State v. Bennett

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STATE OF CONNECTICUT v. CALVIN BENNETT
(AC 40443)
DiPentima, C. J., and Elgo and Harper, Js.

Syllabus

The defendant, who had been convicted by a three judge panel of the crimes
of felony murder, home invasion and burglary in the first degree in
connection with the shooting death of the victim, appealed to this court
from the trial court’s denial of his motion to correct an illegal sentence.
On appeal, the defendant claimed that his sentence for both burglary in
the first degree and home invasion violated his constitutional protection
against double jeopardy because the home invasion was part of the same
transaction as the burglary and his intent throughout the transaction
was to carry out a larceny. Held that the defendant’s conviction of
burglary in the first degree and home invasion did not violate his constitu-
tional protection against double jeopardy; although the defendant
claimed that the robbery that gave rise to the home invasion was inciden-
tal to the completion of the larceny that gave rise to the burglary charge
and, therefore, could be considered as part of an uninterrupted course
of conduct in furtherance of the burglary, the acts were susceptible to
separation into parts that supported a conviction of both burglary in
the first degree and home invasion, as the burglary charge arose from
the defendant’s distinct and separate act of entering the victim’s dwelling
at night with the intent to commit a larceny, while the home invasion
charge arose from the defendant’s separate act of threatening the use
of physical force against the victim’s girlfriend after the defendant and
an associate entered the home and were committing the larceny, and
although the defendant’s conduct constituted one transaction and the
defendant may have had the intent to commit a larceny throughout
the transaction, the defendant’s intent was not a factor in determining
whether the transaction was susceptible to separation into parts that
supported a conviction of both crimes.
Argued October 25, 2018—officially released February 19, 2019

Procedural History

Substitute information charging the defendant with
the crimes of aiding and abetting murder, felony mur-
der, home invasion and burglary in the first degree,
brought to the Superior Court in the judicial district of
Waterbury and tried to a three judge court, Cremins,
Crawford and Schuman, Js.; judgment of guilty, from
which the defendant appealed to our Supreme Court,
which reversed the judgment in part and remanded
the case for further proceedings; thereafter, the court,
Fasano, J., denied the defendant’s motion to correct
an illegal sentence, and the defendant appealed to this
court. Affirmed.
W. Theodore Koch III, assigned counsel, for the appel-
lant (defendant).
Linda Currie-Zeffiro, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, and John Davenport, senior assistant state’s attor-
ney, for the appellee (state).
Opinion

HARPER, J. The defendant, Calvin Bennett, appeals
from the judgment of the trial court denying his motion
to correct an illegal sentence. On appeal, the defendant
argues that the court improperly rejected his claim that
his sentence for both burglary in the first degree in
violation of General Statutes § 53a-101 (a) (3)1 and home
invasion in violation of General Statutes § 53a-100aa (a)
(1)2 violates his constitutional protection against double
jeopardy. We affirm the judgment of the trial court.
Our Supreme Court, in its opinion addressing the
defendant’s direct appeal, recited the following proce-
dural history and facts relevant to this appeal. ‘‘The
defendant . . . was charged with aiding and abetting
murder in violation of General Statutes §§ 53a-8 and
53a-54a, felony murder in violation of General Statutes
§ 53a-54c, home invasion in violation of General Stat-
utes § 53a-100aa (a) (1), and burglary in the first degree
in violation of General Statutes § 53a-101 (a) (3). The
defendant elected a trial to a three judge court (panel).
See General Statutes § 54-82. The panel, consisting of
Cremins, Crawford and Schuman, Js., rendered a
unanimous verdict of guilty on all of the charges except
aiding and abetting murder, on which a majority of
the panel found the defendant guilty, and thereafter
rendered judgment in accordance with the verdict and
imposed a total effective sentence of sixty years impris-
onment. . . .
‘‘[The victim] James Caffrey lived in the second floor
apartment of 323 Hill Street in Waterbury with his girl-
friend Samantha Bright and one other roommate.
James’ mother, Emilia Caffrey, lived in the first floor
apartment. In the late afternoon of Saturday, October
26, 2008 . . . Caffrey and Bright had five visitors,
including Tamarius Maner, in their living room. Maner
had a clear view of the bedroom from where he was
seated in the living room. Maner purchased a small
amount of marijuana from . . . Caffrey and paid him
some money, which Caffrey put in the bedroom. Caffrey
kept the marijuana in the bedroom. Caffrey remarked
that he had saved $500 for a child that he was expecting
with Bright.
‘‘At about that time, Maner and the defendant lived
next door to each in other in Bridgeport and had done
drug business together. Maner contacted the defendant
by cell phone during the evening of Saturday, October
26. Shortly after midnight on Sunday, October 27, Maner
and the defendant drove from Bridgeport to Waterbury
to go to James Caffrey’s apartment. They were carrying
loaded handguns.
‘‘Just after 1 a.m., the doorbell to the second floor
apartment at 323 Hill Street rang and Caffrey answered
the door. A conversation of a few seconds with . . .
Caffrey ensued. Maner then shot Caffrey in the face
from a distance of one to three feet with a .45 caliber
handgun. Caffrey fell in the hallway in a pool of blood
and died from the gunshot wound to the head.
‘‘Maner and the defendant walked past Caffrey and
into the bedroom. Then the defendant put a gun to
Bright’s head and asked: ‘Where is everything?’ Bright
understood the question to inquire about money and
drugs. Bright referred them to the top dresser drawer.
Maner opened it and threw its contents on the bed-
room floor.
‘‘At about that time, they heard the screams of Emilia
Caffrey, who had heard the shot and discovered her
son lying in the second floor hallway. The defendant
told Bright to keep her head down and face the wall.
Maner and the defendant then ran into the kitchen,
which Emilia Caffrey had also entered to call 911.
Maner, who was standing at the stove, fired one shot
at [Emilia] Caffrey and missed. The defendant was
standing at the window.
‘‘Maner and the defendant then ran out of the kitchen,
pushing [Emilia] Caffrey to the floor as they left. They
returned to their car and arrived back in Bridgeport
around 2 a.m.
‘‘Police interviews of some of the Waterbury visitors
to James Caffrey’s apartment on the afternoon of Octo-
ber 26 led to the identity of Maner, who was also known
in Bridgeport as T or Trigger. Further police investiga-
tion, including analysis of Maner’s cell phone calls,
brought police to an apartment in Bridgeport where
they found the defendant. The defendant voluntarily
returned to Waterbury with the police and told them
that he had not left Bridgeport on the night in question.
When confronted with the fact that his cell phone
records showed him in Waterbury during the time of
the crimes, the defendant put his head down for a
minute and then indicated that he had nothing more to
say. A search, pursuant to a warrant, of his apartment
in Bridgeport revealed a suitcase containing the defen-
dant’s clothes, a loaded .45 caliber pistol, and a sock
containing sixty-one rounds of ammunition.’’ (Internal
quotation marks omitted.) State v. Bennett, 307 Conn.
758, 760–63, 59 A.3d 221 (2013). Our Supreme Court
vacated the defendant’s conviction of aiding and abet-
ting murder and affirmed the judgment in all other
aspects. Id., 777.
On November 16, 2015, the defendant filed a pro
se motion to correct an illegal sentence pursuant to
Practice Book § 43-22,3 arguing that his sentence for
both burglary in the first degree and home invasion
violates his constitutional protection against double
jeopardy. The defendant subsequently was appointed
counsel, who filed a memorandum of law in support
of the defendant’s motion. After a hearing, the trial
court orally denied the motion. This appeal followed.
We begin by setting forth the standard of review and
relevant law. ‘‘Ordinarily, a claim that the trial court
improperly denied a defendant’s motion to correct an
illegal sentence is reviewed pursuant to the abuse of
discretion standard. . . . A double jeopardy claim,
however, presents a question of law, over which our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) State v. Baker, 168 Conn. App. 19,
24, 145 A.3d 955, cert. denied, 323 Conn. 932, 150 A.3d
232 (2016).
‘‘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. The double jeopardy
clause is applicable to the states through the due pro-
cess clause of the fourteenth amendment. . . . This
constitutional guarantee prohibits not only multiple tri-
als for the same offense, but also multiple punishments
for the same offense in a single trial. . . .
‘‘Double jeopardy analysis in the context of a single
trial is a two-step process. First, the charges must arise
out of the same act or transaction. Second, it must be
determined whether the charged crimes are the same
offense. Multiple punishments are forbidden only if
both conditions are met.’’ (Internal quotation marks
omitted.) State v. Schovanec, 326 Conn. 310, 325, 163
A.3d 581 (2017). If we determine that the charges do
not arise from the same act or transaction, we do not
need to proceed to the second step of the analysis.
Id., 328.
‘‘At step one, 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 defen-
dant, 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 step two,
where it must be determined whether the charged
crimes are the same offense. . . . At this second step,
we [t]raditionally . . . have applied the Blockburger
test to determine whether two statutes criminalize the
same offense, thus placing a defendant prosecuted
under both statutes in double jeopardy: [W]here the
same act or transaction constitutes a 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 which
the other does not. . . . 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; internal
quotation marks omitted.) State v. Porter, 328 Conn.
648, 662, 182 A.3d 625 (2018). This test is ‘‘a technical
one and examines only the statutes, charging instru-
ments, and bill of particulars as opposed to the evidence
presented at trial.’’ Id., 656.
In the present case, we begin our analysis by
determining whether the conviction for burglary in the
first degree and home invasion arose from the same
act or transaction.4 ‘‘The same transaction . . . may
constitute separate and distinct crimes where it is sus-
ceptible of separation into parts, each of which consti-
tutes a completed offense. . . . [T]he test is not
whether the criminal intent is one and the same and
inspiring the whole transaction, but whether separate
acts have been committed with the requisite criminal
intent and are such as are made punishable by the
[statute].’’ (Emphasis added; internal quotation marks
omitted.) State v. Tweedy, 219 Conn. 489, 497–98, 594
A.2d 906 (1991). When determining whether two
charges arose from the same act or transaction, our
Supreme Court has asked whether a jury reasonably
could have found separate factual basis for each offense
charged. State v. Schovanec, supra, 326 Conn. 329; see
also State v. Snook, 210 Conn. 244, 265, 555 A.2d 390,
cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L. Ed.
2d 603 (1989). Logically, it follows that we must ask
whether the three judge panel reasonably could have
found separate factual bases for the burglary and home
invasion charges.
The defendant argues that the home invasion was
part of the same transaction as the burglary and that
his intent throughout the transaction was to carry out
a larceny. We agree that the commission of the burglary
did not cease until the defendant left the dwelling. See
White v. Commissioner of Correction, 170 Conn. App.
415, 434, 154 A.3d 1054 (2017) (burglary, once com-
menced, continues until all participants in burglary have
left the premises). Nevertheless, although the defen-
dant’s conduct constituted one transaction and the
defendant may have had the intent to commit a larceny
throughout the transaction, the relevant inquiry does
not focus on the defendant’s intent. Rather, we must
determine whether the transaction is susceptible to sep-
aration into parts that support a conviction of both
burglary in the first degree and home invasion. We con-
clude that the acts are susceptible to separation into
parts.
The information alleges that the defendant commit-
ted burglary in the first degree when he ‘‘entered and
remained unlawfully in a dwelling at night with the
intent to commit a crime therein, namely a larceny.’’
(Emphasis added.) The information further alleges that
the defendant committed home invasion when he
‘‘entered and remained unlawfully in a dwelling, while
a person other than the participant in the crime [was]
actually present in such dwelling, with the intent to
commit a crime therein, here, a larceny, and, in the
course of committing the offense, acting with one or
more persons, such person or another participant in
the crime commit[ted] . . . a felony, here, a robbery
against the person of Samantha Bright, who was not a
participant in the crime who was actually present in
such dwelling.’’ (Emphasis added.)
As the charges are presented in the information, the
panel could have reasonably found a factual basis to
support the burglary charge when the defendant unlaw-
fully entered Caffrey’s home at night with the intent of
committing a larceny by stealing Caffrey’s drugs and
money. Additionally, the panel reasonably could have
found a factual basis to support the home invasion
charge when, subsequent to the unlawful entry, the
defendant pointed a gun at Bright’s head while asking
‘‘where is everything?’’ The threatened use of physical
force during the commission of the larceny gave rise
to the felonious act of robbery and, therefore, com-
pleted the offense of home invasion.5 In other words,
the burglary charge arose from the distinct and separate
act of entering the dwelling at night with the intent to
commit a larceny, while the home invasion charge arose
from the separate act of threatening the use of physical
force against Bright after the defendant and Maner
entered the home and were committing the larceny.
See State v. Meadows, 185 Conn. App. 287, 295, 197 A.3d
464 (transaction giving rise to conviction of prohibited
contact with victim and threatening and harassing vic-
tim in violation of standing criminal protective order
constituted separate acts because conduct described
in long form information was susceptible to separation
into parts despite close proximity of acts), cert. granted,
330 Conn. 947, 196 A.3d 327 (2018); State v. James E.,
154 Conn. App. 795, 833-834, 112 A.3d 791 (2015) (two
counts of assault of elderly person considered separate
acts or transactions because conduct described in infor-
mation was susceptible to separation into parts despite
victim being shot twice in short period of time), aff’d,
327 Conn. 212, 173 A.3d 380 (2017).
In an attempt to support his argument, the defendant
cites to White v. Commissioner of Correction, supra,
170 Conn. App. 433–34, seemingly for the proposition
that when a burglary is in progress, actions taken after
entry into a home may be considered as part of an
uninterrupted course of conduct in furtherance of the
burglary .6 The relevant portion of our decision in White
did not address a double jeopardy argument, but rather
addressed, following our Supreme Court’s decision in
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008),
whether a defendant’s conduct that gave rise to a kid-
napping conviction was incidental to the commission
of a burglary.7 Id., 433. We disagree, therefore, with the
defendant’s analogy.
Framed differently, the defendant essentially argues
that the home invasion, specifically the robbery that
gave rise to the home invasion, was incidental to the
completion of the larceny that gave rise to the burglary
charge. Our court rejected a similar claim in State v.
Gemmell, 151 Conn. App. 590, 603–604, 94 A.3d 1253,
cert. denied, 314 Conn. 915, 100 A.3d 405 (2014), in
which the defendant argued that, according to Salamon,
his conviction of home invasion was incidental to the
charges of violation of a protective order or unlawful
restraint. In rejecting the defendant’s claim, the court
noted that Salamon was applicable only to the state’s
kidnapping statutes, and not to other crimes. Id. We
similarly reject the defendant’s claim in the present
case.
In conclusion, the burglary in the first degree and
home invasion charges arose from a transaction that
was susceptible to separation into parts. Accordingly,
the defendant’s conviction of both offenses did not vio-
late his constitutional protection against double jeop-
ardy. Because we conclude that the charges arose from
separate acts, we need not move to the second step of
our double jeopardy analysis.
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 53a-101 (a) provides in relevant part: ‘‘A person is
guilty of burglary in the first degree when . . . (3) such person enters or
remains unlawfully in a dwelling at night with intent to commit a crime
therein.’’
2
General Statutes § 53a-100aa (a) provides in relevant part: ‘‘A person is
guilty of home invasion when such person enters or remains unlawfully in
a dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein, and, in the
course of committing the offense: (1) Acting either alone or with one or
more persons, such person or another participant in the crime commits or
attempts to commit a felony against the person of another person other than
a participant in the crime who is actually present in such dwelling . . . .’’
3
Practice Book § 43-22 provides that ‘‘[t]he judicial authority may at any
time correct an illegal sentence or other illegal disposition, or it may correct
a sentence imposed in an illegal manner or any other disposition made in
an illegal manner.’’
4
We note that the defendant did not seek a bill of particulars to aid in
our analysis.
5
Robbery is defined in General Statutes § 53a-133, which provides in
relevant part: ‘‘A person commits robbery when, in the course of committing
a larceny he uses or threatens the immediate use of physical force upon
another person for the purpose of . . . compelling the owner of such prop-
erty or another person to deliver up the property or to engage in other
conduct which aids in the commission of the larceny.’’ (Emphasis added.)
6
The defendant argues in his reply brief that one of the state’s arguments
in the present case is analogous to one of its arguments in White, in which
it argued that the commission of the burglary was completed upon entry
into the home and, therefore, any actions subsequent to the burglary were
not incidental to the burglary. Although the state’s brief in the present case
does state that the burglary was completed upon entry into the dwelling,
the state also acknowledged that the burglary continued as long as the
defendant and Maner remained in the dwelling. By use of the word ‘‘com-
pleted,’’ the state appears to mean that liability for burglary attached upon
entry into the dwelling.
7
In Salamon, our Supreme Court reexamined this state’s kidnapping stat-
utes in holding that a defendant could not be convicted of kidnapping if
restraint of a victim was merely incidental in the commission of a separate
offense. See State v. Salamon, supra, 287 Conn. 509.