State v. Tinsley ( 2021 )

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STATE OF CONNECTICUT v. DARRELL TINSLEY
(SC 20479)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker and Keller, Js.
Syllabus
The defendant, who had been convicted of manslaughter in the first degree
and risk of injury to a child, appealed to the Appellate Court from the
trial court’s denial of his motion to correct an illegal sentence. The
defendant’s conviction stemmed from an incident that occurred while
he was watching the victim, a fifteen month old, when the victim’s
mother was at work. The defendant had alerted the victim’s mother that
something was wrong with the victim and picked her up from her place
of employment. While the three of them were driving to the hospital,
they were involved in a motor vehicle accident. The victim died at the
hospital, and an autopsy revealed bruises on his cheek, one of his legs,
and his chest, which occurred shortly before his death, and internal
abdominal injuries, including a broken rib and a lacerated liver, the
latter of which was determined to be the cause of the victim’s death.
Although the defendant ultimately was convicted of the lesser included
offense of manslaughter in the first degree, the operative information
had charged him with capital felony, alleging in relevant part that the
defendant, ‘‘with the intent to cause the death of [the victim], caused
the death of [the victim] . . . by blunt trauma to the abdomen.’’ As to
the risk of injury charge, the information alleged in relevant part that
the defendant ‘‘did an act likely to impair the health of [the victim] . . .
by inflicting multiple trauma to his face, head, chest, and abdomen and
thereby causing: laceration of the liver, internal bleeding in the abdomen,
fracture of the tenth right rib, and multiple contusions of the face, head,
chest, and abdomen.’’ In his motion to correct, the defendant claimed
that his sentence imposed for manslaughter in the first degree and risk
of injury to a child violated the constitutional prohibition against double
jeopardy. The Appellate Court reversed the trial court’s denial of the
defendant’s motion to correct. The Appellate Court determined that,
when a defendant claims that his conviction includes a lesser included
offense, the court does not merely compare the elements of each offense
under Blockburger v. United States (284 U.S. 299) but, instead, asks
whether it is possible to commit the greater offense, ‘‘in the manner
described in the information,’’ without having first committed the lesser
offense. Accordingly, the Appellate Court concluded that, even though
risk of injury was not a lesser included offense of manslaughter in the
first degree under Blockburger, insofar as each offense required poof
of an element that the other did not, it was a lesser included offense
as charged by the state in the information because it was not possible
for the defendant to have committed manslaughter in the first degree
by inflicting blunt trauma to the victim’s abdomen without also impairing
the health of the victim by inflicting trauma to his abdomen. On the
granting of certification, the state appealed to this court. Held that the
Appellate Court incorrectly determined that the defendant’s convictions
of risk of injury to a child and manslaughter in the first degree were
the same offense for double jeopardy purposes, as that court improperly
considered the facts alleged in the information rather than confining its
analysis to the statutory elements of the offenses, and, accordingly, this
court reversed the judgment of the Appellate Court and remanded the
case with direction to affirm the trial court’s denial of the defendant’s
motion to correct: the Appellate Court improperly conflated the cognate
pleadings approach, by which courts determine whether a defendant
has received constitutionally adequate notice of the charges against him
when a lesser included offense instruction has been requested, with the
Blockburger test, which protects against cumulative punishments and
under which two distinct statutory provisions constitute the same
offense only if each provision requires proof of a fact that the other
does not; moreover, although the language of the charging documents
is relevant to whether the statutory elements of each offense are the
same under Blockburger, federal and state precedent, including this
court’s own case law, confirmed that the statutory elements, rather than
the factual allegations in the charging documents, drive the Blockburger
inquiry, notwithstanding a substantial overlap in the proof offered to
establish the crimes; furthermore, to the extent that this court has
suggested that a court undertaking a double jeopardy analysis should
consider the facts alleged by the state ‘‘in the manner described in the
information,’’ that directive was relevant in determining whether one
crime is a lesser included offense of another only insofar as the reviewing
court is consulting the information in order to determine whether it
alleges distinct elements for each offense, rather than in determining
the particular factual predicate of the case; in the present case, man-
slaughter in the first degree, which requires proof that the defendant,
with intent to cause serious physical injury, caused the victim’s death,
and risk of injury to a child, which requires proof of the defendant’s
impairment to the health of a child less than sixteen years of age, each
contained an element that the other did not, and it was therefore possible
to commit either offense without committing the other.
Argued April 1, 2021—officially released August 27, 2021*
Procedural History
Substitute information charging the defendant with
the crimes of capital felony and risk of injury to a child,
brought to the Superior Court in the judicial district of
Hartford and tried to the jury before Barry, J.; verdict
and judgment of guilty of the lesser included offense
of manslaughter in the first degree and of risk of injury
to a child, from which the defendant appealed to the
Appellate Court, Lavery, C. J., and Schaller and Zarella,
Js., which affirmed the trial court’s judgment; there-
after, the court, Schuman, J., denied the defendant’s
motion to correct an illegal sentence, and the defendant
appealed to the Appellate Court, DiPentima, C. J., and
Bright and Devlin, Js., which reversed the trial court’s
judgment, and the state, on the granting of certification,
appealed to this court. Reversed; judgment directed.
Melissa L. Streeto, senior assistant state’s attorney,
with whom, on the brief, were Sharmese L. Hodge,
state’s attorney, Gail P. Hardy, former state’s attorney,
and John Fahey, supervisory assistant state’s attorney,
for the appellant (state).
Naomi T. Fetterman, for the appellee (defendant).
Opinion
ROBINSON, C. J. The sole issue in this certified
appeal is the extent to which a court should consider
the facts alleged by the state in the charging documents
when determining whether a crime is a lesser included
offense of another, rather than confining its analysis to
the elements of the statutes at issue, under Blockburger
v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed.
306 (1932). The state appeals, upon our grant of its
petition for certification,1 from the judgment of the
Appellate Court reversing the judgment of the trial
court, which denied the motion to correct an illegal
sentence filed by the defendant, Darrell Tinsley, on the
basis of its conclusion that the defendant’s convictions
of manslaughter in the first degree in violation of Gen-
eral Statutes § 53a-55 (a) (1)2 and risk of injury to a
child in violation of General Statutes (Rev. to 1995)
§ 53-21, as amended by Public Acts 1995, No. 95-142,
§ 1,3 violate the constitutional prohibition against dou-
ble jeopardy. See State v. Tinsley, 197 Conn. App. 302,
304, 326, 232 A.3d 86 (2020). On appeal, the state claims
that the Appellate Court improperly considered the fac-
tual allegations in the information in concluding that
risk of injury to a child, as charged therein, was a lesser
included offense of manslaughter in the first degree,
rendering the defendant’s conviction of both offenses
a violation of his right to be free from double jeopardy.
We conclude that the Appellate Court improperly con-
sidered the facts alleged in the state’s information,
rather than confining its analysis to the statutory ele-
ments under the Blockburger test, insofar as risk of
injury to a child is not a lesser included offense of
manslaughter in the first degree because each offense
requires the state to prove an element the other does
not. Accordingly, we reverse the judgment of the Appel-
late Court.
The record reveals the following relevant facts and
procedural history, aptly set forth by the Appellate
Court in its opinion. ‘‘[Despite having] an unstable rela-
tionship, [the defendant and the victim’s mother] cohab-
ited in a one bedroom apartment along with the [fifteen
month old] victim . . . . During the course of the
adults’ relationship, individuals who knew the victim
noticed a marked change in his behavior when he was
in the presence of the defendant. At such times, the
victim was timid, withdrawn and afraid of the defen-
dant. The defendant’s attitude toward the victim ranged
from indifference to dislike. When [the victim’s mother]
was no longer able to avail herself of professional child
care, the defendant sometimes took care of the victim
while [the victim’s mother] worked.
‘‘Prior to his death, the victim was in good health.
On December 8, 1996, between 8 and 8:30 a.m., the
defendant drove [the victim’s mother] to her place of
employment. According to [the victim’s mother], there
was nothing wrong with the victim when she went to
work. During the morning, [the victim’s mother] and the
defendant spoke by telephone several times concerning
the victim. At approximately 11:15 a.m., the defendant
telephoned [the victim’s mother], stating that there was
something wrong with the victim and that he did not
know what was the matter. The defendant then drove
the victim to [the victim’s mother’s] place of employ-
ment, and, from there, all three proceeded to the Con-
necticut Children’s Medical Center (medical center) in
Hartford. They were involved in a motor vehicle acci-
dent en route.
‘‘When he arrived at the medical center, the victim
was in critical condition because he was not breathing
and had little heart activity. The victim died when resus-
citation efforts failed. An autopsy revealed bruises on
the victim’s right cheek, left leg and chest, which an
associate medical examiner from the [O]ffice of the
[C]hief [M]edical [E]xaminer determined occurred shortly
before the victim’s death. The injuries were inconsistent
with an automobile accident, a twelve inch fall into a
bathtub, cardiopulmonary resuscitation or bumping
into a fire door, which were explanations offered by the
defendant. The victim also suffered significant internal
injuries, namely, multiple fresh cranial hemorrhages, a
broken rib and a lacerated liver that caused three quar-
ters of his blood to enter his abdominal cavity. Accord-
ing to the associate medical examiner, the victim’s liver
was lacerated by blunt trauma that occurred within
[one] hour of death and was the cause of death.’’ (Inter-
nal quotation marks omitted.) Id., 304–306.
‘‘The state charged the defendant with capital felony
in violation of General Statutes (Rev. to 1995) § 53a-
54b (9), as amended by [§ 3 of] No. 95-16 of the 1995
Public Acts, and risk of injury to a child in violation of
§ 53-21. The jury found the defendant guilty of the lesser
included offense of manslaughter in the first degree in
violation of § 53a-55 (a) (1) and risk of injury to a child.
On February 6, 1998, the court sentenced the defendant
to twenty years of incarceration on the manslaughter
count and ten years of incarceration on the risk of injury
count with the sentences to run consecutively. . . . On
March 8, 2018, the defendant . . . filed a . . . motion
to correct an illegal sentence and an accompanying
memorandum of law, [claiming that his sentence vio-
lated his federal and state constitutional rights to be
free from] double jeopardy . . . . On May 15, 2018, the
court issued its memorandum of decision denying the
defendant’s motion to correct an illegal sentence.’’
(Footnotes omitted.) Id., 306–307.
Specifically, the court stated: ‘‘ ‘It . . . seems to me
entirely possible that the fatal blows to the ribs, liver,
and abdomen could have occurred from a separate blow
that was interrupted perhaps by a minute or so before
or after trauma was inflicted to the child’s face and
head, which is also alleged in the information. And in
that situation it would not clearly be one continuous
uninterrupted assault. I acknowledge the defense argu-
ment that there’s no way to actually parse through all
this at this time twenty years later, but ultimately it’s
the defendant’s burden, and if we can’t do that then
the defendant has not met his burden.’ ’’ Id., 309.
The defendant appealed from the judgment of the
trial court to the Appellate Court, claiming that ‘‘his
conviction and punishment for manslaughter in the first
degree and risk of injury arose from the same transac-
tion and that risk of injury is a lesser included offense
of manslaughter in the first degree, as charged in this
matter, in violation of his right to be free from double
jeopardy.’’ Id. The Appellate Court agreed with the
defendant. Specifically, the court concluded that, despite
risk of injury not being a lesser included offense of
manslaughter in the first degree under the Blockburger
test, it was nevertheless a lesser included offense as
charged in the information in this case. Id., 325. Accord-
ingly, the Appellate Court reversed the judgment of the
trial court and remanded the case for further proceed-
ings. Id., 326. This certified appeal followed.
Before turning to the parties’ claims, we set forth the
applicable standard of review and background princi-
ples governing the analysis of double jeopardy claims.
‘‘A defendant’s double jeopardy claim presents a ques-
tion of law, over which our review is plenary. . . . The
double jeopardy clause of the fifth amendment to the
United States constitution provides: [N]or shall any per-
son be subject for the same offense to be twice put in
jeopardy of life or limb. The double jeopardy clause
[applies] to the states through the due process clause
of the fourteenth amendment. . . . This constitutional
guarantee prohibits not only multiple trials for the same
offense, but also multiple punishments for the same
offense in a single trial.’’ (Internal quotation marks omit-
ted.) State v. Porter, 328 Conn. 648, 654–55, 182 A.3d
625 (2018).
‘‘Double jeopardy analysis in the context of a single
trial is a [two step] process, and, to succeed, the defen-
dant must satisfy both steps. . . . First, the charges
must arise out of the same act or transaction [step one].
Second, it must be determined whether the charged
crimes are the same offense [step two]. Multiple punish-
ments are forbidden only if both conditions are met.
. . . At step two, we [t]raditionally . . . have applied
the Blockburger test to determine whether two statutes
criminalize the same offense, thus placing a defendant
prosecuted under both statutes in double jeopardy:
[W]here the same act or transaction constitutes a viola-
tion 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.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.)
Id., 655; see also State v. Goldson, 178 Conn. 422, 424,
423 A.2d 114 (1979). At the outset, we note that the
Appellate Court’s conclusion that the defendant’s con-
victions of manslaughter in the first degree and risk of
injury arose from the same act or transaction perpetu-
ated on the same victim is undisputed. See State v.
Tinsley, supra, 197 Conn. App. 319. Accordingly, pursu-
ant to the second step of Blockburger, we now turn to
whether risk of injury to a child is a lesser included
offense of manslaughter in the first degree, rendering
them the same offense for double jeopardy purposes.
‘‘Our case law has been consistent and unequivocal’’
that the second step of Blockburger ‘‘is a technical one
and examines only the statutes, charging instruments,
and bill of particulars as opposed to the evidence pre-
sented at trial.’’ (Internal quotation marks omitted.)
State v. Porter, supra, 328 Conn. 656; accord State v.
Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert.
denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811(2013). When conducting this analysis, ‘‘we are con-
cerned with theoretical possibilities, and do not focus
on the evidence presented.’’ (Internal quotation marks
omitted.) State v. Mezrioui, 26 Conn. App. 395, 403–404,
602 A.2d 29, cert. denied, 224 Conn. 909, 617 A.2d
169 (1992).
Although it is well settled that, under Blockburger, a
court may look to the charging documents to determine
whether one crime is a lesser included offense of
another, at issue in this appeal is the extent to which
the particular facts alleged within the charging docu-
ments are relevant to that analysis. The state challenges
the Appellate Court’s conclusion that, ‘‘[when] the
defendant claims that his or her conviction includes a
lesser included offense, we employ a different analysis
than the traditional Blockburger comparison of the ele-
ments of each offense. . . . ‘The test for determining
whether one violation is a lesser included offense in
another violation is whether it is possible to commit
the greater offense, in the manner described in the
information or bill of particulars, without having first
committed the lesser.’ ’’ (Citations omitted; emphasis
added.) State v. Tinsley, supra, 197 Conn. App. 313.
The Appellate Court cited to a series of cases from both
this court and the Appellate Court that have included
the language, ‘‘in the manner described in the informa-
tion,’’ when considering whether one crime is a lesser
included offense of another, namely, State v. Miranda,
260 Conn. 93, 125, 794 A.2d 506, cert. denied, 537 U.S.
902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002), State v.
Greco, 216 Conn. 282, 292, 579 A.2d 84 (1990); State v.
Goldson, supra, 178 Conn. 426, State v. Bumgarner-
Ramos, 187 Conn. App. 725, 749, 203 A.3d 619, cert.
denied, 331 Conn. 910, 203 A.3d 570 (2019), and State
v. Flynn, 14 Conn. App. 10, 17–18, 539 A.2d 1005, cert.
denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217(1988). See State v. Tinsley, supra, 313. For the reasons
discussed in this opinion, we conclude that, under
Blockburger, these cases do not require the case spe-
cific, fact sensitive inquiry in which the Appellate Court
engaged.
The parties dispute whether the Appellate Court cor-
rectly determined that the facts alleged by the state in
the information are determinative of the double jeop-
ardy inquiry under Blockburger. The state claims that
the court should consider only the statutory elements
of each offense and that two crimes do not become
greater or lesser included offenses by virtue of the spe-
cific facts alleged by the state in the information. In
response, the defendant argues that the Appellate Court
correctly determined that the two offenses, as described
in the information, are the same offense, regardless
of their differing statutory elements. We agree with the
state and conclude that, under the Blockburger test,
manslaughter in the first degree and risk of injury to a
child are not greater and lesser included offenses because
each has a statutory element the other does not, regard-
less of the facts alleged in the information. Accordingly,
the defendant’s conviction of both offenses did not vio-
late the prohibition against double jeopardy.
At the center of the parties’ dispute and the Appellate
Court’s conclusion is the language ‘‘in the manner
described in the information.’’ The issue before us is
whether this language alters the Blockburger test and
requires a court to consider the elements of the offense
within the specific factual scenario alleged in the charg-
ing documents. At the outset, we recognize that ‘‘in the
manner described in the information’’ is language that
has appeared, in the double jeopardy context, under
two common instances in which a court must determine
whether one crime is a lesser included offense of
another. A comparison of those two instances highlights
how they have been conflated, and we take this opportu-
nity to clarify the appropriate double jeopardy analysis
under Blockburger.
The first instance in which a court must determine
whether one crime is a lesser included offense of
another, in the context of double jeopardy, is the ‘‘cog-
nate pleadings approach.’’ State v. Tomlin, 266 Conn.
608, 618, 835 A.2d 12 (2003). The cognate pleadings
approach is used to determine whether a defendant has
received constitutionally adequate notice of the charges
against him when a lesser included offense instruction
has been requested. See id., 617–18. ‘‘A defendant is
entitled to an instruction on a lesser [included] offense
if, and only if . . . [among other conditions] it is not
possible to commit the greater offense, in the manner
described in the information or bill of particulars,
without having first committed the lesser . . . .’’4
(Emphasis added.) State v. Whistnant, 179 Conn. 576,
588, 427 A.2d 414 (1980); see also State v. Brown, 163
Conn. 52, 62, 301 A.2d 547 (1972) (‘‘to require an instruc-
tion on a lesser included offense, the lesser offense
must not require any element which is not needed to
commit the greater offense in the manner alleged in
the information or the bill of particulars’’).
Although the cognate pleadings approach bears some
relation to the double jeopardy analysis, it is, by defini-
tion, distinct from the Blockburger test that a court
engages in to decide if being put to jeopardy on a lesser
offense bars a later prosecution on the greater offense
or if the conviction of two offenses in a single trial
essentially punishes a defendant for a single crime. See
State v. Greco, supra, 216 Conn. 292 (Blockburger test
is distinct analysis from test evaluating jury instruc-
tions). In contrast to the cognate pleadings approach,
when the court seeks to determine whether a defen-
dant’s conviction of multiple crimes violates his right
against double jeopardy under Blockburger, it is well
settled that ‘‘the test . . . is whether each provision
requires proof of a fact which the other does not.’’
(Internal quotation marks omitted.) Id., 291; accord
State v. John, 210 Conn. 652, 695, 557 A.2d 93 (1989),
cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d
50 (1989), and cert. denied sub nom. Seebeck v. Connect-
icut, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989);
State v. Wright, 197 Conn. 588, 593, 500 A.2d 547 (1985).
Subsequent federal and sister state precedent, along
with the United States Supreme Court’s own ‘‘decisions
applying [Blockburger’s] principle reveal . . . [that]
the [c]ourt’s application of the [Blockburger] test
focuses on the statutory elements of the offense. If each
requires proof of a fact that the other does not, the
Blockburger test is satisfied, notwithstanding a sub-
stantial overlap in the proof offered to establish the
crimes.’’ (Citations omitted; emphasis added.) Iannelli
v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284,
43 L. Ed. 2d 616 (1975); see Gore v. United States, 357
U.S. 386, 389, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958);
American Tobacco Co. v. United States, 328 U.S. 781,
788–89, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946); see also
United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct.
2849, 125 L. Ed. 2d 556 (1993) (‘‘[i]n both the multiple
punishment and multiple prosecution contexts, this
[c]ourt has concluded that [when] the two offenses for
which the defendant is punished or tried cannot survive
the ‘same-elements’ test, the double jeopardy bar applies’’);
United States v. DeCarlo, 434 F.3d 447, 455–56 (6th Cir.
2006) (‘‘[t]he [d]ouble [j]eopardy [c]lause is not violated
merely because the same evidence is used to establish
more than one statutory violation if discrete elements
must be proved in order to make out a violation of each
statute’’). The purposes of the two tests highlight a key
distinction between the analyses. The Blockburger test
protects ‘‘against cumulative punishments [and] is . . .
designed to ensure [only] that the sentencing discretion
of the courts is confined to the limits established by the
legislature.’’ (Internal quotation marks omitted.) State
v. Greco, supra, 216 Conn. 293. The cognate pleadings
approach, on the other hand, is ‘‘grounded on the prem-
ise that whe[n] one or more offenses are lesser than
and included within the crime charged, notice of the
crime charged includes notice of all lesser included
offenses. . . . This notice permits each party to pre-
pare a case properly, each cognizant of its burden of
proof.’’5 (Internal quotation marks omitted.) State v.
Tomlin, supra, 266 Conn. 617.
We acknowledge that, under both the cognate plead-
ings approach and the Blockburger test, the language
of the statutes under which the defendant is charged,
as well as the charging documents, are relevant. See
State v. Greco, supra, 216 Conn. 292. The Appellate
Court, however, did more than examine the charging
documents to determine the statutory elements of each
offense, as is required under Blockburger. Instead, the
court relied on the specific factual manner in which the
defendant’s offenses were described in the information:
‘‘Focusing our analysis on the theoretical possibilities,
rather than the evidence, we cannot discern a scenario
in which the defendant could have caused the death of
the fifteen month old victim by blunt trauma to the
abdomen without also impairing the health of the victim
by inflicting trauma to his abdomen. Stated differently,
it was not possible for the defendant to commit the
homicide offense, in the manner described in the infor-
mation, without first having committed risk of injury
to a child.’’ (Emphasis added.) State v. Tinsley, supra,
197 Conn. App. 324. Therefore, the Appellate Court
improperly conflated the cognate pleadings approach
with the Blockburger analysis because the cognate
pleadings approach, unlike the Blockburger test, ‘‘does
not insist that the elements of the lesser offense be a
subset of the higher offense. It is sufficient that the
lesser offense have certain elements in common with
the higher offense . . . . [In addition], the relationship
between the offenses is determined not by a comparison
of statutory elements in the abstract, but by reference
to the pleadings in the case.’’ (Internal quotation marks
omitted.) State v. Tomlin, supra, 266 Conn. 618. Essen-
tially, by its definition, the cognate pleadings approach
is inconsistent with the well established Blockburger
test, which, by its own terms, is limited to considering
only the elements of the statutes and the charging docu-
ments.6
The defendant argues that, in State v. Tomlin, supra,
266 Conn. 608, this court rejected the Blockburger analy-
sis when determining whether one offense is a lesser
included offense of another in favor of the cognate
pleadings approach. We disagree. In Tomlin, this court
considered whether, under the circumstances of that
case, the trial court had properly instructed the jury
that manslaughter was a lesser included offense of mur-
der. Id., 627–28. As we discussed previously in this opin-
ion, whether a lesser included offense instruction is
appropriate in a particular case is governed by an analy-
sis distinct from the Blockburger test. Indeed, the court
in Tomlin appropriately did not reference Blockburger
at all in the entirety of its opinion in that case. Thus,
the defendant’s reliance on Tomlin is misplaced.
The defendant also points to this court’s statement
in State v. Bletsch, 281 Conn. 5, 28, 912 A.2d 992 (2007),
that ‘‘[t]he Blockburger test . . . requires that we look
to charging instruments for the facts the state has
alleged to satisfy the statutory elements.’’ We disagree
with the defendant’s characterization of Bletsch because
this court’s reference to the facts alleged in the informa-
tion in that case was to better ascertain under which
portion of the statutes the defendant was charged. The
defendant in Bletsch alleged that ‘‘one cannot engage
in sexual intercourse with a child under sixteen . . .
without either having contact with her intimate parts
or without subjecting the victim to contact with that
person’s intimate parts . . . and that sexual inter-
course with a child under sixteen necessarily will impair
the child’s morals.’’ Id. This court considered the facts
alleged in the information, not to position the elements
within the facts of the charged offense, as the Appellate
Court did in the present case, but to consider all hypo-
thetical scenarios that would prove one offense and
not the other under the statutory elements. This court
concluded that ‘‘it is possible to have contact with the
victim’s intimate parts, such as her breasts, without
engaging in sexual intercourse. Consequently, it was
possible to prove each offense in the manner charged
in the substitute information without necessarily prov-
ing the other offense.’’ Id., 29. Therein lies the distinc-
tion. In Bletsch, this court referenced the information
to ascertain all possible scenarios in which one crime
could be committed without the other. In contrast, the
defendant in the present case asks us to limit all hypo-
thetical scenarios only to the one that is described in
the information, namely, that manslaughter of a minor
child cannot occur without risk of injury to that child.
Such analysis would alter the emphasis Blockburger
places on the statutory elements, and we decline to do
so.
We recognize that both this court and the Appellate
Court have used the phrase in ‘‘the manner described in
the information’’ within various Blockburger inquiries.
Such references appear to have led to significant confu-
sion regarding, and ultimately conflation of, the cognate
pleadings approach and the Blockburger test. Illustrat-
ing this confusion, the Appellate Court concluded that,
‘‘[when] the defendant claims that his or her conviction
includes a lesser included offense, we employ a differ-
ent analysis than the traditional Blockburger compari-
son of the elements of each offense.’’ State v. Tinsley,
supra, 197 Conn. App. 313. To support this conclusion,
the court relied on three Connecticut cases, namely,
State v. Greco, supra, 216 Conn. 292, State v. Carlos P.,
171 Conn. App. 530, 537–39, 157 A.3d 723, cert. denied,
325 Conn. 912, 158 A.3d 321 (2017), and State v. Ray-
mond, 30 Conn. App. 606, 610–11, 621 A.2d 755 (1993).
These cases, however, do not stand for the proposition
that an analysis other than the Blockburger test should
be used to determine whether a defendant’s conviction
under two statutes violates the prohibition against dou-
ble jeopardy. In each of these three cases, this court or
the Appellate Court undertook a traditional Blockburger
analysis and examined the statutory elements of the
offenses.
The inclusion of ‘‘in the manner described in the
information’’ has not, and cannot, alter the application
of the Blockburger test. To illustrate this point, we
briefly review a series of cases that contain the phrase
‘‘in the manner described in the information’’ or similar
language, including those cases referenced by the
Appellate Court.
In State v. Miranda, supra, 260 Conn. 93, this court
concluded that assault in the first degree and risk of
injury to a child ‘‘both require proof of elements that
the other does not. Consequently, it is possible to prove
one offense in the manner charged in the information
without necessarily proving the other offense.’’ (Emphasis
in original.) Id., 126. This court referenced only the
statutory elements required to prove each offense. See
id. The information was relevant in identifying the
charges against the defendant and the elements the
state had to prove. See id. Similarly, in Greco, this court
concluded that, because ‘‘there are no elements of first
degree robbery and first degree burglary [that] are not
also elements of felony murder when the felony murder
count alleges ‘robbery and burglary’ as the predicate
offenses, these offenses constitute the ‘same offense’
as the felony murder charge under the Blockburger
test.’’ State v. Greco, supra, 216 Conn. 292. Therefore,
the information was relevant to the court’s analysis
insofar as it identified the predicate offenses for felony
murder. See id.; see also State v. Goldson, supra, 178
Conn. 426–27 (concluding that it is impossible to trans-
port narcotics without possessing narcotics); State v.
Bumgarner-Ramos, supra, 187 Conn. App. 751 (‘‘[c]on-
sidering the theoretical possibilities . . . and not the
evidence, as [a court is] required to do in the second
step of the Blockburger analysis, [the court is] aware
of no conceivable circumstance in which the defendant
could have caused [the victim’s] death without also
having caused her serious physical injury’’); State v.
Raymond, supra, 30 Conn. App. 611–12 (considering
language of information and concluding ‘‘that the infor-
mation alleges two different intents’’); State v. Flynn,
14 Conn. App. 10, 17–18, 539 A.2d 1005 (considering
elements of charges and whether each provision
requires proof of additional fact that other does not),
cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d
217 (1988). Thus, the ‘‘manner described in the informa-
tion’’ is relevant in determining whether one crime is
a lesser included offense of another only to the extent
the reviewing court is consulting the information in
order to determine whether it alleges distinct elements
for each offense, rather than to determine the particular
factual predicate of the case. Indeed, this court does
not always consult the information when it is evident
that each offense contains an element the other does
not. See, e.g. State v. McCall, 187 Conn. 73, 91, 444 A.2d
896 (1982) (concluding that risk of injury to child is
not lesser included offense of sexual assault in second
degree because ‘‘[e]ach requires proof of an element
not required by the other’’).
The United States Supreme Court’s decision in Illi-
nois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d
228 (1980), further confirms that the statutory elements,
rather than the factual allegations, drive the Blockburger
inquiry. In Vitale, the defendant argued that, under Illi-
nois law, it was impossible to convict him of manslaugh-
ter without also proving his reckless failure to slow his
vehicle because the state alleged that the victim’s death
was caused by his failure to brake. See id., 418. The
court disagreed and concluded that ‘‘[t]he point is that
if manslaughter by automobile does not always entail
proof of a failure to slow, then the two offenses are
not the ‘same’ under the Blockburger test. The mere
possibility that the [s]tate will seek to rely on all of the
ingredients necessarily included in the traffic offense
to establish an element of its manslaughter case would
not be sufficient to bar the latter prosecution.’’7 Id., 419.
Therefore, because the well established Blockburger
test focuses on the elements of each offense rather than
the facts alleged in the information, we now consider
the elements that the state must prove for manslaughter
in the first degree and risk of injury to a child.
In the present case, the defendant, although initially
charged with capital felony, was convicted of the lesser
included offense of manslaughter in the first degree in
violation of § 53a-55 (a) (1), which requires the state to
prove that (1) ‘‘the defendant intended to cause serious
physical injury to the victim,’’ and (2) ‘‘he caused [the
victim’s] death.’’ (Internal quotation marks omitted.)
State v. Greene, 186 Conn. App. 534, 550, 200 A.3d 213(2018). The information alleged that the defendant,
‘‘with the intent to cause the death of [the victim],
caused the death of [the victim], who was then [fifteen]
months of age, by blunt trauma to the abdomen.’’8
The defendant was also convicted of risk of injury
to a child in violation of the act prong of § 53-21.9 See
footnote 9 of this opinion. The state had to prove that
the defendant, ‘‘with the general intent to do so, commit-
ted (1) an act (2) likely to impair the morals or health (3)
of a child under the age of sixteen.’’ (Internal quotation
marks omitted.) State v. Owens, 100 Conn. App. 619,
636, 918 A.2d 1041, cert. denied, 282 Conn. 927, 926
A.2d 668 (2007). The information alleged that the defen-
dant ‘‘did an act likely to impair the health of [the
victim], a child who was then [fifteen] months of age,
by inflicting multiple trauma to his face, head, chest,
and abdomen and thereby causing: laceration of the
liver, internal bleeding in the abdomen, fracture of the
tenth right rib, and multiple contusions of the face,
head, chest, and abdomen.’’
The statutory elements of manslaughter in the first
degree and risk of injury to a child indicate that each
offense contains an element that the other does not.
Manslaughter in the first degree under § 53a-55 (a) (1)
requires the state to prove that the defendant, with
intent to cause serious physical injury, caused the vic-
tim’s death, whereas risk of injury to a child in violation
of § 53-21 requires proof of impairment to the health
of a child less than sixteen years of age. Thus, it is
conceivable to commit the crime of manslaughter in
the first degree without committing risk of injury to a
child under sixteen. Similarly, it is entirely possible to
commit the crime of risk of injury to a child without
committing manslaughter in the first degree because an
impairment to the health of a child does not necessarily
involve causing the death of a child by intentionally
causing serious physical injury. The Appellate Court’s
additional consideration of the facts alleged in the infor-
mation, specifically with respect to the victim’s abdomi-
nal injury, was misplaced because that analysis does
not shed light on whether the two offenses each contain
an element of proof the other does not. The existence of
an abdominal injury is not an element of either offense.
Because the United States Supreme Court has declined
to consider facts alleged in the information when con-
ducting a Blockburger analysis, we decline to import
that consideration into the double jeopardy analysis.
Finally, the defendant argues that we should treat
his convictions of manslaughter in the first degree in
violation of § 53a-55 (a) (1) and risk of injury to a child
in violation of § 53-21 as the same offense for double
jeopardy purposes, even if they constitute separate
offenses under the Blockburger test. ‘‘The Blockburger
test is a rule of statutory construction, and because it
serves as a means of discerning congressional purpose
the rule should not be controlling [when], for example,
there is a clear indication of contrary legislative intent.’’
(Internal quotation marks omitted.) State v. Miranda,
supra, 260 Conn. 127; accord State v. Greco, supra, 216
Conn. 293. Given our conclusion that, under Blockburger,
the defendant’s convictions of manslaughter in the first
degree and risk of injury to a child ‘‘do not constitute
the same offense, the burden remains on the defendant
to demonstrate a clear legislative intent to the con-
trary.’’ (Internal quotation marks omitted.) State v.
Schovanec, 326 Conn. 310, 326, 163 A.3d 581 (2017).
The defendant, however, has provided no authority for
his claim that the legislature intended to treat §§ 53a-
55 (a) (1) and 53-21 as the same offense for double
jeopardy purposes. Accordingly, we conclude that
§§ 53a-55 (a) (1) and 53-21 are not the same offense for
double jeopardy purposes. See, e.g., State v. Miranda,
supra, 127.10 The Appellate Court, therefore, incorrectly
determined that the defendant’s convictions of risk of
injury to a child in violation of § 53-21 and manslaughter
in the first degree in violation of § 53a-55 (a) (1) violated
the defendant’s right to be free from double jeopardy.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
affirm the judgment of the trial court.
In this opinion the other justices concurred.
* August 27, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We granted the state’s petition for certification to appeal, limited to the
following issue: ‘‘Did the Appellate Court correctly conclude that, notwith-
standing the fact that manslaughter in the first degree, under General Statutes
§ 53a-55 (a) (1), and risk of injury to a child, under General Statutes (Rev.
to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § 1, are not
the same offense under Blockburger v. United States, [supra, 284 U.S. 299],
the defendant’s conviction of those crimes nonetheless violated the double
jeopardy clause of the United States constitution because, as charged in
the information, those crimes stood in relation of greater and lesser included
offenses?’’ State v. Tinsley, 335 Conn. 927, 234 A.3d 979 (2020).
2
General Statutes § 53a-55 (a) provides in relevant part: ‘‘A person is
guilty of manslaughter in the first degree when: (1) With intent to cause
serious physical injury to another person, he causes the death of such person
or of a third person . . . .’’
3
General Statutes (Rev. to 1995) § 53-21, as amended by No. 95-142, § 1,
of the 1995 Public Acts, provides in relevant part: ‘‘Any person who (1)
wilfully or unlawfully causes or permits any child under the age of sixteen
years to be placed in such a situation that the life or limb of such child is
endangered, the health of such child is likely to be injured or the morals
of such child are likely to be impaired, or does any act likely to impair the
health or morals of any such child . . . shall be guilty of a class C felony.’’
All references to § 53-21 in this opinion are to the 1995 revision of the
statute, as amended by No. 95-142, § 1, of the 1995 Public Acts.
4
By way of background, we note that ‘‘[a] defendant is entitled to an
instruction on a lesser offense if, and only if, the following conditions are
met: (1) an appropriate instruction is requested by either the state or the
defendant; (2) it is not possible to commit the greater offense, in the manner
described in the information or bill of particulars, without having first com-
mitted the lesser; (3) there is some evidence, introduced by either the
state or the defendant, or by a combination of their proofs, which justifies
conviction of the lesser offense; and (4) the proof on the element or elements
which differentiate the lesser offense from the offense charged is sufficiently
in dispute to permit the jury consistently to find the defendant innocent of
the greater offense but guilty of the lesser.’’ State v. Whistnant, 179 Conn.
576, 588, 427 A.2d 414 (1980).
5
Although we do not consider the cognate pleadings approach in great
detail here because this case does not concern a lesser included offense
instruction, we note that ‘‘[c]ourts face a [two part] analysis when consider-
ing lesser included offense issues: first, does the offense meet the definition
of a lesser included offense; and second, if it is a lesser included offense,
should an instruction be given to the jury?’’ J. Minerly, ‘‘The Interplay of
Double Jeopardy, the Doctrine of Lesser Included Offenses, and the Substan-
tive Crimes of Forcible Rape and Statutory Rape,’’ 82 Temp. L. Rev. 1103, 1107
(2009). Blockburger addresses the first inquiry as to whether a defendant
may be punished for multiple crimes. See id., 1110–11. States have varying
approaches to answer the second inquiry regarding jury instructions; Con-
necticut uses the cognate pleadings approach. See, e.g., State v. Tomlin,
supra, 266 Conn. 618.
‘‘The [cognate pleadings] approach uses the pleadings, rather than the
statutory elements, to determine whether a [lesser included] offense charge
is acceptable. States using this approach compare the elements, as modified
by the defendant’s charging instrument, to the elements of the proposed
[lesser included] offense. If the lesser offense is described by the pleadings,
then the charge is permissible. This method allows the court to consider
the specific facts as stated in the pleadings, rather than being tied to the
letter of the elements of the charged offense. In sum, it is a more customized
approach than the statutory-elements method of analysis.’’ (Footnotes omit-
ted.) A. Peters, ‘‘Thirty-One Years in the Making: Why the Texas Court of
Criminal Appeals’ New Single-Method Approach to Lesser-Included Offense
Analysis Is a Step in the Right Direction,’’ 60 Baylor L. Rev. 231, 240 (2008).
6
We note that the defendant, throughout his brief, describes the cognate
pleading approach as part and parcel of the Blockburger analysis. For exam-
ple, the defendant argues that, because the cognate pleadings approach
references the factual allegations contained in the state’s information to
determine whether one crime is the lesser included offense of another for
purposes of jury instructions, the same approach should be applied to a
Blockburger analysis. The defendant, however, does not direct us to any
authority to support the proposition that the two approaches are interchange-
able.
7
The United States Supreme Court in Vitale did not ultimately resolve
the issue of whether manslaughter and failure to reduce speed were greater
and lesser included offenses. The court observed that the ‘‘Illinois Supreme
Court did not expressly address the contentions that manslaughter by auto-
mobile could be proved without also proving a careless failure to reduce
speed, and [the court is] reluctant to accept its rather cryptic remarks about
the relationship between the two offenses involved here as an authoritative
holding that under Illinois law proof of manslaughter by automobile would
always involve a careless failure to reduce speed to avoid a collision.’’
Illinois v. Vitale, supra, 447 U.S. 419. The United States Supreme Court
remanded the case to the Illinois Supreme Court to determine whether,
under Illinois statutes, as construed by the state’s highest court, manslaugh-
ter always would require proof of failure to slow because, if it did not, the
two offenses were not the same for Blockburger purposes. See id., 421.
8
Although the information charges the defendant with capital felony, the
statutory elements are the same for manslaughter in the first degree with
the exception of the applicable mental state. Because the defendant refer-
ences the description contained within the information, we address it here
only to demonstrate the ultimate importance to the double jeopardy inquiry
of the statutory elements of each offense.
9
This court has identified two distinct prongs under § 53-21, namely, the
situation prong and the act prong. See State v. Padua, 273 Conn. 138, 147–48,
869 A.2d 192 (2005). ‘‘The ‘situation prong’ refers to the language in [the
statute that] provides that ‘[a]ny person who . . . wilfully or unlawfully
causes or permits any child under the age of sixteen years to be placed in
such a situation that the life or limb of such child is endangered, the health
of such child is likely to be injured or the morals of such child are likely
to be impaired . . . shall be guilty of a class C felony . . . .’
‘‘The ‘act prong’ refers to the language . . . that provides: ‘or does any
act likely to impair the health or morals of any such child . . . shall be
guilty of a class C felony . . . .’ ’’ (Emphasis omitted.) State v. Owens, 100
Conn. App. 619, 635–36 n.12, 918 A.2d 1041, cert. denied, 282 Conn. 927,
926 A.2d 668 (2007).
10
We note that, because the state did not provide the Appellate Court
‘‘with any authority that our legislature authorized separate penalties for the
defendant’s criminal offenses . . . [that court] defer[red] to the Blockburger
presumption and conclude[d] that . . . the defendant’s punishment cannot
withstand constitutional scrutiny.’’ State v. Tinsley, supra, 197 Conn. App.
325–26. On appeal, the state challenges the Appellate Court’s allocation of
the burden. Because we conclude that the two offenses are distinct under
the Blockburger test, it is the defendant’s burden to demonstrate contrary
legislative intent.