App. Ct. | 2000
Opinion
The defendant, Jimmy Williams, appeals from the judgment of conviction, rendered after a jury trial, of two counts of carrying a pistol without a permit
The jury reasonably could have found the following facts. On October 16, 1996, the defendant and a friend, Ramone Vasquez, were riding their bicycles in the Fair Haven area of New Haven near Ferry Street. Later in the day, the defendant was riding alone on Ferry Street when he heard someone call, “Vasquez.” The defendant turned to see who had called the name and saw the victim, Carmello Amodovar, and the victim’s friend, Roberto Santiago, who were both members of a street gang. The victim pointed at the defendant and told Santiago that the defendant had insulted his girlfriend. Upon hearing about the insult, Santiago asked the defendant to approach him. The defendant did so, and Santiago told him that the victim wanted to engage in a one-on-one fight.
Subsequently, four other gang members arrived at the scene, pushed the defendant from his bicycle and began hitting him. The victim joined in on the attack and, during the altercation, the defendant’s sweatshirt was pulled upward, exposing a gun in his waistband. One of the attackers yelled “gun,” and all of the gang members ran away except the victim and Santiago. During the struggle, the victim and Santiago tried to get the gun from the defendant. The victim was shot in the abdomen and, subsequently, died.
The defendant was charged with one count of murder-in violation of General Statutes § 53a-54a (a) and two counts of carrying a pistol without a permit in violation of § 29-35 (a). He was acquitted of the murder charge and found guilty of the two counts of carrying a pistol without a permit. He received a sentence of five year’s imprisonment, execution suspended after four years, followed by two years probation on each count, to be served concurrently. This appeal followed.
The defendant claims that the uninterrupted act of carrying a pistol without a permit on different days is a single continuing offense, and, therefore, the multiple punishments imposed here violate the state and federal constitutional protections against double jeopardy. Thus, he claims that one of his convictions must be vacated. We disagree.
“The double jeopardy clause of the fifth amendment to the United States constitution provides that no per
“The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” State v. Hickam, supra, 235 Conn. 617-18. The defendant’s claim invokes that aspect of double jeopardy that prohibits multiple punishments for a conviction of a single offense. “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. Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met.” (Internal quotation marks omitted.) State v. Glover, 40 Conn. App. 387, 391, 671 A.2d 384, cert. denied, 236 Conn. 918, 673 A.2d 1145 (1996).
“In deciding whether the crimes arose out of the same act or transaction, we analyze the language of the
We are not persuaded by the defendant’s argument that the two violations of § 29-35 (a) for which he was convicted were not separate acts, but rather part of the same transaction as a continuing course of conduct. The defendant claims in his brief that “[w]here a statute is defined in terms of dominion or control, the offense is continuous in nature.” Thus, he claims that because the word “carry” in § 29-35 (a) is synonymous with “possession,” the legislature did not intend multiple punishments for the continuous carrying of a pistol.
The key to determining whether the continuing offense doctrine applies is legislative intent. Our Supreme Court has explained that “ 1 [t]he proper double j eopardy 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.’ Albernaz v. United States, 450 U.S. 333, 337, 101 S. Ct. 1137, 67 L. Ed. 2d 275 (1981) (Citations omitted.) State v. Freeney, 228 Conn. 582, 587-88, 637 A.2d 1088 (1994).
In State v. Hopes, 26 Conn. App. 367, 374-75, 602 A.2d 23, cert. denied, 221 Conn. 915, 603 A.2d 405 (1992), this court noted that the word carry is not defined in
The legislature clearly did not intend that proof that a person had carried a pistol without a permit on one occasion would immunize that person from punishment for carrying the same pistol on another, later occasion. Moreover, carrying and possession are different concepts, that is, a person can possess an. item without carrying it on his person. The statute is designed to prohibit the carrying of a pistol without a permit and not the possession of one. We conclude that the legislature intended to create discrete offenses for which multiple punishments may be imposed.
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . .
Although Glover deals with the question of whether a person can be convicted of two distinct offenses for the same conduct, the double jeopardy inquiry is the same.