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Attorney(S)

Richard Emanuel, assistant public defender, with whom, on the brief, was Enrico Vaccaro, assistant public defender, for the appellant (defendant). Ernest J. Diette, Jr., assistant state's attorney, with whom, on the brief, were Francis M. McDonald, Jr., state's attorney, and Walter H. Scanlon, assistant state's attorney, for the appellee (state).

Judges

PARSKEY, J.

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Smart Summary

State of Connecticut v. Baudilio Amaral — Summary of Opinion

Factual and Procedural Background

On February 7, 1975, Waterbury police, pursuant to a search warrant, searched the defendant's apartment and found in the attic hatchway a narcotics cache consisting of ten aluminum foil bags of heroin, four hypodermic needles, a "cooker" and a loaded .22-caliber revolver. The seizure led to an information charging multiple offenses. The information (six counts) included three counts relating to heroin: simple possession (General Statutes 19-481 (a)), possession with intent to sell (19-480 (a)), and possession with intent to sell by a non-drug-dependent person (19-480a (b)). At trial before the Superior Court in Waterbury, the jury was instructed to treat the three heroin counts as separate crimes and convicted the defendant on those counts. Sentences imposed on the three heroin convictions ran concurrently: two to five years for simple possession, eight to fourteen years for possession with intent to sell, and five to ten years for possession with intent to sell by a non-drug-dependent person. The defendant appealed, raising principally the trial court's treatment of the heroin counts as separate crimes and certain evidentiary rulings. The case was argued October 3, 1979, and decided November 20, 1979.

Legal Issues Presented

Whether the trial court's treatment of the three heroin counts as separate crimes, arising from a single act of possession, violated the constitutional prohibition against double jeopardy (i.e., whether multiple convictions and punishments for what in law is a single offense are barred).
Whether certain evidentiary rulings were improper (including cross-examination and admission of evidence of prior sales) and, if so, whether any error was prejudicial.

Arguments of the Parties

Appellant's (Defendant's) Arguments

The trial court erred by treating the three heroin counts—simple possession, possession with intent to sell, and possession with intent to sell by a non-drug-dependent person—as separate crimes when they arose from a single act of possession, thereby violating the double jeopardy prohibition.
The defendant also challenged certain evidentiary rulings made at trial.

Appellee's (State's) Arguments

The state conceded that, applying the lesser-included-offense test, the three heroin counts charged a single offense consisting of varying degrees of possession.
The state argued that any error in treating the counts as separate offenses was harmless beyond a reasonable doubt because the sentences imposed on the heroin counts ran concurrently.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Healy v. White, 173 Conn. 438, 441, 378 A.2d 540 (1977)	Refusal to consider claims not particularized in the brief.	The court declined to consider certain challenges the defendant raised orally because they were not particularized in the brief, citing Healy.
State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973)	Doctrine permitting review of claimed denial of a fundamental constitutional right despite lack of contemporaneous objection.	The court invoked Evans to review the double jeopardy claim even though the defendant took no exception to the charge and made no related motion, because the record supported a claim of denial of a fundamental constitutional right.
Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)	Double jeopardy prohibition applies to multiple punishments in a single trial as well as separate trials.	The court relied on Brown to frame the double jeopardy concern as encompassing multiple punishments imposed in a single trial.
State v. Goldson, 178 Conn. 422, 423-24, 423 A.2d 114 (1979)	Double jeopardy requires that offenses be substantially the same as well as arise out of the same act or transaction.	Goldson informed the two-part inquiry (same act/transaction and substantial sameness); the court noted the state's concession under Goldson that the heroin counts charged a single offense.
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)	Test for determining whether two statutory provisions create distinct offenses: whether each requires proof of an additional fact which the other does not.	The court applied the Blockburger test (as described in the opinion) to determine whether the heroin counts were separate offenses or a single offense with lesser included offenses.
State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977)	When applying tests for multiple offenses, the court looks only to the information and bill of particulars.	The court stated that the Blockburger/Brown analysis is conducted with reference only to the information and bill of particulars, citing Troynack.
State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972)	Test for lesser included offense: whether it is possible to commit the greater offense as described without first committing the lesser.	The court used the Brown test to explain the concept of a lesser included offense and applied it to hold that the greater heroin offense necessarily included the lesser ones.
State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974)	Trial court has liberal discretion in fixing the limits of cross-examination.	The court applied Croom in upholding the state's cross-examination exploring the defendant's prior convictions after the defendant had put those convictions before the jury.
State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979)	Evidence of other crimes may be admissible if independently probative and relevant to establish intent.	The court relied on Turcio to uphold admission of evidence of prior sales of heroin as relevant to intent under a charge of possession with intent to sell.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete steps grounded in precedent and the record:

Same Act/Transaction: The court observed that the three heroin counts were grounded on a single act of possession occurring at a single date and time (the seizure on February 7, 1975), thus satisfying the "same act or transaction" prong required to trigger double jeopardy analysis.
Substantial Sameness / Lesser-Included Analysis: Applying the Blockburger test (and the Brown test for lesser included offenses) — and looking only to the information and bill of particulars as prescribed by Troynack — the court determined that the three statutory charges were not separate offenses because each did not require proof of a fact the others did not. Concretely, the court concluded (and the state conceded) that one could not commit the greater offense (possession with intent to sell by a non-drug-dependent person) without at the same time committing the lesser offenses (possession with intent to sell and simple possession). Thus, the heroin counts constituted a single offense with lesser included offenses.
Double Jeopardy Violation: Because the court treated the lesser included offenses as separate crimes and entered convictions and sentences on each, that treatment violated the constitutional prohibition against double jeopardy (which forbids multiple punishments for the same offense, per Brown and Goldson).
Harmless-Error Argument Rejected: The state argued the error was harmless because the sentences were concurrent. The court rejected this, noting that the defendant received a harsher sentence on one of the lesser included offenses (eight to fourteen years) than on the greater offense (five to ten years). The court held that concurrent sentencing did not eliminate the additional punishment received for what was legally a single offense; speculative possibilities about what the trial court might have done were immaterial.
Evidentiary Rulings: The court addressed evidentiary rulings briefly. It upheld cross-examination exploring the defendant's prior felony convictions because the defendant had placed those convictions before the jury; the court noted the trial court's broad discretion on cross-examination limits (Croom). The court also upheld rulings admitting evidence of prior sales of heroin where that evidence was independently probative of intent under the theory articulated in Turcio.
Sentence Modification and Clarification: Because a conviction on the greater offense would have obviated the jury's consideration of the lesser included offenses, the court determined the proper remedy was modification of the judgment to reflect only the sentence on the greater offense (possession with intent to sell by a non-drug-dependent person): not less than five nor more than ten years. The court further observed a discrepancy in the written judgment's statement of the "effective sentence" and clarified that the concurrent sentences should have produced an effective sentence of eight to fourteen years if properly aggregated; nonetheless, the court ordered modification consistent with treating the heroin counts as a single offense.

Holding and Implications

Holding: The court held that the trial court erred in treating the three heroin counts as separate crimes and that such treatment violated the constitutional prohibition against double jeopardy. The judgment was ordered modified so as to reflect only a sentence of not less than five nor more than ten years' imprisonment on the greater offense (possession with intent to sell by a non-drug-dependent person). The case was remanded for modification of the judgment in accordance with this opinion.

Implications: The direct consequence is a modification of the defendant's sentence to a single sentence of five to ten years on the greater heroin offense and remand for entry of the corrected judgment. The opinion addresses the double jeopardy issue and related evidentiary rulings in light of established precedent; it does not announce a novel rule beyond its application of existing authorities.

Note: This summary is limited to and faithful to the information contained in the provided opinion.

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STATE OF CONNECTICUT v. BAUDILIO AMARAL

Convicted of the crimes of possession of heroin, of possession of heroin with intent to sell, and of possession of heroin with intent to sell by a person who is not drug dependent, and sentenced to two to five years on the first count, eight to fourteen years on the second count, and five to ten years on the third count, the defendant appealed. Since all three counts were based on a single act of possession, and since the defendant could not have committed the greater offense of possession with intent to sell by a person who is not drug dependent without, at the same time, having committed the two lesser offenses charged, the trial court's treatment of the charges as separate crimes violated the constitutional prohibition against double jeopardy. The state contended that even if the trial court did err in treating the three charges as separate crimes that error was harmless because the sentences imposed were to run concurrently. That claim was unpersuasive because the defendant had received a more severe sentence on one of the lesser offenses than he had received on the greater offense. Since, had the trial court treated the charges properly, the conviction of the greater offense would have obviated consideration by the jury of the lesser offenses, the trial court was ordered to modify its judgment so as to reflect only a sentence of five to ten years on the greater offense.

PARSKEY, J.

The defendant, after a trial to the jury, was convicted of three counts of possession of heroin. One count charged simple possession in violation of General Statutes 19-481 (a), another charged possession with intent to sell in violation of 19-480 (a) and a third charged possession with intent to sell by a non-drug-dependent person in violation of 19-480a (b). From the judgment subsequently rendered the defendant has appealed, raising as a principal issue the trial court's treatment of the heroin offenses as three separate crimes. He also challenges certain evidentiary rulings.

The defendant was charged in a six-count information and was convicted of five counts as charged and on a sixth count of a lesser included offense. Although in oral argument the defendant has attempted to sweep into this appeal challenges to the remaining three convictions, we do not consider them because he has not particularized those challenges in his brief. Healy v. White, 173 Conn. 438, 441, 378 A.2d 540 (1977).

On February 7, 1975, the Waterbury police, under the authority of a search warrant, searched the defendant's apartment in Waterbury and discovered in the attic hatchway to the apartment a narcotics cache consisting of ten aluminum foil bags of heroin, four hypodermic needles and a "cooker" along with a loaded .22-caliber revolver. An experienced undercover police operative testified that it is common practice for a dealer of narcotics to store a loaded weapon with his "stash" to protect himself in transactions with heroin users. It is also common practice for a seller to keep on hand the apparatus needed to inject heroin so that a prospective buyer might sample the narcotic in the presence of the seller in order to ensure that the heroin is of the promised quality. The seizure of the heroin on the date in question gave rise to the charges against the defendant.

The trial court instructed the jury to treat the heroin counts as three separate crimes. After conviction the defendant was sentenced to a term of not less than two nor more than five years' imprisonment on the simple possession count, to not less than eight nor more than fourteen years' imprisonment on the possession with intent to sell count and to not less than five nor more than ten years' imprisonment on the possession with intent to sell by a non-drug-dependent person count. The sentences on all three counts were to run concurrently. Although the defendant filed no request to charge, took no exception to the court's charge and raised no issue on his motion to set aside the verdict respecting the consideration of the heroin charges as separate crimes, we address this question because the court's treatment of the heroin counts as separate crimes violated the constitutional prohibition against double jeopardy. Thus, the record adequately supports a claim that the defendant has been denied a fundamental constitutional right and a fair trial; we review the claim under the doctrine of State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

The double jeopardy prohibition covers not only separate trials but also multiple punishments in a single trial. Brown v. Ohio, 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Goldson, 178 Conn. 422, 423-24, 423 A.2d 114 (1979). Before the double jeopardy prohibition is triggered, however, it must appear not only that the crimes charged arose out of the same act or transaction but also they are substantially the same. State v. Goldson, supra.

The first condition is satisfied here by the fact that the three heroin counts are bottomed on a single act of possession alleged to have occurred on a single date and time. With respect to the second condition, "where 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 an additional fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In making this determination we look only to the information and the bill of particulars. State v. Troynack, 174 Conn. 89, 96-97, 384 A.2d 326 (1977). "The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser. If it is possible, then the lesser violation is not an included crime." State v. Brown, 163 Conn. 52, 61-62, 301 A.2d 547 (1972). Viewed schematically, a lesser included offense is a concentric circle within the greater offense whereas separate but overlapping offenses may be seen as intersecting circles. In the light of our recent decision in Goldson, the state concedes, as it must, that, applying the Brown test to the crimes involved here, a single offense consisting of varying degrees of possession of heroin has been charged. A person could not commit the greater offense of possession of heroin with intent to sell by a non-drug-dependent person without at the same time having committed the lesser offenses of possession with intent to sell and simple possession.

The state argues, however, that even if the court erred in treating the heroin charges as three separate offenses the error was harmless beyond a reasonable doubt because of the concurrent sentences imposed. The state's argument is not persuasive. The defendant received a sentence of five to ten years' imprisonment on the greater offense, possession with intent to sell by a non-drug-dependent person, and a more severe sentence of eight to fourteen years' imprisonment on the lesser included offense, possession of heroin with intent to sell. Although ordinarily the double jeopardy issue has been raised in situations involving cumulative, consecutive sentences, it could hardly be contended that in this case the defendant did not receive additional punishment for a single offense. That the court might have imposed the greater penalty on the greater offense is immaterial. The constitutional protection against double jeopardy does not rise or fall on such speculations.

We deal briefly with the defendant's attack on certain evidentiary rulings. The defendant took the stand and testified in his own defense. On direct examination he admitted his prior felony convictions including several involving the sale of heroin. On cross-examination the state's attorney was permitted to explore these convictions in some detail. There was no error in this ruling. The convictions having come before the jury through the defendant, their repetition could hardly support a claim of prejudice. The trial court is allowed a liberal discretion in fixing the limits of cross-examination. State v. Croom, 166 Conn. 226, 231, 348 A.2d 556 (1974).

There were several rulings pertaining to prior sales of heroin by the defendant. Although evidence of guilt of crimes other than the one charged generally is not admissible, one instance where such evidence is admissible is where it is independently probative and relevant to establish intent. State v. Turcio, 178 Conn. 116, 129, 422 A.2d 749 (1979). Under a charge of possession with intent to sell, the fact that in the past the defendant had been a seller of the drug would tend to characterize the nature of his possession of the drug at the time of the alleged offense.

There remains for consideration the question of the sentence to be imposed. Had the trial court properly treated the three heroin charges as parts of a single offense a conviction on the greater offense would have made it unnecessary for the jury to consider the lesser included offenses. It thus becomes necessary for the judgment to be modified so as to reflect only a sentence of not less than five nor more than ten years' imprisonment on the greater offense, sale by a non-drug-dependent person.

The judgment in this case is confusing. In addition to the concurrent sentences imposed on the heroin counts, the court also imposed one-year concurrent sentences on two other counts. Adding up all of the concurrent sentences yields an effective sentence of eight to fourteen years. The judgment, however, called for "an effective sentence of not less than 8 nor more than 16 years." This does not comport with the rest of the judgment which called for concurrent sentences. Obviously if concurrent sentences were imposed, the total effective sentence should have been eight to fourteen years.

Accordingly, the case must be remanded for the modification of the judgment in accordance with this opinion.

STATE v. AMARAL