State v. Drakes

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STATE OF CONNECTICUT v. ROOSEVELT DRAKES
(SC 19247)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued January 28—officially released July 5, 2016
Daniel J. Foster, assigned counsel, for the appel-
lant (defendant).
Michael Gailor, executive assistant state’s attorney,
with whom, on the brief, was Gail P. Hardy, state’s
attorney, for the appellee (state).
Opinion
ESPINOSA, J. This certified appeal requires this court
to consider several claims that the defendant, Roosevelt
Drakes, raises in regard to General Statutes (Rev. to
2009) § 54-102g,1 which requires convicted felons in the
custody of the Commissioner of Correction to submit
to the taking of a DNA sample for inclusion in a state
administered DNA data bank used to assist in law
enforcement investigations. The defendant appeals, fol-
lowing our grant of certification,2 from the judgment of
the Appellate Court affirming: the trial court’s judgment
granting the state permission to use reasonable physical
force to obtain a DNA sample from the defendant; and
the judgment of conviction, rendered after a jury trial,
of one count of violating § 54-102g (g). See State v.
Drakes, 143 Conn. App. 510, 519, 70 A.3d 1104 (2013).
On appeal, the defendant contends that the Appellate
Court: (1) erred in concluding that, prior to the amend-
ment to § 54-102g in 2011 specifically authorizing the
use of reasonable force to obtain a DNA sample; Public
Acts 2011, No. 11-144, § 1 (P.A. 11-144); the trial court
had the jurisdiction and authority to grant the state
permission to use reasonable physical force to obtain
a sample of the defendant’s DNA; and (2) improperly
concluded that the prosecution of the defendant pursu-
ant to § 54-102g did not violate the defendant’s right to
due process; Conn. Const., art. I, §§ 8 and 9; or the
double jeopardy clause of the federal constitution. U.S.
Const., amend. V. After our review of the defendant’s
claims, we conclude that the Appellate Court properly
resolved both issues and, therefore, affirm the judgment
of the Appellate Court.
The following facts and procedural history are rele-
vant to our resolution of the defendant’s appeal. On
April 18, 2005, the defendant pleaded guilty to one count
of murder in violation of General Statutes § 53a-54a
and one count of criminal possession of a firearm in
violation of General Statutes (Rev. to 2003) § 53a-217.
On April 20, 2005, the defendant was sentenced to thirty
years incarceration. At the time of sentencing, the
defendant was informed that, by virtue of his new status
as an incarcerated felon, he would be required to pro-
vide a DNA sample to the Department of Correction
(department) for inclusion in the state DNA data bank.
On December 3, 2009, department personnel
requested that the defendant provide a DNA sample
pursuant to § 54-102g (a). The defendant refused to do
so. On December 28, 2009, department personnel again
asked the defendant to provide a DNA sample. Once
again, the defendant informed department personnel
that he would not do so. On March 17, 2010, the depart-
ment directed the defendant and nine other inmates
who had previously refused sampling to provide a DNA
sample in accordance with § 54-102g (a). The defendant
again refused to submit to the taking of a sample and
told department personnel that if they wanted a sample
of his DNA, they would have to get a court order.
On May 19, 2010, the state filed a motion in the trial
court seeking permission to use reasonable physical
force in order to obtain a DNA sample from the defen-
dant and another inmate, Mark Banks,3 who also had
consistently refused to willingly provide a DNA sample.
As authority for its motion, the state cited to § 54-102g.
The defendant opposed the state’s motion, arguing that
§ 54-102g did not permit the state to use reasonable
force to obtain a DNA sample from an unwilling inmate
and that the only remedy available to the state was to
prosecute him for failure to provide a blood or other
biological sample for DNA analysis under § 54-102g (g).4
On February 8, 2011, the trial court issued a memoran-
dum of decision rejecting the defendant’s claims and
authorizing the state to implement reasonable physical
force to obtain a DNA sample from the defendant. The
trial court determined that the statute inherently pro-
vided the state with the authority to use reasonable
force, because allowing individuals subject to § 54-102g
to refuse sampling outright would substantially frus-
trate the legislative goal in establishing a DNA data
bank. See General Statutes (Rev. to 2009) § 54-102g (f)
(sample to be submitted for DNA analysis, and identifi-
cation characteristics of profile resulting from such
analysis shall be stored in DNA data bank). The defen-
dant appealed from the trial court’s decision.
On June 9, 2010, while the state’s motion was pending
before the trial court, the defendant was charged with
a violation of § 54-102g (g) for his failure to submit to
the taking of a blood or other biological sample for
DNA analysis. On December 16, 2010, the defendant
moved to dismiss the charge, arguing that it violated
his due process rights and the constitutional prohibition
against double jeopardy. On January 4, 2011, the trial
court held a hearing on the defendant’s motion at which
the defendant argued that submitting a DNA sample was
a punishment and that it thereby violated the double
jeopardy clause by subjecting him to additional punish-
ment for his original crimes. In response, the state
argued that § 54-102g is not a punitive sanction and that
there was no double jeopardy violation present under
the test set forth in the United States Supreme Court’s
decision in Blockburger v. United States, 284 U.S. 299,
304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) (‘‘the test to be
applied to determine whether there are two offenses
or only one, is whether each provision requires proof
of a fact which the other does not’’). The trial court
denied the defendant’s motion, noting that § 54-102g is
not a punishment and that the defendant was not being
prosecuted in connection with his underlying crimes,
but for his new act of not complying with the statutory
duty to submit to the taking of a DNA sample. The
defendant thereafter was tried before a jury and found
guilty of one count of refusing to provide a DNA sample.
The defendant was sentenced to one year incarceration,
to be served consecutively with his existing sentence.
The defendant filed a separate appeal from the judg-
ment of conviction.
The Appellate Court considered the defendant’s con-
solidated appeals and upheld both the trial court’s grant
of the state’s motion for permission to use reasonable
physical force to acquire a DNA sample from the defen-
dant and the defendant’s conviction under § 54-102g (g)
for refusing to submit to the taking of a DNA sample.
State v. Drakes, supra, 143 Conn. App. 512. On appeal
to the Appellate Court, the defendant argued that the
trial court lacked subject matter jurisdiction to enter-
tain the state’s motion, and that it improperly deter-
mined that § 54-102g authorized the use of reasonable
force to obtain a DNA sample from a resistant inmate.
Id., 515. The Appellate Court, fully adopting the reason-
ing of its companion decision in State v. Banks, 143
Conn. App. 485, 492–508, 71 A.3d 582 (2013),5 held that
the trial court properly had jurisdiction to consider and
grant the motion, and that § 54-102g authorized the use
of reasonable force. State v. Drakes, supra, 516. The
defendant also argued that his prosecution and convic-
tion under § 54-102g violated the constitutional guaran-
tee of due process and the prohibition against double
jeopardy. Id., 518. The Appellate Court rejected the
defendant’s argument, reasoning that § 54-102g is regu-
latory, not punitive, in nature, and that the defendant’s
prosecution was for the new act of refusing to submit
to the taking of a DNA sample and was unrelated to
the criminal conduct that provided the basis for his
original conviction. Id., 519. We subsequently granted
the defendant’s petition for certification to appeal. See
footnote 2 of this opinion.
I
The defendant first argues that the Appellate Court
incorrectly determined that the trial court had subject
matter jurisdiction to consider and ultimately grant the
state’s motion for permission to use reasonable physical
force as a means of obtaining a DNA sample. Likewise,
the defendant contends that prior to the legislature’s
2011 amendment to § 54-102g, which expressly author-
ized the department to use reasonable physical force
to obtain DNA samples from unwilling inmates, there
was no authority for the trial court’s granting of the
state’s motion to use such force. See P.A. 11-144. In
response, the state posits that because § 54-102g is regu-
latory, not penal, in nature, the trial court had subject
matter jurisdiction to consider its motion. The state
further contends that § 54-102g provides inherent
authority to the department to use reasonable physical
force, as a conclusion to the contrary would substan-
tially frustrate the objectives of the statutory scheme.
We agree with the state and conclude that the Appellate
Court properly resolved both questions.
We observe at the outset that the jurisdictional and
statutory claims that the defendant raises in the present
case are essentially identical to those raised and
addressed in the companion case to the defendant’s
appeal that we decided today. See State v. Banks, 321
Conn. 821, A.3d (2016). Our examination of
these same issues in Banks thoroughly resolves the
claims of the defendant in the present case and there
is nothing in this case that would mandate a different
result than that which we reached in Banks. Id., 830–
844. Accordingly, we adopt the reasoning and conclu-
sions of that opinion herein. See Minnesota Methane,
LLC v. Dept. of Public Utility Control, 283 Conn. 700,
712, 931 A.2d 177 (2007); Rocque v. Mellon, 275 Conn.
161, 166–67, 881 A.2d 972 (2005), cert. denied, 547 U.S.
1111, 126 S. Ct. 1913, 164 L. Ed. 2d 664 (2006). We
therefore affirm the judgment of the Appellate Court
in regard to the defendant’s claims that the trial court
was without subject matter jurisdiction and that § 54-
102g did not authorize the use of reasonable physical
force to ensure compliance.
II
The defendant also argues that the Appellate Court
improperly rejected his claim that his conviction for
failure to submit to the taking of a blood or other biologi-
cal sample for DNA analysis in violation of § 54-102g
(g) infringes upon his due process rights and violates
the federal and state constitutional prohibitions against
double jeopardy. We disagree with the defendant’s
claim and affirm the judgment of the Appellate Court.
The fifth amendment to the United States constitution
provides in relevant part: ‘‘[N]or shall any person be
subject for the same offense to be twice put in jeopardy
of life or limb . . . .’’ Although our state constitution
does not contain an explicit prohibition on double jeop-
ardy, it is well settled that ‘‘the due process and personal
liberty guarantees provided by article first, §§ 8 and
9, of the Connecticut constitution have been held to
encompass the protection against double jeopardy.’’
(Internal quotation marks omitted.) State v. Kasprzyk,
255 Conn. 186, 192, 763 A.2d 655 (2001). The protection
that the state constitution provides against double jeop-
ardy is ‘‘coextensive with that provided by the constitu-
tion of the United States.’’ Id., 191–92. Specifically, the
prohibition against double jeopardy ensures that a
defendant will not be prosecuted a second time for the
same offense following either an acquittal or a convic-
tion, and also ensures that a defendant will not be sub-
jected to multiple punishments for the same offense.
Whalen v. United States, 445 U.S. 684, 688, 100 S. Ct.
1432, 63 L. Ed. 2d 715 (1980); State v. Alexander, 269
Conn. 107, 120, 847 A.2d 970 (2004). The test to deter-
mine whether a defendant is being subjected to multiple
punishments for the same act under two ‘‘distinct statu-
tory provisions’’ is ‘‘whether each [statutory] provision
requires proof of a fact which the other does not.’’
Blockburger v. United States, supra, 284 U.S. 304.
As the Appellate Court noted, the defendant’s double
jeopardy claim is ‘‘misguided for more than one reason.’’
State v. Drakes, supra, 143 Conn. App. 519. First, as the
Appellate Court and the trial court concluded, and as
we concluded today in our decision in State v. Banks,
supra, 321 Conn. 830–837, under our decision in State
v. Waterman, 264 Conn. 484, 492–93, 825 A.2d 63 (2003),
and the factors articulated in Kennedy v. Mendoza-
Martinez, 372 U.S. 144, 168–69, 83 S. Ct. 554, 9 L. Ed.
2d 644 (1963), § 54-102g is a regulatory statute and does
not impose any penalty on those subject to its require-
ments. Accordingly, requiring the defendant to submit
to the taking of a DNA sample for inclusion in the DNA
data bank does not constitute an additional punishment
for his underlying crimes because the requirement is
not itself a punishment.
Second, the defendant’s prosecution and conviction
of a violation of § 54-102g (g) is completely unrelated
to his conviction of the crimes of murder and criminal
possession of a firearm in 2005. That is, the defendant’s
actions that formed the basis for his initial criminal
conviction are distinct and separate from the conduct
that formed the basis for his conviction of § 54-102g
(g). The defendant’s conviction at issue in the present
case was due to his refusal, following his original crimi-
nal conviction and subsequent incarceration, to provide
a DNA sample as required by § 54-102g. Thus, the defen-
dant’s prosecution and conviction were premised on
conduct separate from his initial conviction, and the
defendant’s conviction for violating § 54-102g (g) in no
way affects his prior sentence. Accordingly, we con-
clude that the defendant cannot prevail on his double
jeopardy claim, and we therefore affirm the judgment
of conviction.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
All references herein to § 54-102g are to the 2009 revision of the statute
unless otherwise indicated.
2
We granted the defendant’s petition for certification limited to the follow-
ing issues: (1) whether the Appellate Court properly determined that prior
to the passage of No. 11-144 of the 2011 Public Acts, which amended § 54-
102g, it was permissible for the trial court to grant the state permission to
use reasonable force to obtain a DNA sample; and (2) whether the Appellate
Court properly determined that the prosecution of the defendant for failing
to provide a DNA sample under § 54-102g (g) did not violate due process
and the prohibition against double jeopardy. We note that our initial grant
of certification; see State v. Drakes, 310 Conn. 951, 81 A.3d 1179 (2013); did
not accurately reflect the issues raised in the defendant’s present appeal.
See State v. Dort, 315 Conn. 151, 169, 106 A.3d 277 (2014) (‘‘courts must,
when necessary, reformulate the certified question to conform to the issue
actually presented to and decided in the appeal to the Appellate Court’’
[internal quotation marks omitted]). At oral argument before this court,
defense counsel clarified that the defendant was not asserting an ex post
facto or retroactivity claim.
3
Banks’ appeal, also decided today, raises substantially similar issues to
those presented by the defendant in the present case. See State v. Banks,
321 Conn. 821, A.3d (2016).
4
At the time of the events underlying this appeal, an individual who
refused to submit to the taking of a DNA sample as required by § 54-102g
(a) was guilty of a class A misdemeanor. See General Statutes (Rev. to 2009)
§ 54-102g (g). The legislature subsequently amended the statute to make
such refusal a class D felony, effective October 1, 2010. Public Acts 2010,
No. 10-102, § 2; see General Statutes (Rev. to 2011) § 54-102g (g).
5
See footnote 3 of this opinion.