State v. Oscar H. ( 2021 )

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STATE OF CONNECTICUT v. OSCAR H.*
(AC 43622)
Lavine, Prescott and Suarez, Js.**
Syllabus
The defendant, who had been convicted of several crimes, including murder,
as a result of the stabbing death of N, appealed, claiming that the trial
court improperly admitted into evidence the deposition testimony of B,
whom the defendant also stabbed during the same incident, after having
improperly determined pursuant to the former testimony exception to
the rule against hearsay in the applicable provision (§ 8-6 (1)) of the
Connecticut Code of Evidence that B, an undocumented immigrant,
who had returned to her native Guatemala prior to trial, was unavailable
to testify. The defendant also claimed that his conviction of attempt to
commit murder and assault in the first degree as to B violated the
constitutional prohibition against double jeopardy because each crime
was predicated on the same act against B. Prior to trial, the court granted
the state’s motion to issue a subpoena for B to be deposed, as her return
to Guatemala would put her beyond the state’s subpoena power. At the
judicially supervised deposition, which was video-recorded and tran-
scribed, the defendant had an opportunity to cross-examine B without
any restrictions by the court. B, who spoke no English, thereafter left for
Guatemala. At trial, P, a director of an immigrant services organization,
testified that she had spoken with B at least once a month after B
returned to Guatemala and that, at the state’s request, she spoke to B
by phone three days before the trial and B indicated that she would not
voluntarily return to Connecticut to testify. The defendant argued that
the state had failed to establish B’s unavailability because, inter alia, P
spoke with B only by phone and did not testify that she had seen B in
Guatemala, there was no evidence that B had been forced to leave the
United States and because the state should have advised B not to return
to Guatemala. The trial court admitted the videotaped deposition, con-
cluding that the state had met its burden of establishing B’s unavailability
pursuant to § 8-6 (1). Held:
1. The trial court properly determined that B was unavailable to testify and
admitted her deposition testimony at trial, the state having acted in
good faith and with due diligence to procure her attendance: under
the totality of the circumstances presented, the defendant’s rights to
confrontation and due process were not violated, as the state made
sufficient efforts to establish B’s unavailability, the defendant provided
no legal authority that required the state to take additional steps beyond
those it pursued to procure B’s attendance at trial, the state was aware
of her immigration status and desire to return to Guatemala, it kept in
touch with her throughout the pretrial proceedings through P, who
maintained contact with B after she left the United States and, at the
state’s request, contacted B three days before trial to inquire if she
would be willing to return, and, as it was highly unlikely that any addi-
tional efforts by the state would have succeeded in convincing B to
return voluntarily, this court was not convinced that the state was
required to expend any and all available resources to eliminate the
complex challenges posed by her immigration status or to extend logisti-
cal and financial incentives to induce her return to Connecticut; more-
over, despite the defendant’s unavailing assertion that, even if B had
been properly found to be unavailable, the admission of the deposition
transcript violated his rights to confrontation and due process, the defen-
dant had an unfettered opportunity to confront B at the deposition, which
was taken under agreed upon parameters and the direct supervision of
a judge who did nothing to restrict the defendant’s cross-examination
of her, B was under oath and subject to the penalty of perjury, the
videotape of the deposition reflected her demeanor, the state made no
objections to her testimony, and, to the extent that impeachment evi-
dence existed, the defendant declined to present it at trial when given
the opportunity to do so; furthermore, any potential that B’s examination
at trial might have differed from her deposition testimony or that the
defendant might later have become privy to additional information to
utilize during cross-examination was speculative and not a basis on
which to conclude that his confrontation rights were violated.
2. The defendant could not prevail on his unpreserved claim that his convic-
tion of attempted murder and assault in the first degree violated the
constitutional prohibition against double jeopardy, which was based on
his assertion that he was punished twice on the same evidence for the
same offense against the same victim, B: because attempted murder
requires intent to cause the death of the victim, which is not an element
of assault in the first degree, and assault in the first degree requires
serious injury to the victim with a deadly instrument, which are not
elements of attempted murder, those crimes are not the same offense
for purposes of double jeopardy, nor can assault in the first degree be
a lesser offense included within attempted murder; moreover, although
the operative information charged attempted murder and assault in the
first degree in separate and distinct counts, nothing in the language of
those counts could be construed as evincing any intent by the state to
charge the defendant in the alternative, as the charges were not pursued
by the state in an alternative manner, nor was such a theory discussed
in closing argument, and the defendant requested no instruction, nor
did the court give any instruction to the jury, indicating that it should
consider the charges only as standing in a greater-lesser relationship;
furthermore, the defendant’s failure to raise his double jeopardy claim
at trial belied any indication that the double jeopardy claim was obvious
on the face of the information or in the manner in which the case was
charged, and the defendant advanced nothing from which to discern
any legislative intent to preclude the prosecution of a criminal defendant
for both attempted murder and assault in the first degree.
Argued October 20, 2020—officially released April 27, 2021
Procedural History
Substitute information charging the defendant with
the crimes of murder, attempt to commit murder,
assault in the first degree and risk of injury to a child,
brought to the Superior Court in the judicial district of
Fairfield and tried to the jury before Russo, J.; verdict
and judgment of guilty, from which the defendant
appealed. Affirmed.
Naomi T. Fetterman, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Joseph T. Corradino, state’s
attorney, John C. Smriga, former state’s attorney, and
Emily D. Trudeau, assistant state’s attorney, for the
appellee (state).
Opinion
PRESCOTT, J. The defendant, Oscar H., appeals from
the judgment of conviction, rendered following a jury
trial, of murder in violation of General Statutes § 53a-
54a (a), attempt to commit murder in violation of Gen-
eral Statutes §§ 53a-49 and 53a-54a (a), assault in the
first degree in violation of General Statutes § 53a-59 (a)
(1), and risk of injury to a child in violation of General
Statutes § 53-21 (a) (1). The defendant claims that (1)
the trial court improperly determined that the surviving
assault victim, B, was unavailable to testify at trial and,
on the basis of that determination, admitted B’s prior
deposition testimony into evidence in violation of our
rules of evidence and his constitutional rights to con-
frontation and due process, and (2) his conviction of
both attempted murder and assault in the first degree
violated the constitutional prohibition against double
jeopardy because each crime was predicated on the
same act and against the same victim, B.1 We disagree
with both claims and, accordingly, affirm the judgment
of the court.
The jury reasonably could have found the following
facts on the basis of the evidence admitted at trial.
The defendant and N began a romantic relationship
sometime in 2006 or 2007. In 2010, they had a child
together, S. The defendant, N, and S lived together in
a small basement apartment in Bridgeport.
In January, 2017, approximately one month before
the events at issue, N spoke to her mother, L, about
problems in her relationship with the defendant. Specif-
ically, she complained that the defendant had been
increasingly acting jealous and was following her. N
asked L to speak with the defendant on her behalf. N
told her mother, ‘‘I can’t stand him anymore,’’ and that
she wanted to leave him. When L spoke to the defendant
soon thereafter, he told L that S had been saying things
to him about N that led him to believe that N was
cheating on him with another man.
On February 10, 2017, N’s friend and coworker, B,
who recently had broken up with a boyfriend with
whom she had been living, moved into the Bridgeport
apartment with N and the defendant. B and N worked
together cleaning houses in Fairfield and Westport. B,
like N, had been born in Guatemala, and she had come
to the United States in 2013 as an undocumented immi-
grant.
On February 16, 2017, N, N’s sister, the defendant,
and B attended a baby shower for one of the defendant’s
relatives. During the shower, N’s sister had a private
conversation with the defendant. The defendant told
N’s sister that N wanted ‘‘to split from him’’ but that
‘‘he could not be separated from [N] because [N] was
the love of his life.’’
for the day, N and B picked up S from her school. The
three of them then picked up the defendant from his
place of work in Norwalk. The defendant told them
that he needed to visit one of his sons,2 who was in a
hospital in Greenwich. The defendant dropped off N,
B, and S at L’s house in Stamford while he went to visit
with his son. When the defendant picked them up to
return to Bridgeport, he had ‘‘a bag with beer in it.’’ He
drank one beer while he drove back to the Bridgeport
apartment. Once at the apartment, the defendant drank
three or four more beers, and N and B drank ‘‘Michela-
das,’’ a mixture of beer and Clamato juice.
Later in the evening, N saw a posting on Facebook
indicating that a female friend was at a local club, and
N and B discussed joining her. After N obtained ‘‘permis-
sion’’ from the defendant to go, N and B left, still dressed
in the clothes they had worn to work that day. At least
three other female friends were at the club when B and
N arrived, and N bought ‘‘a bucket of beers,’’ which
amounted to one beer for each of the women. The
women danced and sang karaoke. While they were at
the club, the defendant made at least two video calls
to N, asking her to move her phone around so that he
could see who was with her at the club. B and N stayed
at the club for between one and one and one-half hours
before returning to the apartment at about 1 a.m.
Although the defendant and N seemed to be getting
along at first, while B was in the bathroom getting ready
for bed, she heard N scream for her help. She came
out of the bathroom to find the defendant holding N
by her hair with a knife to her neck.3 After cutting N’s
throat, the defendant attacked B, stabbing her in the
lower back. B begged the defendant not to kill her
because she had children who needed her support, but
the defendant stabbed her in the neck. B held her breath
while the defendant kicked her and N to see if they
were alive. Convinced that neither was breathing, he
went into the bathroom to wash the victims’ blood off
himself in the shower.
After showering and changing his clothes, the defen-
dant retrieved S, who was asleep in her bedroom, and
fled the apartment, necessarily passing through the
bloody crime scene in the living area. When she heard
the door of the apartment close, B, who was still alive,
dragged herself toward the door so that she could yell
for help from the landlords who lived upstairs. The
landlords heard B calling out and came downstairs to
investigate.4 They observed N’s body lying on the floor
and called 911.
Officer Phillip Norris arrived on the scene at approxi-
mately 2:55 a.m. in response to a dispatch call. He
observed N and B lying on the floor, both badly injured.
N was not visibly breathing, but B was moving. When
paramedics arrived several minutes later, they deter-
mined that N was deceased.5 They transported B to a
hospital by ambulance. B told one of the paramedics
that she had been ‘‘stabbed with a kitchen knife.’’6
As part of their investigation to locate the defendant,
the police learned from N’s sister that the defendant
had mentioned to her that he might go to his sister’s
house in Texas if he and N ever separated. The police
issued an Amber Alert for the defendant and S that
included a description of the defendant’s Hyundai
Sonata, its license plate number, and an indication that
the defendant might be heading south out of the state.7
Pennsylvania State Police received the Amber Alert as
well as information that the defendant’s cell phone had
been found in Altoona, Pennsylvania. Officers were
directed to take up positions along several of Pennsylva-
nia’s interstate highways. At approximately 11 a.m.,
Pennsylvania police observed a vehicle matching the
description of the vehicle described in the Amber Alert
and initiated a traffic stop. The defendant initially com-
plied with orders given by the police via their vehicle’s
public address system to open his car door and put
his hands through the window. He did not comply,
however, with their subsequent order that he exit the
vehicle. Rather, he abruptly closed his door and sped
away. A high speed chase ensued for approximately
five miles, ending with the defendant crashing his car
into the back end of a tractor trailer. The defendant
was rendered unconscious by the crash. S was found
crying in the backseat of the vehicle. The police took
the defendant into custody and transported him to a
hospital via ambulance.
As part of their investigation of the crime scene, the
police found two knives in the Bridgeport apartment.
One of the knives was located underneath N’s hand.
Although she was not holding the knife, her thumb was
resting on the knife’s handle.8 A forensic analysis of the
knives revealed that the defendant’s DNA profile was
included in a sample taken from the hilt of one knife
and could not be eliminated as a contributor to a sample
collected from the handle of the other knife.
The state charged the defendant in a four count
amended information.9 Count one charged the defen-
dant with murdering N. Counts two and three were
directed at the defendant’s acts against B, accusing him
of attempted murder and assault in the first degree with
a dangerous instrument. Specifically, count two of the
information alleged that the defendant, ‘‘with intent to
cause the death of [B], did stab and attempt to cause
the death of [B] . . . .’’ Count three alleged that, on
the same date, time, and location referred to in count
two, the defendant, ‘‘with intent to cause serious physi-
cal injury to [B], did cause serious physical injury to
[B] with a dangerous instrument, to wit: a knife . . . .’’
Count four accused the defendant of risk of injury to
a child.10
The defendant testified on his own behalf at trial,
essentially claiming that the two women had been intox-
icated, they had attacked each other with knives, and
he had not intentionally harmed either woman but had
struggled to take a knife from B after she had attacked
him. He also claimed that he had fled with S from the
apartment to shield her from the bloody aftermath of
the event.11 The jury apparently did not credit the defen-
dant’s version of events, finding him guilty of all
charges. The court sentenced the defendant to a total
effective term of seventy-five years of incarceration.12
This appeal followed. Additional facts and procedural
history will be set forth as needed.
I
The defendant first claims that the court improperly
admitted into evidence a videotape and transcript of
the pretrial deposition testimony of B, who did not
testify at trial. Specifically, the defendant argues that the
court improperly determined that B was unavailable, a
foundational prerequisite for the admission of former
testimony under our rules of evidence and to comport
with constitutional rights of confrontation and due pro-
cess. We are not persuaded by the defendant’s argu-
ments.13
The following additional facts and procedural history
are relevant to this claim. On June 19, 2017, the defen-
dant entered a plea of not guilty and elected a jury
trial. On September 27, 2017, the state filed a motion
to advance the time of trial. The state argued in its
motion, inter alia, that B, who was the sole living eyewit-
ness to the charged crimes, was not a citizen of the
United States and had expressed a desire to return to
her home country, which would put her beyond the
reach of the state’s subpoena power.14 The state
asserted that the advancement of the trial would ‘‘not
work an unfair hardship on the defendant and [would
be] in the interest of justice’’ because B’s unavailability
as a witness would ‘‘work a substantial hardship upon
the state and result in a miscarriage of justice.’’ At a
hearing on the state’s motion, the defendant objected
on the grounds that he had not had sufficient time to
meet with his defense attorney and the defense lacked
information regarding tests being performed on evi-
dence at the state laboratory. The court, Devlin, J.,
granted the motion on October 4, 2017, but indicated
that the trial date would not be set until after all relevant
laboratory tests were completed.
On October 17, 2017, the state filed a motion pursuant
to Practice Book § 40-44 asking the court to issue a
subpoena for B to appear for a deposition. In that
request, the state indicated that B’s testimony would
be necessary at trial. It further stated that B was not a
citizen of the United States, but a native of Guatemala,
and that she had ‘‘expressed an intention of imminent
return there, thus rendering herself beyond the reach
of the state’s subpoena power.’’ According to the state,
B was unable to work due to the serious nature of the
injuries she had sustained. Furthermore, B purportedly
was the mother of four children in Guatemala ‘‘who
have previously been cared for by her father, who is
no longer capable of doing so.’’ Initially, the defendant
did not oppose the taking of the deposition but later
raised a number of objections, primarily concerning
difficulties pertaining to defense counsel’s schedule in
other matters and the need for Spanish speaking inter-
preters for both the defendant and B. The court never-
theless granted the state’s motion and scheduled the
deposition.
The court, Pavia, J., judicially supervised the taking
of B’s deposition, which was conducted in court on
November 21, 2017. The deposition was videotaped in
accordance with agreed upon procedures and recorded
for transcription by a court monitor. During the deposi-
tion, B testified that the defendant had stabbed her and
N. The court, at the request of the defendant, took a
recess after B’s direct testimony to provide defense
counsel with an opportunity to discuss B’s testimony
with the defendant. Following the recess, the defendant
had an opportunity to thoroughly cross-examine B
about her direct testimony. The court did not place any
restrictions on the cross-examination.
At trial, the state presented testimony from Lorely
Peche, a family and school services director at Building
One Community, an organization that provides immi-
grant support services. Peche had acted as a conduit
for B with both the state’s attorney’s office and the
Office of the Victim Advocate because B spoke no
English. According to Peche, at the state’s request, she
had spoken with B about the trial three days prior.
Peche stated that B was in Guatemala and that she
spoke with B about her willingness to return to testify.
B indicated to Peche that she did not have the ability
to get documentation to return to the United States and
that she would not voluntarily return to Connecticut
to testify.
On cross-examination, Peche stated that she had spo-
ken with B at least once a month since she had left the
country, which was shortly after her deposition, and
that B had left voluntarily. When asked by defense coun-
sel if she was aware of any program that allowed undoc-
umented immigrants to remain in the country because
of their status as a crime victim, Peche answered that
she did not know of any such program. She stated that
she had B’s current phone number in Guatemala and
had provided that information to the Office of the Victim
Advocate.
The following day, the state offered B’s videotaped
deposition testimony as a full exhibit under the former
testimony exception to the hearsay rule. It asked the
court to find, on the basis of Peche’s testimony, that B
was unavailable because she was in Guatemala and
there was no compulsory process available to the state
to bring her to Connecticut, noting that the out-of-state
subpoena statute applied only to individuals in the
United States. The prosecutor represented to the court
that B had left the United States because she could no
longer work and because she had family in Guatemala
who could support and care for her. The state took the
legal position that, because B had stated on more than
one occasion that she would not return to the United
States, and the state had no legal means to compel her
to do so, she was unavailable.
The defendant argued that the state had failed to
establish B’s unavailability because it had failed to offer
a witness who could represent to the court, ‘‘yes, I know
where [B] is, I have seen her, she is in Guatemala.’’
According to the defendant, Peche was not such a wit-
ness because she had spoken with B only by phone.
The defendant also argued that there was no evidence
that she was forced to leave the country and that ‘‘she
should have been advised [by the state] that she could
not go back [to Guatemala].’’ The defendant provided
no authority that the state had a duty or the power to
keep B from returning to Guatemala.15 Although the
defendant conceded that he had had an opportunity to
cross-examine B at the time she gave her deposition
testimony, the defendant also argued that, ‘‘due process-
wise,’’ his cross-examination of B would have been dif-
ferent if he had had the benefit of other witnesses’ trial
testimony at the time of the deposition.
After reviewing the deposition, the court granted the
state’s request to admit B’s videotaped deposition. The
court expressly found Peche’s testimony credible and
sufficient to establish the fact that B had returned to
Guatemala. The court continued: ‘‘[T]he Connecticut
Code of Evidence is basically leaving unavailability to
each court on a case-by-case basis. And the court, after
hearing from [the state], does make the reasonable
inference that she returned to Guatemala, not because
she was uncooperative in any degree; in fact, the court
does believe she was somewhat cooperative, but she
had left for different reasons—different personal rea-
sons other than the advancement of the prosecution of
this case. So, the court does find that her having been
returned to Guatemala voluntarily, and the fact that
she’s beyond the state’s subpoena power and had coop-
erated in part, the court does find that the state has
met its burden of demonstrating unavailability.’’ The
court also found that the state had met its burden of
establishing the two additional foundational elements
necessary under § 8-6 of the Connecticut Code of Evi-
dence,16 concluding that B was deposed on substantially
the same issues as those in the trial, and that the defen-
dant had had a fair opportunity to develop the testimony
being offered.17
We now turn to our discussion of the defendant’s
claim. We begin with pertinent legal principles. Under
our rules of evidence, former testimony by a witness
is not excluded under the hearsay rule if the witness
is unavailable to testify at trial, the former testimony
and current proceedings involve substantially similar
issues, and the opposing party had an opportunity to
question the witness when the former testimony was
elicited. See Conn. Code Evid. § 8-6 (1). Even if this
evidentiary standard is met, however, in a criminal pros-
ecution, the testimony must also pass constitutional
muster.
The right to confront a witness through cross-exami-
nation is fundamental and essential to a fair trial; see
Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13
L. Ed. 2d 923 (1965); but courts recognize an exception
to confrontation rights if a witness is (1) unavailable
at trial and has (2) provided testimony at a prior judicial
proceeding that was subject to cross-examination by
the defendant. See Crawford v. Washington, 541 U.S.
36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (‘‘[w]here
testimonial evidence is at issue . . . the [s]ixth
[a]mendment demands what the common law required:
unavailability and a prior opportunity for cross-exami-
nation’’). Under such circumstances, the former testi-
mony may be admitted without violating the confronta-
tion clause. In other words, a twofold approach is
proper in analyzing an alleged denial of the right to
confrontation by the admission of former testimony;
first, a threshold inquiry into the unavailability of the
witness and, second, an inquiry into the adequacy of
cross-examination of the witness at the first proceeding.
It is the unavailability determination of the court that
the defendant challenges in the present appeal.
In State v. Lebrick, 334 Conn. 492, 506–507, 223 A.3d
333 (2020), our Supreme Court recently had the oppor-
tunity to evaluate the reasonableness of the state’s
efforts to produce a witness for trial and, in so doing,
clarified the appellate standard of review applicable to
the present claim. ‘‘[T]he issues of the unavailability of
the witness and the reasonableness of the [s]tate’s
efforts to produce the witness [under] the [c]onfronta-
tion [c]lause [of] the [s]ixth [a]mendment . . . are
mixed questions of law and fact . . . .’’ (Internal quota-
tion marks omitted.) Id., 506. Accordingly, ‘‘[a]lthough
we are bound to accept the factual findings of the trial
court unless they are clearly erroneous . . . the ulti-
mate determination of whether a witness is unavailable
for purposes of the confrontation clause is reviewed
de novo.’’ (Citation omitted; internal quotation marks
omitted.) Id., 507.
The court in Lebrick reiterated that ‘‘[f]ormer testi-
mony . . . is inadmissible under both our rules of evi-
dence and the confrontation clause unless the state has
made a reasonable, diligent, and good faith effort to
procure the absent witness’ attendance at trial. This
showing necessarily requires substantial diligence. In
determining whether the proponent of the declaration
has satisfied this burden of making reasonable efforts,
the court must consider what steps were taken to secure
the presence of the witness and the timing of efforts to
procure the declarant’s attendance. . . . A proponent’s
burden is to demonstrate a diligent and reasonable
effort, not to do everything conceivable, to secure the
witness’ presence. . . . Indeed, it is always possible,
in hindsight, to think of some additional steps that the
prosecution might have taken to secure the witness’
presence, but the [s]ixth [a]mendment does not require
the prosecution to exhaust every avenue of inquiry, no
matter how unpromising. . . . But if there is a possibil-
ity, albeit remote, that affirmative measures might pro-
duce the declarant, the obligation of good faith may
demand their effectuation.’’ (Citations omitted; empha-
sis in original; internal quotation marks omitted.) Id.,508–509.
Although recognizing that any number of factors may
be relevant to a reasonableness inquiry in a particular
case, our Supreme Court considered the following four
factors, adopted from federal case law,18 in assessing
the reasonableness of the state’s efforts to produce a
missing witness in the context of a criminal trial. See
id., 511–12; id., 513 n.11 (noting that consideration of
other factors relevant to reasonableness inquiry is not
precluded in any particular case). ‘‘First, the more cru-
cial the witness, the greater the effort required to secure
his attendance. . . . Second, the more serious the
crime for which the defendant is being tried, the greater
the effort the [state] should put forth to produce the
witness at trial. . . . Third, [if] a witness has special
reason to favor the prosecution, such as an immunity
arrangement in exchange for cooperation, the defen-
dant’s interest in confronting the witness is stronger.
. . . Fourth, a good measure of reasonableness is to
require the [s]tate to make the same sort of effort to
locate and secure the witness for trial that it would have
made if it did not have the prior testimony available.’’
(Internal quotation marks omitted.) Id., 512.
In Lebrick, the issue before the Supreme Court was
whether the trial court improperly had determined that
a key state’s witness in a felony murder-home invasion
prosecution was unavailable for trial because she had
not been located and, thus, also improperly admitted
her former preliminary hearing testimony in violation
of the defendant’s confrontation clause rights. Id., 503–
504. The defendant in Lebrick had argued at trial that the
state’s efforts to procure the witness’ in-court testimony
were insufficient to meet the evidentiary and constitu-
tional unavailability standard because the state had con-
ducted a far too restrictive electronic search for the
witness’ then current address and phone number, and
had failed to contact relatives, friends, or landlords who
might have had helpful information as to her where-
abouts.19 Id., 503. The trial court had disagreed with the
defendant and implicitly found that the state’s efforts
to locate the witness were sufficient to establish her
unavailability for both evidentiary and constitutional
purposes. Id. This court rejected the defendant’s claim
and affirmed the trial court’s judgment of conviction,
but our Supreme Court, after adopting and applying a
less deferential standard of review than that employed
by this court, agreed with the claim and reversed this
court’s judgment. Id., 504–507, 521.
A majority of the Supreme Court concluded that the
vigor of the state’s efforts to locate the witness was
seriously lacking. Id., 518. The court took issue with
the fact that the state knew it was dealing with a ‘‘crucial
and reluctant witness whose testimony at the probable
cause hearing had to be procured by court order but
nonetheless did not keep apprised of her whereabouts
or begin searching for her until . . . shortly before jury
selection began.’’ Id., 515. The court also was critical
of the efforts of the state’s investigator, noting that,
‘‘[a]lthough [he] knew that [the witness] was a New
York resident, he did not search any New York state
governmental databases to look for routine informa-
tion, such as motor vehicle, social service, housing
court, family court, or child support records. He did
not use the information in his possession about [the
witness’] last known addresses to learn whether she
owned her own home or had a landlord who might have
knowledge of her whereabouts. Nor did he ever ask
anyone else to pursue any of these basic avenues of
inquiry.’’ Id. The court also stated that the state’s investi-
gator unnecessarily limited his electronic search to
databases that contained ‘‘relatively narrow categories
of information’’ rather than a more expansive ‘‘basic
Google search engine’’ or ‘‘any of the most popular
social media sites, such as Facebook.’’ Id.The court also took issue with the state’s ‘‘ground
efforts,’’ describing them as ‘‘equally anemic.’’ Id., 517.
Specifically, the court noted that the state’s investigator,
after forwarding the addresses he had found to the
district attorney’s office in New York City to facilitate
service of an interstate summons, never spoke with the
district attorney’s office or requested that anyone in
New York ‘‘undertake any investigative efforts, knock
on doors, talk with neighbors, locate a landlord, follow
any leads, or conduct the most minimal surveillance.’’
Id. The court further criticized the efforts of the district
attorney’s investigator, noting that his visits all had
occurred during ‘‘normal working hours, when most
people with a nine-to-five job would not be expected to
be at home.’’ Id. The state’s investigator never requested
that the district attorney’s investigator do any follow-
up visits after he reported his initial lack of success.
Id., 518.
Finally, in evaluating the reasonableness of the state’s
efforts to locate the witness in light of the four factors
relevant in criminal cases, our Supreme Court con-
cluded that all but one favored the defendant, noting
that (1) the witness’ prior testimony had provided the
state with ‘‘crucial, inculpatory evidence regarding the
defendant’s role in the commission of the crimes,’’ (2)
the crimes for which the defendant was charged were
extremely serious, especially the charge of felony mur-
der, which carried a potential sentence of imprisonment
for twenty-five years to life; id., 514; and (3) it was
unable to ‘‘conclude that the state’s efforts to locate
[the witness] were as vigorous as they would have been
if it [had] no preliminary hearing testimony to rely [on]
in the event of unavailability.’’ (Internal quotation marks
omitted.) Id., 515. Only the third of the four factors
favored the state because the witness had no particular
reason to favor the prosecution. Id.In arguing the present claim, the defendant leans into
the Lebrick decision as generally requiring significant
vigor on the part of the state to procure the attendance
of a witness at trial before the state may rely on that
witness’ unavailability as a basis for admitting the wit-
ness’ former testimony. The Lebrick decision, however,
primarily concerned the scope of the state’s efforts to
obtain the current contact information for a witness
who was living in a neighboring state and whose atten-
dance readily and legally could have been compelled
by way of an interstate warrant if the state had made
reasonably diligent efforts to find her. By contrast, the
present case is concerned with what efforts the state
must take to secure the attendance at trial of a witness
whose whereabouts are known, but who has indicated
a refusal to voluntarily appear and is outside the sub-
poena powers of the prosecuting authority. Courts that
have considered what constitutes due diligence on the
part of the state under these latter circumstances have
not required the state to go beyond a good faith inquiry
as to the witness’ intentions to attend trial in order to
establish a witness’ unavailability.
More directly on point with the facts of the present
case is this court’s decision in State v. Morquecho, 138
Conn. App. 841, 54 A.3d 609, cert. denied, 307 Conn.
941, 56 A.3d 948 (2012). In Morquecho, this court
affirmed the trial court’s determination regarding the
unavailability of a witness located in Ecuador and its
conclusion that the state had made reasonable efforts
to secure the witness’ attendance at trial.20 Id., 862. As
in the present case, the defendant in Morquecho was
facing a murder charge. Id., 842. A key witness had
returned to Ecuador. Id., 856. At trial, the state sought
to admit the witness’ former testimony from a probable
cause hearing. Id., 855. To establish that the witness
was unavailable for trial and that the state had made
reasonable efforts to procure the witness’ attendance,
the state presented the testimony of an investigator
with the Office of the State’s Attorney who testified on
the basis of her search that the witness was in Ecuador,
although she did not testify that the state had either a
current address or telephone number for the witness.
Id., 855–56. The state also called a police detective who
testified that, ‘‘to his knowledge, sometime after [the
witness] testified at the probable cause hearing, he
returned to Ecuador and remained in that country. . . .
[A]pproximately six months earlier, in connection with
[an] earlier trial, he obtained [the witness’] telephone
number in Ecuador from [his] mother and that he spoke
with [the witness]. . . . [H]e told [the witness] that his
testimony at trial was crucial and asked [him] to return
to Connecticut but [the witness] indicated that ‘[h]e
was not going to come back’ and that ‘he had no interest
in coming back . . . .’ Nonetheless, [the witness] asked
[the detective] to advise him as to the outcome of the
trial.’’ Id., 856. The detective also testified that ‘‘he did
not speak to [the witness] after that conversation and
did not speak to him in connection with the present
trial.’’ Id. Finally, the detective testified that ‘‘the state
provided transportation and immigration assistance to
two other witnesses who were living abroad . . . to
ensure their presence at the trial.’’ Id.
After the court initially ruled that the state had failed
to establish the witness’ unavailability, the state called
the witness’ mother to testify. She testified that ‘‘[the
witness] was in Ecuador, she spoke with [him] two
weeks earlier and [he] did not want to return to Con-
necticut. . . . [H]e did not want to return to Connecti-
cut because of concerns about what the defendant
would do to him if he was released from prison.’’ Id.,
857. The state also presented testimony from a different
police detective who stated that, ‘‘two weeks earlier,
with the assistance of a Spanish speaking police officer,
he contacted [the witness] in Ecuador and tried to con-
vince him to return to Connecticut. [The witness]
refused. . . . [I]n the weeks prior to trial, the police
left several messages for [the witness], but he did not
respond to these messages.’’ Id.
The prosecutor renewed his request to admit the
former testimony of the witness. In arguing that the
state had made reasonable efforts to procure the wit-
ness’ in-court testimony, the prosecutor made a repre-
sentation to the court that, ‘‘although the state had
provided travel assistance to two other witnesses after
they had expressed a willingness to return to Connecti-
cut for the trial, [this witness] had not expressed such
willingness. The prosecutor [further] represented: ‘I
don’t think there’s any reason to presume that, had . . .
[the witness] wanted to come back, that the state would
not have [arranged for his transportation to and accom-
modations in Connecticut].’’ (Emphasis added.) Id., 858.
The trial court ruled that the state had met its burden
of demonstrating the unavailability of the witness and
admitted the testimony from the probable cause hear-
ing. Id.
On appeal, the defendant in Morquecho argued that
the state’s efforts to procure the witness for trial was
‘‘less than diligent’’ because ‘‘the state merely located
[the witness] and took at ‘face value’ his representation
that he would not return to testify.’’ Id., 858–59. In affirm-
ing the trial court’s ruling that the state had made
diligent and reasonable efforts, this court noted that
the record established ‘‘that persons, on behalf of the
state, determined [the witness’] whereabouts, con-
ducted research to ensure that he was not in the
United States, spoke with him about the importance
of his presence at trial and directly inquired if he would
return to testify. These efforts were made until the
eve of trial.’’ Id., 861. This court expressly rejected the
defendant’s arguments that ‘‘the state conceivably could
have done more to secure [the witness’] attendance
by providing travel and immigration assistance to [the
witness], taking steps to ensure that [the witness] did
not leave the country prior to trial and providing protec-
tion to [the witness] during his stay in Connecticut,’’
and that ‘‘the state undertook greater efforts to secure
the presence of other state witnesses who were living
abroad.’’ Id.
The United States Supreme Court also has considered
for purposes of establishing the unavailability of a wit-
ness in a criminal trial what constitutes reasonable and
diligent efforts to procure the attendance of a witness
whose location may be known but who is purportedly
outside the jurisdiction of the prosecuting authority’s
subpoena powers. See Barber v. Page, 390 U.S. 719,
724–25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); see also
Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L.
Ed. 2d 293 (1972). We believe a discussion of these cases
is instructive.
In Barber v. Page, supra, 390 U.S. 719, a habeas corpus
petitioner who had been convicted in Oklahoma of
armed robbery claimed that his constitutional right to
confrontation had been violated at his criminal trial
because the evidence establishing his guilt primarily
consisted of former testimony by a witness at a prelimi-
nary hearing that was admitted despite the fact that the
witness did not testify in person at trial because he was
not within the jurisdiction of the state but in a federal
prison in Texas. Id., 720. The Supreme Court indicated
that the only effort made by the state to obtain the
witness’ presence at trial was ‘‘to ascertain that he was
in a federal prison outside Oklahoma.’’ Id., 723. The
court recognized that ‘‘various courts and commenta-
tors have heretofore assumed that the mere absence
of a witness from the jurisdiction was sufficient ground
for dispensing with confrontation on the theory that it
is impossible to compel his attendance, because the
process of the trial [c]ourt is of no force without the
jurisdiction, and the party desiring his testimony is
therefore helpless.’’ (Footnotes omitted; internal quota-
tion marks omitted.) Id. The Supreme Court, however,
rejected the ‘‘accuracy of that theory,’’ because ‘‘it is
clear that at the present time increased cooperation
between the [s]tates themselves and between the
[s]tates and the [f]ederal [g]overnment has largely
deprived it of any continuing validity in the criminal
law.’’ The court noted that federal courts could issue
appropriate writs at the request of state prosecutorial
authorities and that the United States Bureau of Prisons
had a policy to allow federal prisoners ‘‘to testify in
state court criminal proceedings pursuant to writs of
habeas corpus ad testificandum issued out of state
courts.’’ Id., 724. Because the state in Barber had made
absolutely no effort to obtain the witness’ attendance
at trial by means of legal procedures and processes
available to the state, the Supreme Court held that the
prosecution had failed to establish the incarcerated wit-
ness’ unavailability. Id., 725; id. (‘‘[S]o far as this record
reveals, the sole reason why [the witness] was not pres-
ent to testify in person was because the [s]tate did not
attempt to seek his presence. The right of confrontation
may not be dispensed with so lightly.’’).
Four years later, in Mancusi v. Stubbs, supra, 408
U.S. 204, the Supreme Court discussed its holding in
Barber v. Page, supra, 390 U.S. 719, distinguishing its
holding in the context of a witness who was not simply
in another state but, rather, was a foreign citizen living
outside the United States. Specifically, in Mancusi, the
habeas corpus petitioner had claimed that his murder
conviction following a retrial in Tennessee was
obtained in violation of his confrontation rights and
thus should not have been considered for sentencing
purposes in a subsequent criminal proceeding in New
York. Mancusi v. Stubbs, supra, 205. At the petitioner’s
retrial on the murder charges, the prosecution had
sought to have a key prosecution witness who had
testified at the petitioner’s first trial declared unavail-
able in order to admit the witness’ former testimony.
To demonstrate unavailability, the state offered the tes-
timony of the witness’ son that the witness, a naturalized
American citizen, had left the country and become a
permanent resident of Sweden. The trial court granted
the state’s request, and the witness’ former testimony
was read to the jury. The petitioner was convicted of
murder a second time. Id., 207–209.
The United States Supreme Court concluded that the
petitioner’s right of confrontation was not violated by
the admission of the witness’ former testimony because
the witness was unavailable. The Supreme Court distin-
guished the present situation from Barber, in which it
had concluded that the state had failed to demonstrate
reasonable efforts to secure the witness’ attendance by
simply relying on his absence from the boundaries of the
prosecuting state without any effort to use appropriate
federal writs or other legal means. Id., 212. Unlike in
Barber, the witness in Mancusi was not just outside
the state but was a resident of another country. Id.,
211. Whereas, in Barber, the state had available legal
procedures to secure the witness’ attendance, the court
in Mancusi noted that ‘‘[t]here have been . . . no cor-
responding developments in the area of obtaining wit-
nesses between this country and foreign nations.’’ Id.,
212. The court also noted that, under existing case law
and federal statutes, there was no right to subpoena a
United States citizen residing in a foreign country for
testimony in a state felony trial. Id., 211–12. The
Supreme Court did not indicate that, to meet its burden
of establishing unavailability, the state was required
to make any additional efforts either to coerce or to
incentivize the witness’ return to the United States.
Rather, the court stated: ‘‘Upon discovering that [the
witness] resided in a foreign nation, the [s]tate of Ten-
nessee, so far as this record shows, was powerless to
compel his attendance at the second trial, either
through its own process or through established proce-
dures depending on the voluntary assistance of another
government.’’21 Id., 212.
As observed by the Supreme Court of California in
discussing the Mancusi holding: ‘‘Subsequent to Man-
cusi, the Supreme Court stated in Ohio v. Roberts, [448
U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled
in part by Crawford v. Washington, 541 U.S. 36, 124 S.
Ct. 1354, 158 L. Ed. 2d 177 (2004)], that ‘if there is
a possibility, albeit remote, that affirmative measures
might produce the declarant, the obligation of good
faith may demand their effectuation.’ . . . This state-
ment did not alter or detract from Mancusi’s analysis
that when the prosecution discovers the desired witness
resides in a foreign nation, and the state is powerless
to obtain the [witness’] attendance, either through its
own process or through established procedures, the
prosecution need do no more to establish the [witness’]
unavailability.’’ (Citation omitted; emphasis altered.)
People v. Herrera, 49 Cal. 4th 613, 625, 232 P.3d 710,
110 Cal. Rptr. 3d 729, cert. denied, 562 U.S. 942, 131 S.
Ct. 361, 178 L. Ed. 2d 233 (2010). We agree with this
assessment.22
Under existing United States Supreme Court prece-
dent and precedents of other jurisdictions, for purposes
of establishing unavailability, it is sufficient for the state
to demonstrate that a foreign national is outside of any
reasonable legal means to compel attendance, provided
that the state makes inquiry, either itself or through
a reliable third party, as to whether the witness will
voluntarily return to the jurisdiction for trial. See Man-
cusi v. Stubbs, supra, 408 U.S. 204; see also Common-
wealth v. Hunt, 38 Mass. App. 291, 295, 647 N.E.2d
433 (relying on Mancusi for proposition that ‘‘[w]hen
a witness is outside of the borders of the United States
and declines to honor a request to appear as a witness,
the unavailability of that witness has been conceded
because a [s]tate of the United States has no authority
to compel a resident of a foreign country to attend a
trial here’’), review denied, 420 Mass. 1103, 651 N.E.2d
409 (1995). We agree with the defendant that the state
does not meet its burden of demonstrating due diligence
to procure the attendance of a witness for trial simply
by establishing that the witness is a noncitizen who is
not in the United States and outside the state’s subpoena
powers. Rather, the state has a duty to make some
effort to discern whether the witness might voluntarily
appear. See Barber v. Page, supra, 390 U.S. 724 (noting
that ‘‘possibility of a refusal is not the equivalent of
asking and receiving a rebuff’’ (internal quotation marks
omitted)).
We now turn to the present case, in which the record
reflects that the state’s efforts to procure B’s attendance
at trial were neither comprehensive nor exhaustive.
That, however, is not the standard that we must apply.
Rather, the question is whether, in light of all the circum-
stances known, the state acted in good faith and with
due diligence to procure B’s attendance. Our plenary
review of the record, viewed in light of the relevant
legal precedent we have discussed, leads us to conclude
that the court properly concluded that B was unavail-
able for both evidentiary and constitutional purposes.
We begin by noting that all four factors of the nonex-
haustive test cited to and utilized by our Supreme Court
in Lebrick favor the defendant’s position that the state
was required to make all reasonable and good faith
efforts to procure B’s attendance at trial. See State v.
Lebrick, supra, 334 Conn. 511–12. First, B was a crucial
witness for the state because she was the sole eyewit-
ness to the events at issue. Second, the defendant was
charged with extremely serious crimes, including mur-
der and attempted murder. Third, as one of the victims
of the defendant’s crimes, B had a special reason to
favor the prosecution in order to obtain justice for her-
self and her close friend, N. Finally, if B had left the
country prior to the state’s securing her deposition testi-
mony, something that the state took efforts to ensure
did not happen, it is reasonable to presume that the
state would have exhausted available efforts to secure
her attendance at trial. Nonetheless, the defendant has
not provided this court with persuasive legal authority
that reasonable and good faith efforts under the circum-
stances presented necessarily required the state to take
any additional steps beyond those that it pursued.
The record shows that the state was aware of B’s
whereabouts and her immigration status and had kept in
contact with her through Peche throughout the pretrial
proceedings. It was aware of her desire to return to
Guatemala as reflected in its motion to advance the
trial date and to notice her deposition. After she left
the country, Peche maintained contact with B and con-
tacted her at the request of the state to inquire if she
would be willing to return for the trial. The most recent
contact was three days prior to Peche testifying, at
which point she testified that B remained in Guatemala
and, although interested in the outcome of the trial,
refused to return to testify. The court found Peche’s
testimony to be credible.
It is reasonable to infer from the record before the
court that, in the absence of some legal means to compel
B’s attendance, it was highly unlikely that any addi-
tional efforts on the part of the state would have been
successful in convincing B to return voluntarily. She
could no longer do the work she had been doing in the
United States because of her injuries, and she needed
to be in Guatemala both to obtain the support of her
family and to take care of her children. Furthermore,
it is well settled that the state need not exhaust all
possibilities in order to satisfy its burden of establishing
the unavailability of a witness, and ‘‘[t]he law does not
require the doing of a futile act. Thus, if no possibility of
procuring the witness exists . . . ‘good faith’ demands
nothing of the prosecution.’’ Ohio v. Roberts, supra, 448
U.S. 74. Accordingly, we are not convinced that the
state was required to expend any and all resources
available to it to eliminate the obvious and complex
challenges posed by B’s immigration status or to extend
logistical and financial incentives to induce her return
to Connecticut. All indications were that such efforts
would have been fruitless.
We conclude that, in light of B’s status as a foreign
citizen located outside the United States, with no indica-
tion in the record or argument by the defendant that
the state had available any legal means to coerce her
return or the cooperation of her home country, and,
under the totality of the circumstances presented, the
state made sufficient efforts in this case, including dis-
cerning whether she would return voluntarily, to estab-
lish B’s unavailability.
To the extent that the defendant makes the additional
claim that, even if the witness were properly found to
be unavailable, admission of the deposition transcript
was nonetheless violative of his confrontation rights
because he did not have an adequate opportunity to
cross-examine B at the time her deposition was taken,
we summarily reject that claim. ‘‘The central concern
of the [c]onfrontation [c]lause is to ensure the reliability
of the evidence against a criminal defendant by sub-
jecting it to rigorous testing in the context of an adver-
sary proceeding before the trier of fact. . . . The right
of confrontation includes (1) the physical presence of
the witness, (2) the administration of an oath to impress
upon the witness the seriousness of the matter and to
guard against the lie by the possibility of a penalty for
perjury, (3) cross-examination of the witness to aid in
the discovery of truth, and (4) the opportunity for the
jury to observe the demeanor of the witness in making
his statement, thus aiding the jury in assessing his credi-
bility.’’ (Citation omitted; internal quotation marks omit-
ted.) State v. Lebrick, supra, 334 Conn. 510.
As argued by the state, we believe that the circum-
stances of B’s deposition testimony reflect that the
defendant had an unfettered opportunity to confront
B that satisfied all the aforementioned elements. B’s
deposition was taken under agreed upon parameters,
in court, under oath, subject to the penalty of perjury,
and with the direct supervision of a judge. The deposi-
tion was videotaped and thus reflected B’s demeanor
while answering questions. The trial court did nothing
to restrict the defendant’s cross-examination of B about
her direct examination, and the state never objected to
a single question or avenue of inquiry. Although the
record reflects that the defendant chose not to use a
potential prior inconsistent statement of B during his
cross-examination, he did so with the understanding
that he would be permitted to use any impeachment
evidence available in the event that the deposition was
admitted at trial due to B’s unavailability. To the extent
that any impeachment evidence existed, however, the
defendant declined to present it when he was given an
opportunity to do so at trial.
Finally, we agree with the state that any potential
that B’s examination at trial might have differed from
her deposition testimony or that the defendant might
later have become privy to additional information to
utilize during his cross-examination is speculative and
not a basis to conclude that his rights of confrontation
were violated. See State v. Crump, 43 Conn. App. 252,
264, 683 A.2d 402 (‘‘[There is] no authority, under either
[the federal or state] constitution, for the proposition
that any particular type of cross-examination, as to
duration or content, is a requirement that must be satis-
fied before that prior testimony may be admissible.
Neither the state nor federal guarantees of the right of
confrontation require that a witness be present at trial
for an actual cross-examination in order to admit prior
testimony given under oath. . . . The test is the oppor-
tunity for a full and complete cross-examination rather
than the use made of that opportunity.’’ (Internal quota-
tion marks omitted.)), cert. denied, 239 Conn. 941, 684
A.2d 712 (1996).
For the foregoing reasons, we reject the defendant’s
claim that the court improperly admitted B’s prior depo-
sition testimony into evidence in violation of our rules
of evidence and his constitutional rights to confronta-
tion and due process.
II
The defendant also claims that his dual conviction
of attempted murder and assault in the first degree,
each of which was factually predicated on his having
stabbed B, violated the constitutional prohibition
against double jeopardy because, as a result of the
court’s having permitted his conviction of both charges
to stand, he effectively has been punished twice on
the same evidence for the same offense. Although the
defendant acknowledges that this claim was never
raised before the trial court and, thus, is unpreserved, he
nevertheless seeks appellate review pursuant to State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified in In re Yasiel R., 317 Conn. 773, 781,
120 A.3d 1188 (2015).23 We conclude that the claim is
reviewable under Golding because it is of constitutional
magnitude and the record is adequate for review. We
conclude, however, that the defendant cannot demon-
strate the existence of a constitutional violation, and,
thus, his claim fails under the third prong of the Golding
analysis.24
‘‘The double jeopardy clause of the fifth amendment
to the United States constitution provides: [N]or shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb . . . . This constitutional
provision is applicable to the states through the due
process clause of the fourteenth amendment. . . . The
Connecticut constitution provides coextensive protec-
tion, with the federal constitution, against double jeop-
ardy. . . .25 This constitutional guarantee serves three
separate functions: (1) It protects against a second pros-
ecution for the same offense after acquittal. [2] It pro-
tects against a second prosecution for the same offense
after conviction. [3] And it protects against multiple
punishments for the same offense [in a single trial].’’
(Citations omitted; footnote added; footnote omitted;
internal quotation marks omitted.) State v. Ferguson,
260 Conn. 339, 360–61, 796 A.2d 1118 (2002). In the
present appeal, the defendant’s claim implicates the
last of these three functions.
‘‘The double jeopardy analysis in the context of a
single trial is a two part 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. . . . With respect to cumula-
tive sentences imposed in a single trial, the [d]ouble
[j]eopardy [c]lause does no more than prevent the sen-
tencing court from prescribing greater punishment than
the legislature intended. . . . [T]he role of the constitu-
tional guarantee [against double jeopardy] is limited to
assuring that the court does not exceed its legislative
authorization by imposing multiple punishments for the
same offense. . . . On appeal, the defendant bears the
burden of proving that the prosecutions are for the same
offense in law and fact.’’ (Citations omitted; emphasis
added; internal quotation marks omitted.) Id., 361.
With respect to the first part of this two part process,
‘‘it is not uncommon that we look to the evidence at trial
and to the state’s theory of the case . . . in addition
to the information against the defendant, as amplified
by the bill of particulars. . . . If it is determined that
the charges arise out of the same act or transaction,
then the court proceeds to [part two of the analysis],
where it must be determined whether the charged
crimes are the same offense. . . . At this second step,
we [t]raditionally . . . have applied the Blockburger
test26 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 violation 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 [that]
the other does not.27 . . . In applying the Blockburger
test, we look only to the information and bill of particu-
lars—as opposed to the evidence presented at trial—
to determine what constitutes a lesser included offense
of the offense charged.’’ (Citations omitted; footnotes
added; internal quotation marks omitted.) State v. Por-
ter, 328 Conn. 648, 662, 182 A.3d 625 (2018).28 Stated
differently, only ‘‘[i]f the elements of one offense as
defined by the statute include the elements of a lesser
offense; or if one offense is merely nominally distinct
from the other’’ will double jeopardy attach. State v.
McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982).
The state does not dispute seriously the defendant’s
assertion that his conviction of both counts arose from
the same act or transaction.29 As the defendant correctly
notes, with respect to the charges of attempted murder
and assault in the first degree, the information alleged
that those crimes involved the same victim, B, and had
occurred on the same date, at the same time and at the
same location. For purposes of our analysis, we will
assume without deciding that the first step of the double
jeopardy analysis is met and proceed directly to the
second step of the analysis to determine if the charged
crimes each contain a statutory element that the other
does not. The state asserts that they do and cites to
State v. Sharpe, 195 Conn. 651, 655, 491 A.2d 345 (1985),
as controlling precedent holding that punishment for
both assault in the first degree and attempted murder
in the same prosecution does not violate double jeop-
ardy. We agree with the state.
We begin by comparing the statutory elements of
attempted murder and assault in the first degree to
determine if each offense contains an element not con-
tained in the other. Section 53a-49 provides in relevant
part: ‘‘(a) A person is guilty of an attempt to commit a
crime if, acting with the kind of mental state required
for commission of the crime, he . . . (2) intentionally
does . . . anything . . . constituting a substantial
step in a course of conduct planned to culminate in
his commission of the crime. . . .’’ Section 53a-54a (a)
provides in relevant part: ‘‘A person is guilty of murder
when, with intent to cause the death of another person,
he causes the death of such person . . . .’’ Accordingly,
‘‘[a] conviction for attempted murder requires proof
of intentional conduct constituting a substantial step
toward intentionally causing the death of another per-
son.’’ State v. Sharpe, supra, 195 Conn. 655.
By comparison, § 53a-59 (a) provides in relevant part:
‘‘A person is guilty of assault in the first degree when: (1)
With intent to cause serious physical injury to another
person, he causes such injury to such person or to a
third person by means of a . . . dangerous instrument
. . . .’’ Looking at the elements of the two crimes,
attempted murder requires proof that the defendant
intended to cause the death of the victim, which is not
an element of assault in the first degree, which requires
only the intent to cause serious physical injury. Convic-
tion for assault in the first degree requires proof that
the defendant (1) seriously injured the victim (2) with
a dangerous instrument. The state is not required to
prove either of those elements to obtain a conviction
for attempted murder. Mindful that a Blockburger analy-
sis is technical in nature in that it requires us to focus
only on the statutory elements and not on the evidence
adduced at trial to prove those elements, we are com-
pelled to conclude that attempted murder and assault
in the first degree are not the same offense for purposes
of double jeopardy.
Our conclusion is consistent with and controlled by
our Supreme Court’s decision in State v. Sharpe, supra,
195 Conn. 651. In Sharpe, the victim was in a vehicle,
backing out of the driveway of his house, when the
defendant approached the front of the vehicle, carrying
a gun. Id., 653. He first fired a shot into the front of the
vehicle that hit the victim, and then moved around to
the driver’s side of the car and fired five or six additional
shots, further injuring the victim. Id., 653–54. The defen-
dant was charged with both attempted murder in viola-
tion of §§ 53a-49 and 53a-54a (a) and with assault in
the first degree in violation of § 53a-59 (a) (1), each
predicated on his shooting of the victim. Id., 652. The
court denied the defendant’s pretrial motion that sought
the dismissal of either the attempted murder charge or
the assault charge on the grounds that they rose out of
the same transaction and, thus, were ‘‘multiplicitous’’
and violated his right to be free from double jeopardy.
Id., 654, 656 n.3.
On appeal, our Supreme Court rejected the defen-
dant’s double jeopardy claim, holding that it failed
under the Blockburger test. Id., 655–56. The court stated:
‘‘A conviction for attempted murder requires proof of
intentional conduct constituting a substantial step
toward intentionally causing the death of another per-
son. . . . No showing of actual injury is required. Con-
versely, a conviction for assault in the first degree
requires proof that the defendant actually caused seri-
ous physical injury to another person. No showing of
intent to cause death is necessary. Therefore, each
offense requires proof of a fact which the other does
not. Consequently, the statutory violations charged,
attempted murder and assault in the first degree, are
not the same offense for double jeopardy purposes.
This conclusion disposes of the defendant’s argument
that he was subjected to double jeopardy by being pun-
ished twice upon the same evidence and essentially the
same offense. He was not twice punished for the same
crime.’’ (Citation omitted; footnote omitted.) Id.
This court previously has relied on the holding in
Sharpe to reject a claim that charges of attempted mur-
der and assault in the first degree by means of a danger-
ous instrument with respect to the actions of a single
defendant against a single victim in the same transac-
tion are the same offense for double jeopardy purposes
under the Blockburger test. See State v. Glover, 40 Conn.
App. 387, 391–92, 671 A.2d 384, cert. denied, 236 Conn.
918, 673 A.2d 1145 (1996). In Glover, as in Sharpe and
the present case, ‘‘the information charged the defen-
dant with committing both crimes in the same place at
the same time.’’ Id., 391.
Although the defendant attempts to distinguish the
outcome in Sharpe from the present action, his argu-
ments are unavailing. Sharpe remains good law and is
binding authority under the facts of the present case
as it pertains to the defendant’s double jeopardy claim.
The defendant argues that the holding in Sharpe ‘‘can-
not be baldly applied to every double jeopardy claim
premised on concomitant convictions of attempted
murder and assault in the first degree.’’ In support of
this argument, the defendant attempts to attach far too
great significance to language from another case that
relied on Sharpe, suggesting that the outcome of the
Blockburger analysis in that case turned on the defen-
dant’s concession that the attempted murder and
assault were charged as separate offenses rather than
as ‘‘offenses standing in a greater-lesser relationship.’’
State v. Gilchrist, 24 Conn. App. 624, 629, 591 A.2d 131,
cert. denied, 219 Conn. 905, 593 A.2d 131 (1991); see
also State v. McCall, 187 Conn. 73, 91, 444 A.2d 896(1982) (similar concession made by defendant). The
defendant clarifies that, in the present case, he is
expressly asserting that ‘‘the [two] charges . . . stand
in the relation of greater to lesser included offenses.’’
By definition, however, ‘‘[a] lesser included offense
is one that does not require proof of elements beyond
those required by the greater offense.’’ (Internal quota-
tion marks omitted.) State v. Johnson, 316 Conn. 34,
44, 111 A.3d 447 (2015). Because, as we already have
explained, a conviction for assault in the first degree
requires proof of actual serious physical injury whereas
attempted murder requires no such proof, by definition,
assault in the first degree cannot be a lesser included
offense of attempted murder.
Furthermore, the defendant has pointed us to nothing
in the present record that would support the novel legal
theory he advances, which stands counter to traditional
Blockburger analysis. The operative information in this
case charged attempted murder and assault in the first
degree by way of two separate and distinct counts.
Despite the allegations that the crimes were committed
contemporaneously, nothing in the language of those
counts reasonably can be construed as evincing any
intent on the part of the state to charge the defendant
in the alternative. The counts were not pursued by the
state at trial in an alternative manner nor was such a
theory discussed in closing argument. No instruction
was requested by the defendant, nor was any instruction
given to the jury, indicating that it should consider the
charges only ‘‘as standing in a greater-lesser relation-
ship.’’30 Although certainly not dispositive by itself, the
defendant’s failure to raise the double jeopardy claim
that he now advances either by way of a pretrial motion
to dismiss or postconviction belies any implication that
the double jeopardy claim was obvious on the face of
the information or the manner in which the case was
charged.
Because we have concluded that attempted murder
and assault in the first degree are not the same offense
under a traditional Blockburger analysis, the defendant
can only prevail on his double jeopardy claim by making
a showing that the legislature intended to preclude mul-
tiple punishments for those crimes. The defendant, who
has the burden of proof on that issue; State v. Alvaro
F., 291 Conn. 1, 13, 966 A.2d 712, cert. denied, 558 U.S.
882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009); has
advanced nothing from which to discern any legislative
intent to preclude prosecution of a criminal defendant
for both assault in the first degree and attempted mur-
der. The defendant has not directed us to any statutory
language or other evidence from which we could dis-
cern a clear legislative intent to preclude a conviction
as occurred in the present case. Accordingly, the defen-
dant’s double jeopardy claim fails.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to identify the
defendant or others through whom the victim’s identity may be ascertained.
See General Statutes § 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
For clarity, we discuss the defendant’s claims in the reverse order in
which they were briefed.
2
In addition to being the father of S, the defendant was the father of three
other children from relationships with two different women.
3
B testified that she remembered asking the defendant what he was doing
but that she had no further memories of what transpired immediately after
she came upon the defendant and N. Her next recollection of events was
being on the floor with the defendant thrusting something into her lower
back.
4
One of the landlords testified at trial that she was awoken at about 2
a.m. by noises and heard B saying, ‘‘Oscar, no, she’s my friend.’’ She also
reported later hearing the shower running.
5
According to the autopsy report admitted at trial, N was stabbed seven
times in the neck. Her carotid artery was completely severed, causing her
death. The toxicology report showed that she had a blood alcohol content
of 0.142.
6
B suffered substantial injuries to both her neck and abdomen. Many of
the muscles and nerves on the left side of her neck were completely severed.
Her abdominal wound ran from her right kidney past her spine and into
her liver. When she arrived at the hospital, she had lost between 40 and 50
percent of her blood and was in shock. According to her treating physician,
she had a number of severe defensive wounds on both of her hands. The
doctor described her left thumb as ‘‘dangling’’ and her right pinkie finger
as having been ‘‘nearly amputated . . . .’’
7
Norris had removed a photograph of the defendant and S from the
bedroom of the apartment, which was used as part of the information
provided for the Amber Alert.
8
The police observed that a chair also had been placed over N’s body.
9
We note that, although the defendant filed a pretrial motion to dismiss,
he did not raise double jeopardy as an issue in that motion or in his later
oral motions for a judgment of acquittal.
10
The state charged the defendant under the situational prong of the risk
of injury statute. Its theory with respect to that charge was that, given the
bloody and violent incident that transpired in the living area of the small
apartment, there was a grave risk that, if S had awoken and walked out
into the room, she would have been exposed to and potentially endangered
by the defendant’s violent conduct. In addition, by later removing S from
the apartment, the defendant necessarily would have carried her through
the bloody crime scene, exposing her to the risk of psychic harm.
11
According to the defendant’s testimony, N and B were both intoxicated
when they picked him up from work. When they returned to the Bridgeport
apartment after he visited his son, B had initiated the plan to go out and,
although N asked him to join them, he chose to stay home to watch S. The
defendant testified that, when N and B returned from the club, he declined
N’s invitation to drink more beer with them, choosing to listen to music on
his phone in the bedroom. He claimed that, at some point, N called him
into the living room and told him that B had accused him of breaking her
cell phone. He claimed that the three began to argue. When the argument
began ‘‘escalating,’’ N purportedly grabbed his hand to take him to the
bathroom to speak to him away from B, at which point she referred to B
as a slut and accused B of being ungrateful for them allowing her to move
in with them. B allegedly overheard this, including the reference to her
being a slut, and responded that at least she was single whereas N was also
a slut despite living with the defendant. Although the defendant stated that
he construed B’s statement as a confirmation of his belief that N was cheating
on him, he claimed that he saw no point in discussing this with N at that
time because she was intoxicated and, instead, he chose to return to the
bedroom and resume listening to music.
At some point, he claimed, he heard bottles crashing in the living room,
and, when he came out of the bedroom to investigate, he found N ‘‘holding
a knife, she was all bloody—and she was leaning on the stove holding a
knife . . . .’’ According to the defendant, B was standing by the refrigerator
also covered in blood. Despite this purported evidence of a brutal fight
between the two women, the defendant maintained that he never heard any
shouts or screams, only the sound of the bottles crashing. According to the
defendant, he moved toward N to take away the knife but slipped in blood
that was all over the floor. When he fell to the floor, B supposedly first
struck him in the back of the head with a plate or bottle, and then ‘‘threw
herself on top’’ of him. He claims that it was at this point that he realized
that B also had a knife. He allegedly was able to get the knife from B, who
continued to hit him in an effort to get the knife back. According to the
defendant, he was eventually able to repel B, and, when he got to his feet,
he saw N lying on the floor, unresponsive. When he returned his attention
back to B, she also was on the floor and unresponsive. At that time, the
defendant claimed, he looked in on S, who was still sleeping. He claimed
that, when he returned to the living room and found the women still uncon-
scious, he contemplated calling the police but feared they would blame him.
Instead, he decided to take a shower, so that his daughter would not have
to see him covered in blood when he woke her up, and thereafter fled the
apartment. In sum, the defendant denied ever stabbing N, or intentionally
stabbing B, insisting that B had ‘‘injured herself when she was attacking
[him], when [he] had a knife in [his] hand.’’
12
Specifically, the court sentenced the defendant as follows: fifty years
for the murder conviction with a concurrent twenty year sentence on the
attempted murder count; twenty years for the assault conviction, five of
which was a mandatory minimum, to run consecutively to the other senten-
ces; and an additional five year consecutive sentence on the risk of
injury count.
13
The state contends that we should decline to review this claim because,
although the defendant challenged the admission of B’s deposition at trial,
he did so on a different basis than the one advanced on appeal, and, therefore,
the defendant’s claim is unpreserved. According to the state, the defendant’s
objection at trial was limited to the state’s alleged failure to establish that
B actually was in Guatemala. Our review of the trial transcript convinces
us, however, that the defendant’s argument was not so narrowly confined.
Part of the objection raised by the defendant at trial more broadly encom-
passed the state’s general failure to exercise due diligence in securing B’s
trial testimony, which certainly included allegedly doing nothing to verify
her whereabouts. For example, part of the defendant’s argument to the trial
court was that, ‘‘[w]hen the state’s attorney’s office wants individuals to
come back and testify, as the court knows, they can be fairly persuasive
. . . .’’ We construe this as an argument that the state could have done
more to entice B to return voluntarily. Accordingly, we are satisfied that
the present claim was adequately preserved for appellate review.
14
The court concluded that the state lacked the legal authority to subpoena
an individual residing in Guatemala, and the defendant does not challenge
this determination on appeal.
15
The state responded as follows to the defendant’s argument: ‘‘[W]e
actually moved for deposition because we had a reasonable belief, but
nothing firm, that she might not have been—I don’t—I never saw any docu-
ments, is what I’m saying—that she might not have been a citizen of the
United States. In which case, there would have been a possibility that she
could have been made unavailable by some other process. Also, there’s no
obligation for a witness to stay in the country. You know, unless we secured
a material witness warrant against them, and—and lodged them in jail. And
that would be the—the only way that we would do that. And that’s an
unusual procedure.’’
16
Section 8-6 of the Connecticut Code of Evidence provides in relevant
part:
‘‘The following are not excluded by the hearsay rule if the declarant is
unavailable as a witness:
‘‘(1) Former Testimony. Testimony given as a witness at another hearing
of the same or a different proceeding, provided (A) the issues in the former
hearing are the same or substantially similar to those in the hearing in which
the testimony is being offered, and (B) the party against whom the testimony
is now offered had an opportunity to develop the testimony in the former
hearing. . . .’’
The commentary to § 8-6 provides in relevant part: ‘‘The proponent of
evidence offered under Section 8-6 carries the burden of proving the declar-
ant’s unavailability. . . . To satisfy this burden, the proponent must show
that a good faith, genuine effort was made to procure the declarant’s atten-
dance by process or other reasonable means. . . . [S]ubstantial diligence
is required . . . but the proponent is not required to do everything conceiv-
able to secure the witness’ presence. . . . A trial court is not precluded
from relying on the representations of counsel regarding efforts made to
procure the witness’ attendance at trial if those representations are based
on counsel’s personal knowledge. . . .’’ (Citations omitted; internal quota-
tion marks omitted.) Conn. Code Evid. § 8-6, commentary.
17
At the time B was deposed, the parties had agreed that B’s deposition
testimony would be subject to impeachment at trial to the same degree as
if it were live testimony. The state brought this to the trial court’s attention
at the time it ruled on the admissibility of B’s videotaped deposition, stating
as follows:
‘‘[The Prosecutor]: I just would note in passing, for the record, that, under
[§] 8-8 of the Code of Evidence, that impeachment and supporting credibility
of a hearsay declarant may be done to the same extent as if it was live
testimony. So that, for example, inconsistent statements—
‘‘The Court: Inconsistent statement.
‘‘[The Prosecutor]: —and extrinsic impeachment for bias, motive, interest
in the outcome of the case, et cetera, can still be introduced against her; even
though there’s no opportunity to confront her with it, it can be introduced.
‘‘The Court: For the jury’s consideration of that witness.
‘‘[The Prosecutor]: Yes.’’
The defendant did not indicate to the court at that time that he intended
to introduce any impeachment evidence and expressly declined an invitation
to do so after the videotaped testimony was played for the jury.
18
In Lebrick, our Supreme Court instructed that courts in this state, in
considering whether a witness is ‘‘unavailable’’ for purposes of the former
testimony exception to the hearsay rule under our Code of Evidence, should
follow the definition of ‘‘unavailable’’ used by federal courts in the Federal
Rules of Evidence. State v. Lebrick, supra, 334 Conn. 507.
19
The state knew that the witness was a New York City resident, but
when it tried to contact her at about the time that jury selection had begun
to secure her testimony at trial, it was unable to reach her at her last known
address and telephone number. State v. Lebrick, supra, 334 Conn. 500–501.
An investigator for the state unsuccessfully searched several state and fed-
eral databases for a current address or phone number, eventually discovering
two addresses associated with the witness in New York and several phone
numbers. Id. The investigator called the phone numbers, ‘‘but two were
not in service, and one was not receiving phone calls.’’ Id., 501. The state
nonetheless prepared an interstate summons that was sent by e-mail to the
Kings County District Attorney’s Office in New York City. Id. The e-mail
contained the addresses the state had discovered in its electronic search
as well as the last known address of the witness’ mother in Brooklyn, New
York. Id. An investigator with the district attorney’s office attempted to
serve the summons at the addresses provided; he was not tasked with
conducting an independent investigation into the witness’ whereabouts and
did not undertake such a task on his own initiative. Id. The investigator
visited the addresses he was provided, including twice visiting the address
for the witness’ mother but was unable to locate the witness. Id., 501–502.
He also never encountered anyone whom he was able to question regarding
the witness’ location. Id., 502. His attempts to contact the witness by phone
at the numbers provided by the state also proved unsuccessful. Id., 501–502.
20
We are cognizant that the court in Morquecho applied the now defunct
abuse of discretion standard; see State v. Morquecho, supra, 138 Conn.
App. 862; rather than the more exacting plenary review established by our
Supreme Court in Lebrick. See State v. Lebrick, supra, 334 Conn. 507. None-
theless, the court’s discussion in Morquecho remains instructive in evaluating
the state’s efforts in the present case.
21
The Supreme Court in Mancusi granted certiorari from a ruling by the
United States Court of Appeals for the Second Circuit. Mancusi v. Stubbs,
404 U.S. 1014, 92 S. Ct. 671, 30 L. Ed. 2d 661 (1972). The Second Circuit
had stated that the witness’ absence from the United States was not ‘‘per
se a sufficient reason to broaden the exception to the [c]onfrontation [c]lause
allowing the admission of prior testimony of a presently unavailable witness.
Although there is a much greater chance that it will not be possible to bring
before the court a witness residing abroad, the possibility of a refusal is
not the equivalent of asking and receiving a rebuff.’’ (Internal quotation
marks omitted.) United States ex rel. Stubbs v. Mancusi, 442 F.2d 561, 563
(2d Cir. 1971), rev’d, Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L.
Ed. 2d 293 (1972). The Second Circuit’s conclusion that the state had failed
to meet its burden of establishing due diligence appears to have turned on
the fact that the record contained no evidence that the state ever asked the
witness whether he would be willing to voluntarily return and testify. In
reversing the judgment of the Second Circuit, the Supreme Court’s decision
implicitly rejected the Second Circuit’s reasoning that, to establish due
diligence in procuring the attendance of a witness located outside of the
United States, a state cannot solely rely on the witness’ absence but must,
at a minimum, also produce evidence demonstrating that it sought the
witness’ voluntary attendance and that that request was rejected. Neverthe-
less, in the present case, there was testimony presented at trial that the
state had asked Peche to determine on its behalf whether B would be willing
to return and that B had indicated that she would not be willing to return
to the jurisdiction. Accordingly, even the more exacting standard applied
by the Second Circuit would be met in the present case.
22
We note that, since Mancusi was decided, relevant federal statutes have
been amended and now permit a state to seek a subpoena of a United States
citizen residing abroad. See 28 U.S.C. § 1783 (a) (2018). These changes do
not affect Mancusi’s holding, however, with respect to a foreign national,
such as in the present case. In the absence of a treaty or federal statute, a
foreign citizen is simply outside the subpoena power of the state.
23
Golding provides that ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the following conditions are
met: (1) the record is adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . . exists and . . . deprived
the defendant of a fair trial; and (4) if subject to harmless error analysis,
the state has failed to demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omit-
ted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R.,
supra, 317 Conn. 781 (eliminating Golding’s use of ‘‘clearly’’ in describing
requirements under third prong of test).
24
Although, in its appellate brief, the state primarily responds to the merits
of the defendant’s double jeopardy claim, in a lengthy footnote at the end
of its double jeopardy analysis, the state also argues that we should treat
the defendant’s failure to raise his double jeopardy claim at trial as an implied
waiver of any double jeopardy protection. In support of that argument, the
state notes that appellate courts in this state have relied on waiver to resolve
unpreserved double jeopardy claims arising in the context of a successive
prosecution; see, e.g., State v. Ledbetter, 240 Conn. 317, 325–26, 692 A.2d
713 (1997); State v. Belcher, 51 Conn. App. 117, 122–23, 721 A.2d 899 (1998);
but nonetheless have afforded Golding review to unpreserved double jeop-
ardy claims arising in the course of a single trial without providing any
analysis to explain this apparently disparate treatment of similar claims.
See, e.g., State v. Chicano, 216 Conn. 699, 704, 584 A.2d 425 (1990), overruled
in part on other grounds by State v. Polanco, 308 Conn. 242, 61 A.3d 1084(2013); see also State v. Barber, 64 Conn. App. 659, 671, 781 A.2d 464 (‘‘[i]f
double jeopardy claims arising in the context of a single trial are raised for
the first time on appeal, these claims are reviewable’’ (internal quotation
marks omitted)), cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001).
The state also argues in the same footnote that the defendant’s failure to
raise his double jeopardy concern at trial unfairly prejudiced the state and
potentially resulted in an inadequate record for review on appeal because,
if the state had known of the double jeopardy claim at trial, it might have
marshaled the evidence differently or made additional arguments to the
jury. Specifically, the state notes that, given the multiple injuries to B, it
could have argued that ‘‘the defendant initially attacked B with an intent
to inflict serious physical injury and then, prior to thrusting an object in
her neck after she came to on the floor and begged for her life, engaged in
a separate act of attempted murder.’’
As discussed in this part of the opinion, the defendant’s claim fails on its
merits under established precedent and, therefore, he cannot demonstrate
the existence of a constitutional violation as alleged on the basis of the
facts in the record on which he relies. Consequently, we elect not to resolve
these alternative arguments advanced by the state.
25
The Connecticut constitution does not contain an express prohibition
against double jeopardy, but the due process guarantees of article first,
§ 8, of the constitution of Connecticut have been interpreted to include a
protection against double jeopardy. See State v. Michael J., 274 Conn. 321,
349–50, 875 A.2d 510 (2005). The scope of this state constitutional protection
consistently has been construed to mirror, rather than to exceed, the protec-
tion afforded under the federal constitution. Id.26
See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.
Ed. 306 (1932).
27
Both our Supreme Court and the United States Supreme Court have
clarified that the Blockburger test, which also is referred to as the ‘‘same-
elements’’ test, ‘‘inquires whether each offense contains an element not
contained in the other; if not, they are the ‘same offence’ and double jeopardy
bars additional punishment and successive prosecution.’’ (Emphasis added.)
United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 125 L. Ed. 2d 556(1993). In State v. Bernacki, 307 Conn. 1, 21–22, 52 A.3d 605 (2012), cert.
denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013), our Supreme
Court emphasized that it is irrelevant for purposes of a Blockburger analysis
‘‘that the state may have relied on the same evidence to prove that the
elements of both statutes were satisfied’’; id., 21; and that proper application
of the Blockburger test looks at whether ‘‘each statute contains a different
statutory element requiring proof of a fact that the other does not . . . .’’
(Emphasis added.) Id., 22. The court further noted that ‘‘emphasis on the
conduct at issue, rather than purely on the statutory language and charging
instruments, is not consistent with our well established case law holding
that the Blockburger analysis is theoretical in nature and not dependent on
the actual evidence adduced at trial.’’ Id., 21 n.16.
28
As our Supreme Court has stated, the Blockburger test is, at its core,
a rule of statutory construction, and ‘‘because it serves as a means of
discerning [legislative] purpose the rule should not be controlling [if], for
example, there is a clear indication of contrary legislative intent. . . . Thus,
the Blockburger test creates only a rebuttable presumption of legislative
intent, [and] the test is not controlling [if] a contrary intent is manifest. . . .
[If] the conclusion reached under Blockburger is that the two crimes do
not constitute the same offense, the burden remains on the defendant to
demonstrate a clear legislative intent to the contrary.’’ (Citations omitted;
internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 12–13,
966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009).
29
To the extent that the state suggests in a footnote in its brief that the
jury reasonably could have viewed the evidence at trial as supporting a
conclusion that the defendant engaged in separate acts for which separate
punishment would be permissible; see footnote 24 of this opinion; without
additional briefing of the issue, the state’s brief is inadequate to raise any
challenge to whether the defendant’s double jeopardy claim fails under the
‘‘ ‘same act or transaction’ ’’ prong of double jeopardy analysis. See State
v. Ferguson, supra, 260 Conn. 361.
30
The defendant relies on this court’s analysis in State v. Tinsley, 197
Conn. App. 302, 232 A.3d 86, cert. granted, 335 Conn. 927, 234 A.3d 979(2020), to support his insistence that assault in the first degree should be
treated as a lesser included offense of attempted murder. In Tinsley, the
defendant was convicted of both manslaughter in the first degree and risk
of injury to a child on the basis of his having brutally beaten a fifteen month
old child, who later died of his injuries. Id., 304–306. This court found that
each of those statutes contained an element that the other does not and
thus were not the same offense under a traditional Blockburger analysis.
Id., 323. Nevertheless, the court agreed with the position advanced by the
defendant that the dual convictions still violated double jeopardy if it was
not possible to commit the greater offense in the manner described in the
information without having first committed the lesser offense. Id., 324–25.
The court determined that, ‘‘one cannot cause the death of another in the
manner described in the information, without first inflicting trauma to the
victim’s body, which is an act likely to impair the health of the minor victim.’’
Id., 323. The court in Tinsley held, on the basis of that determination, that
‘‘risk of injury to a child is a lesser included offense and, thus, the same
offense for purposes of double jeopardy, as manslaughter in the first
degree.’’ Id.
To the extent that the defendant asks us to follow the alternative analytical
path utilized by this court in Tinsley, we decline to expand Tinsley’s holding
beyond the precise circumstances of that case. Whereas our Supreme Court’s
analysis in Sharpe is essentially ‘‘on all fours’’ with the present case because
the same statutory crimes were at issue, the court in Tinsley was comparing
simultaneous convictions of charges of risk of injury and manslaughter,
neither of which is implicated in the present case.