text:
    State of Connecticut v. Stephen Barnes State of Connecticut v. Donald Bradley
    (5617)
    (5674)
    Spallone, Norcott and Foti, Js.
    Argued May 20
    decision released September 20, 1988

      Barbara J. Sorentino and Lauren Weisfield for the appellants (defendants).

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was Roland Fasano, assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendants, Stephen Barnes and Donald Bradley, appeal from their convictions, following a jury trial, of the crime of aiding the commission of a burglary in the second degree in violation of General Statutes §§ 53a-8 and 53a-102. The cases against the defendants were joined for trial and each has filed a separate appeal. This opinion will serve as our decision in both appeals.

The defendants claim that the trial court erred (1) in denying their motions to dismiss, which alleged an illegal arrest or seizure, and their motions to suppress evidence, identifications and certain statements, alleged to be the fruits of such illegality, (2) in restricting the scope of voir dire during jury selection, (3) in refusing to suppress a witness’ pretrial out-of-court identification of the defendants as unnecessarily suggestive or unreliable and by permitting the witness to make an in-court identification of the defendants, and (4) in instructing the jury on the use of inferences, in commenting on the evidence and by reading back to the jury the direct testimony of a state’s witness.

The jury could reasonably have found the following facts. In December, 1984, Cynthia Carroll and her roommate shared an apartment on Fountain Street in the Westville section of New Haven. At approximately 1 a.m. on December 26, 1984, Carroll and her fiance, Glenn Ifill, were engaged in a conversation in the apartment when they heard noises emanating from the living room and, assuming it was Carroll’s roommate, called out to her. When no one answered, Ifill walked into the living room where he observed Christmas gifts, which previously had been neatly arranged, scattered about the room. He also noticed that a window overlooking a small courtyard, which had been closed, was open. Ifill then proceeded to the open window and observed two black males in the courtyard, their backs toward him. The men were about seven feet away and appeared to be carrying Christmas gifts and packages. Ifill called out, whereupon both men turned and looked directly at him. They then turned away and ran toward Central Avenue. Ifill jumped from the window, but fell and was unable to give chase. He returned to the apartment and, at his request, Carroll called the police.

At about the same time, Officer James Kelley of the New Haven police department was alone in a marked police cruiser patrolling the Westville area. As Kelley was driving east on Whalley Avenue, he observed two black males laden with Christmas gifts and packages run across Whalley Avenue. The men had come from the direction of Central Avenue and were looking back over their shoulders. After crossing the street, the two men first ran in the direction of the cruiser, then turned and ran into the driveway of a commercial building. Kelley followed the men into the driveway. When the men again looked back toward him, he recognized one of them as the defendant Barnes, a person Kelley knew as “Mousie.”

The two men threw down the packages they were carrying and continued running. After Kelley drove as far into the driveway as he was able, he exited his vehicle and watched the men run down an embankment and scale a fence. At that point, having lost sight of the men, Kelly abandoned the squad car and ran back out to Whalley Avenue. There he regained sight of the defendants as they ran across Whalley Avenue and entered a nearby convenience store. Believing that the two men he had seen running into the store were the same men he had been chasing, Kelley, alone and without backup, entered the store with his gun drawn. Once inside, he saw Barnes and another man, later identified as the defendant Bradley, breathing heavily and sweating.

Kelley detained the defendants until the arrival of Officer Michael Criscuolo some five to ten minutes later. A pat down of each defendant for weapons revealed nothing. The officers then brought the defendants back to the location where the squad car was parked and where the gifts had been discarded. While in the process of gathering the packages, Kelley received notice over the police radio of the burglary complaint that had been filed by Carroll. The officers then transported the defendants, along with the packages, to Fountain Street, arriving about fifteen minutes after the crime had been committed. Following a discussion with Carroll and Ifill, Kelley told them “he had the stuff and the individuals who took it.” Upon Kelley’s request, Carroll and Ifill went outside where Carroll identified the gifts, now located in the squad car, as those taken from her apartment, and Ifill positively identified the defendants as the men he had seen in the courtyard twenty minutes earlier. As the defendants were being removed, Bradley asked Kelley to lock up Bradley’s car which he said was nearby on Tour Avenue. The car was located where Bradley said it would be.

The defendants were subsequently tried to a jury and convicted of the crime of aiding the commission of a burglary in the second degree. From their convictions, they now appeal.

We will first address the defendants’ second claim of error, that the trial court erred by restricting the scope of voir dire. We agree and, therefore, conclude that a new trial must be held.

During the voir dire of the first three prospective jurors, counsel for the defendant Bradley asked each of them whether, “for religious or other reasons,” the fact that the burglary occurred the day after Christmas would affect their ability to be fair. Prior to the voir dire, the court informed the panel of the date of the burglary, December 26, but not the time, 1 a.m. After two jurors had been seated, and one excused by Barnes’ attorney, the state objected to the question about Christmas. The court sustained the state’s objection and asserted that defense counsel had “injected” Christmas into the trial. The court ordered her to “just leave Christmas out of it. Let’s not get into Christmas or Santa Claus or anything like that. It has nothing to do with the charge.” The court posited that because the word “Christmas” did not appear in the information, the crime simply “did not happen at Christmas.” The court also stated that it would not permit the voir dire question because it would “arouse people’s emotions.” Defense counsel urged upon the court the necessity of exploring the topic of Christmas, took exception to the court’s ruling and made it clear that, but for the court’s blanket prohibition, each potential juror would have been asked the question. Following the court’s refusal to allow defense counsel to mention Christmas, defense counsel moved that the state be ordered to refrain from the mention of Christmas or Christmas gifts in the presence of the jury. The motion was denied and an exception was taken. We agree with the defendants that the trial court erred in limiting the scope of the voir dire to exclude any reference to Christmas.

Our state constitution provides that in all civil and criminal actions tried before a jury, the parties shall have the right to challenge jurors peremptorily, with the number of such challenges to be established by law. Conn. Const., art. I, § 19. In addition, there is a statutory right to a voir dire examination of each prospective juror in a criminal action. See General Statutes §§ 54-82f, 54-82g. It is settled law in Connecticut that “[t]he right to question each juror individually by counsel shall be inviolate.” Conn. Const., art. I, § 19; see, e.g., State v. Dolphin, 203 Conn. 506, 511, 525 A.2d 509 (1987); Lamb v. Burns, 202 Conn. 158, 162, 520 A.2d 190 (1987); State v. Hill, 196 Conn. 667, 671-72, 495 A.2d 699 (1985); State v. Marsh, 168 Conn. 520, 521, 362 A.2d 523 (1975). Although the extent of the voir dire rests largely within the discretion of the trial court, and the exercise of such discretion will not constitute reversible error unless it clearly has been abused or harmful prejudice appears to have resulted; State v. Dolphin, supra, 512; State v. Rogers, 197 Conn. 314, 318, 497 A.2d 387 (1985); State v. Haskins, 188 Conn. 432, 447, 450 A.2d 828 (1982); State v. Anthony, 172 Conn. 172, 176-77, 374 A.2d 156 (1976); nevertheless, in exercising such discretion the court should grant such latitude as is reasonably necessary to accomplish the twofold purpose of voir dire: to permit the trial court to determine whether a prospective juror is qualified to serve, and to aid the parties in exercising their right to peremptory challenges. State v. Rogers, supra; State v. Haskins, supra, 446. Therefore, “ ‘if there is any likelihood that some prejudice is in the juror’s mind which will even subconsciously affect his decision of the case, the party who may be adversely affected should be permitted questions designed to uncover that prejudice. This is particularly true with reference to the defendant in a criminal case.’ State v. Higgs, 143 Conn. 138, 142, 120 A.2d 152 (1956).” State v. Rogers, supra; 318; State v. Fritz, 204 Conn. 156, 161, 527 A.2d 1157 (1987).

The Christmas holiday is an event that is conspicuously celebrated to a greater or lesser degree throughout this country. Such celebration is manifest in many ways ranging from quiet reflection to overt public jubilation and covering the entire spectrum in between. “Christmas is a national holiday, celebrated by nonobservant Christians and many non-Christians, as well as by believing Christians.” American Civil Liberties Union v. St. Charles, 794 F.2d 265, 271 (7th Cir.), cert. denied, 479 U.S. 961, 107 S. Ct. 458, 93 L. Ed. 2d 403 (1986). “The joy of Christmas to believing Christians is inseparable from the salvation of man . . . .’’Id., 273. Christmas is “a significant historical religious event long celebrated by the Western World.” Lynch v. Donnelly, 465 U.S. 668, 680, 104 S. Ct. 1355, 79 L. Ed. 2d 604 (1984). It is that holiday which is universally associated with “a friendly community spirit of good will.” Id., 685.

The distinctive air of brotherhood and goodwill is especially highlighted in the exchange of greetings and gifts during the Christmas season. The charges in this case, that the defendants stole Christmas gifts from under a Christmas tree, may to some be considered extremely offensive and may color their ability to be fair, while it may not affect the perspective of others in any manner. Clearly, however, the potential exists that a prospective juror, by the very nature of the allegations, may be unable to assess dispassionately the guilt or innocence of the accused. The very essence of the voir dire is to unearth any latent bias or prejudice which may be present in the mind of a juror that would impact negatively on his or her ability to determine fairly the issues in a case. The prospective juror’s attitude toward Christmas and whether a crime, which appears to run counter to the Christmas spirit, affects the juror’s ability to hear the case, are reasonable, logical and natural questions to be asked at voir dire. Any juror who expressed an inability to render a fair and impartial verdict because of either strong religious feelings about Christmas, or because of an especially strong sense of outrage at the burglary of Christmas gifts from under a Christmas tree would have been unqualified for jury service under General Statutes § 54-82f, and thus susceptible to being excused for cause by the court. Further, had the question been allowed, defense counsel would have been in a position to gauge any hesitation or reluctance in the juror’s responses or detect any inclination in the juror to reach a verdict based on emotional factors. Although a juror’s answers may not have risen to a level requiring removal for cause, the information elicited from the juror’s responses would have allowed defense counsel an opportunity to exercise intelligently her client’s constitutional right peremptorily to challenge potential jurors. The court’s order denying this line of questioning abridged the defendants’ right to a fair trial and constitutes harmful error. See State v. Fritz, supra, 165-66; State v. Dolphin, supra, 516; State v. Hill, supra, 673.

Although a new trial must be ordered in this case, we will address the defendants’ first and third claims of error because of the likelihood that the same issues will arise at the new trial.

In their first claim of error, the defendants contend that they were arrested illegally and, therefore, the trial court should have granted their motions to dismiss and to suppress any evidence or statements resulting therefrom as the fruits of an illegal arrest. We disagree and hold that the actions of Kelley were warranted under the facts and circumstances in this case, and that no illegal arrest occurred.

We note that when Kelley first observed the defendants, they were laden with Christmas gifts and running while looking back over their shoulders. The officer did nothing to prompt the defendants’ flight. The sudden appearance of two men running through the area of a city, known for burglaries, heavily laden with Christmas packages and looking back over their shoulders is reasonably likely to provoke suspicion and to justify further investigation. Confronted with such behavior, the police are not required to stand by helplessly because there is no probable cause at that point to support an arrest. See Adams v. Williams, 407 U.S. 143, 92 S. Ct. 1921, 32 L. Ed. 2d 612 (1972); United States v. Jones, 759 F.2d 633, 638 (8th Cir.), cert. denied, 474 U.S. 837, 106 S. Ct. 113, 88 L. Ed. 2d 92 (1985); People v. Washington, 192 Cal. App. 3d 1120, 236 Cal. Rptr. 840 (1987).

When the defendants realized that Kelley was following them, they threw down the packages, begun to run faster, descended an embankment and scaled a fence, all in an obvious attempt to evade the officer. At this point, Kelley would have been fully justified in detaining the two men on the basis of a reasonable suspicion grounded in specific and articulable facts that they may have been or were about to be involved in a crime. United States v. Hensley, 469 U.S. 221, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Although Kelley was unable to make a stop at that point, upon his regaining sight of the defendants entering the convenience store, he still possessed good reason to conduct an investigative stop.

After being joined by Criscuolo, the two officers proceeded in accordance with the practice of good police work. They escorted the defendants back to the area where the defendants had discarded the packages. Here, Kelley received word that a burglary involving Christmas packages had taken place. At this point, what had begun as rather questionable behavior, then became suspicious behavior and finally evolved into probable cause to justify an arrest when Kelley learned of the burglary involving Christmas packages. All of this occurred within a few minutes of the commission of the crime and in the same immediate neighborhood.

We hold that the trial court correctly concluded that the initial arrest of the defendants was not illegal. Because the first arrest was legal, the trial court correctly denied the defendants’ motions to dismiss and to suppress. The defendants’ actions in this case could not reasonably be explained as innocent behavior. Their actions, which included apparent flight, discarding the packages, furtiveness and evasiveness, were indicative of criminal behavior. See State v. Paoletto, 181 Conn. 172, 182, 434 A.2d 954 (1980); State v. Rodriguez, 14 Conn. App. 574, 577-79, 542 A.2d 342 (1988); State v. Williamson, 10 Conn. App. 532, 540-41, 524 A.2d 655, cert. denied, 204 Conn. 801, 525 A.2d 965 (1987). Here, as in Rodriguez and Williamson, the police did nothing illegal; the behavior of the defendants was not induced by the police. The defendants’ plight resulted from, their own wilful commission of incriminating acts justifying first a Terry stop, and then a lawful arrest. Terry v. Ohio, supra. The trial court did not err in denying the defendants’ motions to dismiss and to suppress.

Finally, the defendants claim error in the trial court’s denial of their motion to suppress Ifill’s out-of-court identification which was the result of the earlier show-up. The defendants argue that the one-on-one identification resulted from unnecessarily suggestive police procedure and was unreliable and, therefore, that Ifill’s subsequent in-court identification was impermissibly tainted. We disagree.

“The determination of whether an identification procedure offends a defendant’s due process rights depends on (1) whether the procedure was impermissibly and unnecessarily suggestive, and (2) if so, whether the identification was nevertheless reliable based on the totality of the circumstances. State v. Pollitt, 205 Conn. 132, 162, 521 A.2d 125 (1987), and cases cited therein.” State v. Bell, 13 Conn. App. 420, 424, 537 A.2d 496 (1988); see also State v. Sims, 12 Conn. App. 239, 242, 530 A.2d 1069 (1987). To prevail on their claims, the defendants must show that the trial court erred in determining both the “suggestiveness” and “reliability” of the identification. State v. Sims, supra, 242-43.

“ 'While a one-on-one confrontation between a victim of a crime and a person whom the police present as a suspect is presumptively suggestive, it does not automatically follow that such a show-up is impermissibly suggestive. State v. Collette, 199 Conn. 308, 310, 507 A.2d 99 (1986). Prompt on-the-scene confrontations tend under some circumstances to ensure accurate identifications and the benefit of promptness not only aids reliability but permits a quick release of an innocent party if there is no positive identification, allowing the police to resume the investigation with only a minimum of delay. State v. DeJesus, 7 Conn. App. 309, 315-16, 508 A.2d 463 (1986).’ State v. Sims, [supra, 242].” State v. Bell, supra, 425.

The show-up in this case occurred only twenty minutes after the burglary was committed. See, e.g., State v. Sims, supra (thirty-five minutes); State v. Tate, 9 Conn. App. 141, 143, 516 A.2d 1375 (1986) (less than one hour). The defendants were carrying items that fit the subsequent description of the nature of the items reported stolen. When the officers brought the defendants back to the site where the defendants had discarded the packages, and when the officers learned that a burglary involving Christmas gifts had occurred in the immediate area, it was important that they determine promptly whether the defendants were involved. See, e.g., State v. Collette, supra, 311; State v. Hamele, 188 Conn. 372, 378, 449 A.2d 1020 (1982); State v. Sims, supra, 242; State v. Tate, supra, 145.

Although Kelley’s statement to Ifill to the effect that he had the perpetrators in custody was inappropriate, it did not render the show-up unreliable. A one-on-one show-up, regardless of whether any statements are made expressing the opinion of the police as to their belief that they have the perpetrators in custody, is inherently suggestive because the police, by presenting a suspect to a victim, are implicitly communicating a belief that they have apprehended the actual perpetrator. See, e.g., State v. Graham, 13 Conn. App. 554, 561, 538 A.2d 236 (1988). Any communication to the victim expressing the officer’s beliefs, because of the very nature of a show-up, is simply redundant. The record furnishes no basis to conclude that Kelley’s statement influenced Ifill’s identification. See, e.g., id., 561-62. Ifill testified at the trial that his identification of the defendants was based on his own observation of them and was not influenced by Kelley’s statements. There is no reason to conclude that Ifill, simply because of Kelley’s statement, felt any more pressure to make an identification than the victims in State v. Mitchell, 204 Conn. 187, 198-99, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987), State v. Foster, 13 Conn. App. 214, 219-20, 535 A.2d 393 (1988), or State v. Sims, supra, 242. Under the circumstances of this case, the confrontation between Ifill and the defendants was reasonably necessary and an acceptable and permissible investigative technique. State v. Mitchell, supra, 199; State v. Sims, supra. We cannot say that the determination by the trial court that the show-up in this case, although suggestive, was not impermissibly so, was clearly erroneous. Practice Book § 4061.

We decline to address the defendants’ fourth claim of error as the circumstances giving rise to these issues are not likely to occur upon retrial.

There is error, the judgments are set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In the presence of the jmy, the prosecutor and his three witnesses made no fewer than thirty-three references to Christmas, Christmas tree, Christmas tree lights, Christmas gifts and Christmas packages. In addition, the prosecutor referred to the subject of Christmas thirteen times in its summation, and the court referred to Christmas three times in its marshalling of the evidence during its charge to the jury.

       “[General Statutes] Sec. 54-82f. voir dire examination. In any criminal action tried before a jury, either party shall have the right to examine, personally or by his counsel, each juror outside the presence of other prospective jurors as to his qualifications to sit as a juror in the action, or as to his interest, if any, in the subject matter of the action, or as to his relations with the parties thereto. If the judge before whom the examination is held is of the opinion from the examination that any juror would be unable to render a fair and impartial verdict, the juror shall be excused by the judge from any further service upon the panel, or in the action, as the judge determines. The right of such examination shall not be abridged by requiring questions to be put to any juror in writing and submitted in advance of the commencement of said action.”
      “[General Statutes] Sec. 54-82g. (Formerly Sec. 51-242). peremptory challenges IN criminal prosecution. The accused may challenge peremptorily, in any criminal trial before the superior court for any offense punishable by death, twenty-five jurors; for any offense punishable by imprisonment for life, fifteen jurors; for any offense the punishment for which may be imprisonment for more than one year and for less than life, six jurors; and for any other offense, three jurors. In any criminal trial in which the accused is charged with-more than one count on the information or where there is more than one information, the number of challenges is determined by the count carrying the highest maximum punishment. The state, on the trial of any criminal prosecution, may challenge peremptorily the same number of jurors as the accused.”


source: Caselaw Access Project

author: Stoughton, J.

license: Public Domain

text:
    State of Connecticut v. Edward L. Anderson
    (6221)
    Bieluch, Daly and Stoughton, Js.
    Argued June 17
    decision released September 27, 1988

      Kent Drager, assistant public defender, with whom, on the brief was Joette Katz, public defender, for the appellant (defendant).

      Harry Weller, deputy assistant state’s attorney, with whom, on the brief, was Jeremy Weingast, former assistant state’s attorney, for the appellee (state).
   Stoughton, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of the crime of assault in the first degree in violation of General Statutes § 53a-59 (a) (1). The defendant claims that the trial court erred (1) in allowing the defendant’s prior conviction into evidence under its full title, (2) in failing to instruct the jury in accordance with the defendant’s request to charge, (3) in stating that the defendant’s use of a knife constituted deadly force, thus removing a factual issue from the jury’s consideration, and (4) in improperly instructing the jury on the offense of assault in the first degree. We find no error.

The jury could reasonably have found the following facts. The defendant, Edward Anderson, and the victim, Pedro Ortiz, were involved in a traffic accident on Garden Street in Hartford. The fenders of their automobiles became locked and the defendant and Ortiz became embroiled in an argument. Ortiz picked up the defendant and threw him onto the hood of his car. The defendant then got back into his car while Ortiz stood by a nearby fence. A neighborhood crowd gathered around the scene of the accident. About five minutes later, the defendant left his car with a butcher knife concealed in his coat. He went around the crowd and tried to stab Ortiz. Shawn Grant, a friend of Ortiz, tried to stop the defendant and suffered cuts on his fingers. The defendant stabbed Ortiz twice in the side. Ortiz then ran down the street, but was stabbed in the back twice by the defendant. He was stabbed again when he stopped. The crowd then disarmed the defendant and beat him. The defendant subsequently escaped from the area before the police arrived.

I

The defendant elected to take the stand and raised, by way of a motion in limine, the admissibility of certain prior convictions for purposes of impeachment. The defendant’s first claim is that the trial court erred in not ruling that the defendant’s prior conviction in Massachusetts for “conspiracy to commit armed robbery” could be referred to only as either “a felony involving larcenous intent” or as “conspiracy to commit robbery.” The defendant contends that by allowing his prior conviction to be referred to by its complete title, he was unfairly prejudiced. We disagree.

It is well established that the state may impeach the testimony of a criminal defendant by offering into evidence the defendant’s previous conviction of a crime carrying a term of imprisonment for more than one year. State v. Crumpton, 202 Conn. 224, 520 A.2d 226 (1987); State v. DelVecchio, 7 Conn. App. 217, 508 A.2d 460 (1986); see General Statutes § 52-145 (b). The admission of such evidence, however, is not automatic. The trial court must first weigh the probative value of the evidence against its prejudicial effect on the defendant. State v. Crumpton, supra, 228; State v. DelVecchio, supra, 219. This balancing process considers three factors: (1) the extent of the prejudice likely to arise; (2) the extent to which the particular crime relates to truthfulness and honesty; and (3) how much time has passed since the time of the prior conviction. State v. Crumpton, supra; State v. Sergi, 7 Conn. App. 445, 451, 509 A.2d 56 (1986). Evidence of prior convictions should be admitted unless the trial court finds its prejudicial effect “far outweighs its probative value.” State v. Crumpton, supra; State v. Geyer, 194 Conn. 1, 6-7, 480 A.2d 489 (1984).

“Prior convictions which are admissible for purposes of impeachment have been divided into two categories: (1) those crimes which by their nature indicate a disposition toward dishonesty or a tendency to make false statements . . . which also include more recently, crimes involving larcenous intent; and (2) those crimes which do not reflect directly on the credibility of one who has been convicted of them. State v. Schroff, 3 Conn. App. 684, 687, 492 A.2d 190 (1985).” State v. DelVecchio, supra, 220. Crimes that reflect a lack of veracity are highly probative of a witness’ credibility, and are therefore more likely to be admissible. State v. Geyer, supra, 15-16 n.9. Conversely, crimes that do not directly reflect on credibility are less probative and thus entitled to less weight in the balancing process. Id., 13.

Our Supreme Court has declared, however, that the admission into evidence of prior convictions that do not directly reflect on credibility need not be barred even though specifically naming the crime might result in extraordinary prejudice. In State v. Geyer, supra, 16, the court suggested that prior convictions that do not directly reflect on credibility might be referred to as “an unspecified crime” or “crimes carrying a penalty of more than one year.” In this way, the character of a defendant could be impeached without subjecting the defendant to the extraordinary prejudice that might follow if the prior crime was specifically named. Id.

Our Supreme Court made it abundantly clear in State v. Crumpton, supra, that the Geyer holding was a limited one. In Crumpton, the court dealt with the admission of the defendant’s prior conviction for robbery in the second degree. The court refused to accept the defendant’s argument that because a robbery charge has both an aspect of larceny, which bears on credibility, and an aspect of violence, which is not as probative of credibility, the prior conviction should have been entered into evidence as an unspecified felony. State v. Crumpton, supra, 232. The court expressly agreed with our previous determination that the crime of robbery is inextricably intertwined with the crime of larceny, and thus directly relevant to credibility. Id., 229 n.6. The court therefore upheld the refusal of the trial court to sanitize the prior conviction of robbery-in the second degree. Id., 233.

This court will upset a trial court’s order denying such a motion to exclude a defendant’s prior record, offered to attack his credibility, only if the trial court has abused its discretion. State v. Binet, 192 Conn. 618, 623, 473 A.2d 1200 (1984). “ ‘The test used in determining if the court abused its discretion is whether the court could reasonably conclude as it did, and every reasonable presumption will be made in favor of the correctness of its action.’ State v. Johnson, 4 Conn. App. 672, 673, 496 A.2d 522 (1985).” State v. Woodard, 11 Conn. App. 499, 506, 528 A.2d 404, cert. denied, 205 Conn. 802, 531 A.2d 940 (1987). We find no abuse of discretion here. In this case, there is little, if any, similarity between the prior conviction, conspiracy to commit armed robbery and the crime for which the defendant stood accused, assault in the first degree. There is little danger, therefore, that the prior conviction would result in the type of extreme prejudice that is generated when the defendant’s prior conviction is for the same crime as that for which the defendant stands accused. See State v. Graham, 200 Conn. 9, 12, 509 A.2d 493 (1986); State v. Wright, 198 Conn. 273, 278, 502 A.2d 911 (1986); State v. Geyer, supra, 6; State v. Carter, 189 Conn. 631, 644, 458 A.2d 379 (1983); State v. Woodard, supra, 506. Moreover, it does not reasonably follow from his conviction for conspiracy to commit armed robbery that the defendant ever used a weapon.

Furthermore, it is well established that a prior conviction of “robbery with violence” is admissible because it is directly relevant to credibility. State v. Crumpton, supra, 229 n.6; State v. DelVecchio, supra, 220; State v. Kuritz, 3 Conn. App. 459, 461, 489 A.2d 1053 (1985). We cannot discern how a prior conviction of conspiracy to commit armed robbery is any more prejudicial than one for “robbery with violence.” If at all, it would seem less so. This prior conviction, because it involved robbery, was directly probative of the defendant’s credibility. See State v. Crumpton, supra; State v. DelVecchio, supra. The trial court specifically and carefully weighed the probative value of this conviction against its prejudicial effect. The defendant has not demonstrated that the prejudicial effect of the prior conviction “far outweighed” its probative value. There is no merit to this claim.

II

The defendant’s second claim is that the trial court erred by failing to instruct the jury on self-defense in accordance with his request to charge. In particular, the defendant’s claim is that the instructions given prevented the jury from considering that the defendant was justified in using force because he felt threatened by a hostile crowd. It is the defendant’s contention that the instructions limited the jury to considering only the actions of the victim and the defendant in determining the justifiability of the defendant’s actions. We disagree.

“ ‘When a proper request is filed pursuant to Practice Book § 852 or exception is taken pursuant to § 854 the test is whether the charge properly covered the substance of the written request or properly and adequately covered the specific subject matter of the exception.’ State v. Kurvin, 186 Conn. 555, 561, 442 A.2d 1327 (1982). ‘ “[T]he charge must be considered from the standpoint of its effect on the jury in guiding them to a proper verdict.” State v. Bell, 153 Conn. 540, 544, 219 A.2d 218 (1966).’ State v. Williams, 182 Conn. 262, 269, 438 A.2d 80 (1980). ‘ “The trial court is not under a duty in a criminal proceeding to charge in the identical language requested if its charge is accurate, adequate and, in substance, properly includes material portions of the defendant’s request; its responsibility is performed when it gives instructions to the jury in a manner calculated to give them a clear understanding of the issues presented for their consideration, under the offenses charged and upon the evidence, and when its instructions are suited to their guidance in the determination of those issues.” State v. Harden, 175 Conn. 315, 322-23, 398 A.2d 1169 (1978).’ State v. Harrell, 199 Conn. 255, 269, 506 A.2d 1041 (1986); see also State v. Fuller, 199 Conn. 273, 279, 506 A.2d 556 (1986); State v. Timmons, 7 Conn. App. 457, 463, 509 A.2d 64 (1986).” State v. Delgado, 13 Conn. App. 139, 144-45, 535 A.2d 371 (1987).

The defendant complains that the trial court, in instructing the jury on the law of self-defense, made numerous references to the victim’s actions, but only one reference to the crowd present at the time of the assault. The crux of the defendant’s argument is that, in effect, the jury was not told it could take the presence of the crowd into consideration in determining the reasonableness of the defendant’s actions. Our review of the trial court’s instructions does not support the defendant’s allegation. While it is true that the trial court used the word “crowd” only onee, through the use of other language, the court clearly invited the jury to consider in its determination of the reasonableness of the defendant’s actions that a crowd was present.

The trial court told the jury that “the kind of scene that was taking place between the defendant and the victims and the crowd was gathered about . . . would bear upon the reasonableness of the defendant’s assessment of the situation that he was in.” Later, the court stated, “[t]he danger or apparent danger claimed by the defendant in this case is to be determined from his standpoint at the time of the incident and under all of the existing circumstances.” These particular instructions, along with the other references the trial court made to the “scene” and “circumstances” at the time of the assault, fairly and adequately encompassed the defendant’s request to charge concerning the law of self-defense. See State v. Delgado, supra, 146.

Ill

The defendant’s third claim of error is that the trial court instructed the jury that the defendant’s use of the knife constituted deadly force and that, in doing so, it effectively directed a verdict that the defendant was using deadly force. This, the defendant maintains, played a substantial role in the jury’s rejection of his claim of self-defense. He did not except to the charge at trial, but maintains that this claim is nevertheless reviewable under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973). We agree. State v. Flynn, 14 Conn. App. 10, 32, 539 A.2d 1005 (1988). “Although a trial court may, in its discretion, make reasonable comments on the evidence; State v. Schoenbneelt, 171 Conn. 119, 124, 368 A.2d 117 (1976); it may not direct or advise the jury how to decide the case. State v. Storlazzi, 191 Conn. 453, 465, 464 A.2d 829 (1983); State v. Nims, 8 Conn. App. 631, 640, 513 A.2d 1280, cert. denied, 201 Conn. 812, 516 A.2d 887 (1986). This rule is premised on a criminal defendant’s constitutional right to have issues of fact decided by a jury and not by a court. State v. Hines, 187 Conn. 199, 210, 445 A.2d 314 (1982).” State v. Flynn, supra, 33; State v. Fenn, 16 Conn. App. 318, 329-30, 547 A.2d 576 (1988).

During its instructions to the jury with respect to self-defense, the trial court made the following remarks: “I remind you that the use of deadly force which in this case involved a knife, you may find that the knife was capable of causing serious physical injury or not. The use of deadly force, that knife, is reasonable only to resist the threat of death or serious physical harm.” This, the defendant contends, operated to remove from the jury’s consideration whether the force used by the defendant was deadly or “reasonably expected to cause death or serious physical injury.” General Statutes § 53a-3 (5). We disagree.

A view of the challenged instruction in its entirety reveals that the trial court did not advise the jury how to resolve this issue in the case. The disputed statement was made in that part of the instruction where the court was explaining the various circumstances under which the defendant’s use of deadly physical force would be justified. The trial court’s reference to the knife was merely to indicate to the jury that the knife was the only instrument the defendant was alleged to have used and the only evidence presented that would have justified the jury’s finding that deadly physical force was used by the defendant. The court’s instructions adequately presented the case to the jury. Viewing the charge as a whole, and considering it from the standpoint of its probable effect upon the jurors in guiding them to a proper verdict in the case; State v. Foshay, 12 Conn. App. 1, 27, 530 A.2d 611, cert. granted, 205 Conn. 813, 532 A.2d 587 (1987); we find that the court’s statement was a permissible comment on the evidence rather than an instance of judicial factfinding. State v. Fenn, supra, 330-31.

IV

The defendant’s fourth claim of error is that the trial court erroneously presented the jury with an alternative form of the element of serious physical injury during its instructions on assault in the first degree for which there was insufficient evidence presented to the jury and which also allowed for a nonunanimous jury verdict. Although this instruction was not excepted to at trial, we will review this claim because it implicates the defendant’s fundamental constitutional right to have each element of the offense charged proven beyond a reasonable doubt. State v. Williams, 202 Conn. 349, 363, 521 A.2d 150 (1987).

In its instructions to the jury on the elements of assault in the first degree, the court stated that the jury must find that the defendant intended to and did cause serious physical injury to the victim. It provided the jury with the complete statutory definition of serious physical injury; General Statutes § 53a-3 (4); as follows: “The term, serious physical injury means, physical injury which creates a substantial risk of death or which causes serious physical disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.”

The defendant contends that there was no evidence presented that would support a finding that the victim suffered a serious physical injury because he was seriously disfigured. We disagree. Evidence was presented to the jury that the victim suffered permanent scars upon his chest and abdomen as a result of the defendant’s attack. The information and bill of particulars did not specify what form of serious physical injury was caused by the defendant. On these facts, the jury could readily have concluded that the victim suffered serious disfigurement and was thus seriously injured. There is no merit to this claim.

The defendant also asserts that the trial court erred in not instructing the jury that it had to be unanimous with respect to the specific form of serious physical injury suffered by the victim. We disagree.

This was not an instance where the trial court presented the jury with distinct, alternative methods of committing a crime. A specific unanimity charge is required only if a court instructs the jury that “ ‘the commission of any one of several alternative actions would subject a defendant to criminal liability, and those actions are conceptually distinct from each other.’ ” State v. Diorio, 12 Conn. App. 74, 81, 529 A.2d 1320, cert. denied, 205 Conn. 813, 532 A.2d 587 (1987), 484 U.S. 1065, 108 S. Ct. 1025, 98 L. Ed. 2d 990 (1988).

The jury did not have to agree on which type of serious physical injury took place. What they had to determine unanimously was whether the victim suffered a serious physical injury. The issue of whether the victim suffered serious physical injury was a question of fact for the jury to resolve. State v. Miller, 202 Conn. 463, 489, 522 A.2d 249 (1987). This is so even if they differed among themselves whether the victim suffered that serious injury by being faced with substantial risk of death, by suffering serious physical injury, serious impairment of health or the loss or impairment of any bodily organ. See State v. Diorio, supra, 82; State v. Jones, 193 Conn. 70, 77, 475 A.2d 1087 (1984); see also State v. Mancinone, 15 Conn. App. 251, 272-79, 545 A.2d 1131 (1988). We decline to review this claim further.

There is no error.

In this opinion the other judges concurred.

       The defendant claims that the jury could not be expected to understand that conspiring to do something is different from actually doing it. We give the jury more credit than does the defendant. It is not hard, conceptually, to understand that the defendant did not have to commit an armed robbery to be convicted of conspiracy to commit one. Thus, there is little chance of the confusion of which the defendant complains.

       The trial court refused to admit five other prior convictions for impeachment purposes after finding that their prejudicial effect outweighed their probative value.

       The trial court’s instructions provided in pertinent part: “The assault would be justifiable no matter whether appearances to the defendant had later proved to be true or false, provided they were such as to furnish reasonable grounds for his believing that Mr. Ortiz was using or about to use deadly physical force or was inflicting or about to inflict on him, great bodily harm. Now, the law goes on to say in a provision which is applicable to this case, notwithstanding what was just said, a person is not justified in using deadly physical force upon another person if he knows that he can avoid the necessity of using force with complete safety by retreating. And assault in self-defense in this case was not justified if the threatened harm to Mr. Anderson could otherwise have been avoided by his retreating from the scene. And you will remember that there is considerable evidence as to whether or not Mr. Anderson could have retreated from the scene. So Mr. Anderson would not have been justified in assaulting Mr. Ortiz if you find that Mr. Ortiz had abandoned the attack or — and particularly if he was in the act of fleeing from Mr. Anderson.
      “You can conclude that a person who’s being assaulted or who reasonably believes he’s about to be assaulted may use such force in such degree as he reasonably believes is necessary. The moment he steps over the line, however, and uses more force than he reasonably believes is necessary, then he becomes a wrongdoer and becomes guilty of a crime.
      “Now, on the issue, and both counsel have very well brought out the evidence which was produced here on the issue of justification or self-defense, if you prefer that term, there is testimony by — on the one hand by the victims and by other people that the state produced as to how the fight started, when and where the stabbings — different stabbings occurred, and the circumstances of the defendant and the victim Ortiz leaving the scene of the collision and proceeding up the street to the comer of Mather Street. There was testimony on the other hand from Alexis Smith as to what she saw and as to the kind of scene that was taking place between the defendant and the victims and the crowd was gathered around. That would bear upon the reasonableness of the defendant’s assessments of the situation that he was in. There was again, testimony from the defendant and Alexis Smith, again as to the circumstances with their leaving the initial scene and moving up the street on Mather Street. That would bear on the reasonableness of the force that the defendant employed. The danger or apparent danger claimed by the defendant in this case is to be determined from his standpoint at the time of the incident and under all of the existing circumstances, the act leading to the defendant’s claim of self-defense need not be an actual threat or assault. For example, you will remember that Mr. Anderson testified that he used a knife to stab Mr. Ortiz when Mr. Ortiz turned and the defendant believed Mr. Ortiz was going to kick or assault him. You don’t have to find that there was an actual threat or an assault by Mr. Ortiz, and the test is not what the other person, Mr. Ortiz, actually intended, but what Mr. Ortiz’s act caused the defendant reasonably to believe was Ortiz’s intention. In other words, you have to look from the defendant’s viewpoint. The danger need not have been actual if the defendant reasonably believed that it was actual or real or imminent or unavoidable. But in judging the danger to himself, the defendant is not required to act with infallible judgment, ordinarily on exercising the right of self-defense is required to act instantly of course, and without time to deliberate and investigate. Under such circumstances it is often possible to mistake an actual threat where none in fact existed, and the law does not require the same kind of coolness and judgment in estimating his danger at the time and at that scene, but of course now the jury can exercise.
      “Now, in order to maintain this claim of justification or of self-defense, the defendant may only use reasonable force to defend himself. And that is defined in our law as, the amount of force that would be used by an average person of ordinary intelligence acting under the same circumstances. And in deciding whether the force used in this case was reasonable, you may examine such factors as the physical attributes of the parties involved, that is the defendant and Mr. Ortiz, including their age, their height and their weight, the — I remind you that the use of deadly force which in this case involved a knife, you may find that that knife was capable of causing serious physical injury or not. The use of deadly force, that knife, is reasonable only to resist the threat of death or serious physical harm.”

       We note, parenthetically, that the defendant’s request to charge only contained two references to the word “crowd.”


author: Dupont, C. J.

text:
    State of Connecticut v. John Lonergan
    (5981)
    Dupont, C. J., Daly and O'Connell, Js.
    Argued April 12
    decision released September 27, 1988

      Geoffrey Marion, deputy assistant state’s attorney, with whom, on the brief, were Alan Reisner and James G. Clark, assistant state’s attorneys, and Janine D’Angelo, legal intern, for the appellant (state).

      James A. Wade, with whom were Raymond T. DeMeo and, on the brief, Sally S. King, for the appellee (defendant).
   Dupont, C. J.

The state appeals from the judgment rendered after the trial court’s dismissal of the information against the defendant charging him with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a. We find no error.

This case involves the following undisputed facts. On May 22, 1985, at approximately 9 p.m., the defendant was driving a car in an easterly direction on Airport Road in Hartford. While making a left turn into a restaurant driveway, the defendant’s car collided with a motorcycle, operated by Scott Sementilli, which was traveling in a westerly direction on Airport Road. The defendant was arrested and charged with operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a. The following day, May 23, 1985, Sementilli died as a result of the injuries he sustained during the collision. The defendant was subsequently arrested and charged with manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b. The defendant pleaded not guilty to both of these charges.

The state elected to sever the two counts and proceeded to trial on the manslaughter count only. The manslaughter count was then tried to the court. At the close of the state’s case-in-chief, the defendant moved for a judgment of acquittal. The trial court ruled that the state had failed to prove beyond a reasonable doubt that the defendant’s alleged intoxication had caused the death of Sementilli and, accordingly, granted the defendant’s motion for judgment of acquittal.

The state then sought to prosecute the defendant for operating a motor vehicle while under the influence of liquor. The defendant moved for a dismissal of the information charging him with operating while under the influence on the ground that the second prosecution was prohibited under the double jeopardy clauses of the federal and state constitutions.. U.S. Const., amend V; Conn. Const., art. 1, § 8.

In opposition to the defendant’s motion to dismiss, the state argued that the requirement in General Statutes § 53a-56b that the defendant’s conduct be “in consequence of his intoxication,” was distinct from the requirement in General Statutes § 14-227a that the defendant be “under the influence” of liquor. The state contended that because it was possible to prove “intoxication” without having first proven that the defendant was “under the influence,” § 53a-56b was not the “same offense” as § 14-227a for double jeopardy purposes. See generally Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

The trial court explicitly rejected the state’s argument and, in a memorandum of decision, stated: “While it is possible to be under the influence of intoxicating alcohol while not being intoxicated, it is impossible to be intoxicated while not, at the same time, be[ing] under the influence of alcohol.” On that basis, the trial court concluded that the defendant’s constitutional right against double jeopardy prevented the state from prosecuting him under § 14-227a and, accordingly, granted the defendant’s motion to dismiss the information. The state’s appeal followed.

On appeal, the state has abandoned the argument that it had made to the trial court, namely, that it was possible to prove intoxication without having first proven that the defendant was under the influence. Rather, the sole claim raised by the state in its appeal is that the two offenses are not the same for double jeopardy purposes because (1) the crime of operating under the influence requires proof that the defendant operated a vehicle in one of the geographical locations specified in the statute, an element not required by § 53a-56b, and (2) the crime of manslaughter in the second degree with a motor vehicle while intoxicated requires proof of the death of another person, an element not required by § 14-227a.

The defendant argues that we should decline to review the claim on appeal on the ground that it was not specifically raised in the trial court. Before considering the merits of this claimed error, then, we must decide whether it is properly before us. We conclude that it is.

Practice Book § 4185 provides that the appellate courts “shall not be bound to consider a claim unless it was distinctly raised at the trial.” (Emphasis added.) “The requirement that the claim be raised ‘distinctly’ means that it must be ‘so stated as to bring to the attention of the court the precise matter on which its decision is being asked.’ (Emphasis added.) Woodruff v. Butler, 75 Conn. 679, 682, 55 A. 167 (1903).” State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).

Although the focus of the state’s legal argument in support of its claim has shifted, there can be no real doubt that the claim made on appeal was the same claim, made in the trial court, namely, that the trial court should not dismiss the information charging an offense of § 14-227a because under the Blockburger line of cases, the offenses set forth in §§ 14-227a and 53a-56b are not the same offense for double jeopardy purposes because each offense involves proof of an element that the other does not. Accordingly, we will review the merits of the state’s claim of error as refined by the state on appeal. See State v. Dabkowski, 199 Conn. 193, 198, 506 A.2d 118 (1986).

The fifth amendment to the United States constitution declares that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” This amendment is fully applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). Although the Connecticut constitution does not include a specific double jeopardy provision, our Supreme Court “has long recognized as a fundamental principle of common law that no one shall be put in jeopardy more than once for the same offense.” State v. Langley, 156 Conn. 598, 600-601, 244 A.2d 366 (1968), cert. denied, 393 U.S. 1069, 89 S. Ct. 726, 21 L. Ed. 2d 712 (1969). The due process and personal liberty guarantees provided by article first, §§8 and 9, of the Connecticut constitution, therefore, have been held to encompass the protection against double jeopardy. Kohlfuss v. Warden, 149 Conn. 692, 695, 183 A.2d 626, cert. denied, 371 U.S. 928, 83 S. Ct. 298, 9 L. Ed. 2d 235 (1962).

One of the protections flowing from the double jeopardy guarantee is that against a second prosecution for the same offense after acquittal; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); or conviction. Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). “The constitutional prohibition against ‘double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957).

With reference to these interests, however, “the United States Supreme Court has consistently declined to hold that double jeopardy requires the prosecution ‘to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction.’ (Emphasis added.) Ashe v. Swenson, [397 U.S. 436, 453-54, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970)] (Brennan, J., concurring) . . . .” (Citation omitted.) State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985). Because not all offenses arising out of a single episode must be tried together, the state insists that the only test to be applied in this case is that set forth in Blockburger v. United States, supra. The state argues that application of the Blockburger test to this case yields the conclusion that an acquittal of the charge of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b does not bar a subsequent prosecution for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a.

In Blockburger v. United States, supra, the United States Supreme Court considered whether several offenses charged in a single prosecution were sufficiently different to permit the imposition of multiple sentences without violating the double jeopardy clause. It established a test emphasizing a comparison of the elements of the offenses. “The applicable rule is that 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 a fact which the other does not.” Id., 304. This test is a technical one and examines solely the statutes, charging instruments, and bill of particulars as opposed to the evidence presented at trial. Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975) (Blockburger test is satisfied if each offense requires proof of a fact that the other does not, notwithstanding substantial overlap in proof offered); see also State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982); State v. Flynn, 14 Conn. App. 10, 18, 539 A.2d 1005 (1988).

In Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), the United States Supreme Court extended the Blockburger test to apply to successive prosecutions. In that case, the defendant had pleaded guilty to a charge of joyriding, and was later indicted for auto theft, which was defined as “joyriding with the intent permanently to deprive the owner of possession.” Id., 167. Applying the Blockburger test, the court held that because the offense of joyriding required no proof beyond that necessary to convict the defendant of auto theft, the prosecution for theft was barred by the prior joyriding conviction. The Brown court reiterated that a proper application of the test depended on an analysis of the statutory elements of the offenses, rather than on the proofs actually offered at trial. Id., 166.

In applying the Blockburger test, it is clear that the offenses charged here do not constitute the “same” offense. Although the alleged violations arose out of the same act, each offense requires proof of a fact that the other does not. A conviction of manslaughter in the second degree with a motor vehicle while intoxicated requires proof of (1) operation of a motor vehicle (2) while intoxicated (3) which causes the death of another person. General Statutes § 53a-56b; see footnote 2, supra. A conviction of operating a motor vehicle while under the influence of intoxicating liquor or drugs, requires proof of (1) operation of a motor vehicle (2) on a public highway or on one of the other designated areas (3) while under the influence of intoxicating liquor or drugs. General Statutes § 14-227a; see footnote 1, supra.

While these two offenses share certain elements, each contains an element that the other does not. A conviction for operating a motor vehicle while under the influence of alcohol must be supported by proof that the defendant operated a motor vehicle on one of the locations specified in the statute; such a geographical element is not pertinent to a conviction for manslaughter with a motor vehicle while intoxicated. A conviction for manslaughter with a motor vehicle while intoxicated must be supported by proof that another person died as a result of the defendant’s intoxication; such a death element is not pertinent to a conviction for operating a motor vehicle while under the influence of alcohol. For these reasons, the two offenses are not the same under the Blockburger test.

The defendant concedes that the two offenses are not the same under a Blockburger analysis. He maintains, however, that although he could have been convicted of both offenses charged and received consecutive sentences on both convictions in a single prosecution without violating the double jeopardy clause, the second prosecution is nonetheless barred in this case because the same evidence used in the first prosecution will be the only evidence offered to prove the commission of the offense charged in the second prosecution. In support of his argument, the defendant contends that the United States Supreme Court’s application of double jeopardy principles in Illinois v. Vitale, supra, modified the application of the traditional Blockburger test to all postacquittal or postconviction prosecutions. We agree and hold that if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.

In Illinois v. Vitale, supra, the defendant struck and killed two children while driving an automobile. He was immediately charged with failing to reduce speed to avoid a collision. The defendant pleaded guilty and, after a trial to the court, he was convicted of that offense. The defendant was subsequently charged with involuntary manslaughter premised on the reckless operation of a motor vehicle, to which he defended on double jeopardy grounds.

The Supreme Court of Illinois dismissed the manslaughter charge, reasoning that the lesser offense of failing to reduce speed required no proof beyond that which was necessary for conviction of the greater offense and, therefore, the greater offense was, by definition, the same as the lesser offense included within it for purposes of the double jeopardy clause. In re Vitale, 71 Ill. 2d 229, 375 N.E.2d 87 (1978). In that decision, however, two justices dissented, arguing that each of the offenses charged required proof of a fact that the other did not. Id., 242. The dissent claimed that the traffic offense of failure to reduce speed need not involve death, whereas involuntary manslaughter need not involve an unlawful failure to reduce speed nor even the use of a motor vehicle.

On certiorari, the United States Supreme Court determined that the record did not contain sufficient information to answer the double jeopardy question under the Blockburger test in the context of Illinois law. The court, accordingly, vacated the judgment of the Illinois Supreme Court and remanded the case to that court for further proceedings because the United States Supreme Court was uncertain of the relationship between the two offenses under Illinois law, and did not know which reckless act or acts would be relied upon by the state to prove a violation of the manslaughter charge. Illinois v. Vitale, supra, 421.

That court discussed the three possibilities presented. First, the court stated that the double jeopardy clause would not prohibit a prosecution for involuntary manslaughter provided that a conviction for that offense would not always entail proof of a failure to reduce speed. “The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the ‘same’ under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.” Id., 419. Second, the court clarified that “[i]f, as a matter of Illinois law, a careless failure to slow is always a necessary element of manslaughter by automobile, then the two offenses are the ‘same’ under Blockburger and Vitale’s trial on the latter charge would constitute double jeopardy under Brown v. Ohio, supra.” Id., 419-20. Third, the court, in dictum, clouded the apparent applicability of the traditional Blockburger test, as previously set forth in the first and second possibilities, stating: “In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown and our later decision in Harris v. Oklahoma, [433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977)] .... By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.” Illinois v. Vitale, supra, 420-21.

The decision in Illinois v. Vitale, supra, has spawned debate as to whether the double jeopardy clause mandates a modification of the traditional Blockburger test in successive prosecution cases so as to contemplate an examination of the actual proof at trial. The Connecticut appellate courts have not had an opportunity to decide this issue.

Several courts have concluded that Vitale did not alter the traditional Blockburger test in successive prosecution cases, and continue to hold that the proper double jeopardy inquiry is whether each offense requires proof of an element not required by the other, without resort to the evidence adduced at trial. See, e.g., United States v. Genser, 710 F.2d 1426, 1429-31 (10th Cir. 1983); United States v. Phillips, 664 F.2d 971, 1005-1006 (5th Cir. 1981); United States v. Brooklier, 637 F.2d 620, 623-24 (9th Cir. 1980), cert. denied, 450 U.S. 980, 101 S. Ct. 1514, 67 L. Ed. 2d 815 (1981); State v. Seats, 131 Ariz. 89, 638 P.2d 1335 (1981) (en banc); Carlson v. State, 405 So. 2d 173 (Fla. 1981); People v. Jackson, 118 Ill. 2d 179, 514 N.E.2d 983 (1987), overruling People v. Zegart, 83 Ill. 2d 440, 415 N.E.2d 341 (1980), cert. denied, 452 U.S. 948, 101 S. Ct. 3094, 69 L. Ed. 2d 961 (1981); People v. Walker, 109 Ill. 2d 484, 488 N.E.2d 529 (1985).

These courts appear to apply an unmodified Blockburger analysis to successive prosecution cases for basically three reasons. The first reason is the statement in Vitale that Blockburger is “the principal test for determining whether two offenses are the same for the purposes of barring successive prosecutions.” Illinois v. Vitale, supra, 416; see, e.g., United States v. Brooklier, supra, 624. The second reason is the following statement made by Justice Rehnquist, regarding the import of the dicta in Vitale, in a dissenting opinion to a case in which the United States Supreme Court declined to clarify Vitale: “But I am reasonably sure that the Court did not intend to transmute the traditional double jeopardy analysis from an either ‘up or down’ inquiry based on the evidence required to prove the statutory elements of a crime into a ‘substantial claim’ inquiry based on the evidence the State introduced at trial.” Thigpen v. Roberts, 468 U.S. 27, 36, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984) (Rehnquist, J., dissenting). The third reason is the fact that three justices of the United States Supreme Court dissented to the denial of certiorari in a case where the Supreme Court of Illinois held that the double jeopardy clause had been violated because the state intended to use the same factual basis which supported the first conviction as the basis for the second conviction. People v. Zegart, supra, 445. The dissent emphasized that courts were required to look to the statutory elements of the first and second charges, not to the similarities of facts in the prosecution’s proof. Illinois v. Zegart, 452 U.S. 948, 951, 101 S. Ct. 3094, 69 L. Ed. 2d 961 (1981). (Burger, C. J., dissenting from denial of certiorari); see, e.g., People v. Jackson, supra.

We find these reasons unpersuasive. First, although Blockburger is the “principal test” employed in analyzing any double jeopardy claim, it is not the only test. Harris v. Oklahoma, supra; Ashe v. Swenson, supra; In re Nielsen, 131 U.S. 176, 95 S. Ct. 672, 33 L. Ed. 118 (1889). Second, the significance of Justice Rehnquist’s dissent in Thigpen v. Roberts, supra, as reflecting what a majority of the United States Supreme Court interprets Vitale as holding, is debatable. Third, the impact of the fact that three justices dissented to the denial of certiorari in Zegart is ameliorated by the impact of the denial itself. Although denials of certiorari by the United States Supreme Court have no precedential authority, the denial in Zegart certainly does not refute the argument that a majority of the court considers the Blockburger test as modified by inquiry into the repetition of proof to be the proper double jeopardy approach in successive prosecution cases. See, e.g., People v. Gartner, 143 Ill. App. 3d 113, 491 N.E.2d 927 (1986), overruled by People v. Jackson, supra.

We, therefore, decline to follow the holdings set forth in the above cases, and adopt instead the rationale advanced by those courts that have interpreted Vitale to mean that in successive prosecution cases, two offenses might be considered the “same offense” for double jeopardy purposes, despite dissimilar statutory elements, where the same evidence or conduct proves both offenses. See, e.g., Lee v. Probate Court, 807 F.2d 512, 514 (6th Cir. 1986); Flittie v. Sadem, 775 F.2d 933, 938-39 (8th Cir. 1985); Jordan v. Virginia, 653 F.2d 870, 873 (4th Cir. 1980); Pandelli v. United States, 635 F.2d 533, 539 (6th Cir. 1980); Jeffrey v. District Court, 626 P.2d 631, 636 (Colo. 1981) (en banc); Baker v. State, 425 So. 2d 36, 40 (Fla. App. 1983) (Sharp, J., concurring); State v. Ferrell, 67 Md. App. 631, 508 A.2d 1023 (1986); State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986); State v. DeLucca, 108 N.J. 98, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983); State v. Carter, 291 S.C. 385, 353 S.E.2d 875 (1987); State v. Grampus, 288 S.C. 395, 343 S.E.2d 26 (1986); Ex parte Peterson, 738 S.W.2d 688 (Tex. Crim. App. 1987); May v. State, 726 S.W.2d 573 (Tex. Crim. App. 1987) (en banc); c.f. Wilson v. Zant, 249 Ga. 373, 290 S.E.2d 442 (1982); Haynes v. State, 249 Ga. 119, 288 S.E.2d 185 (1982) (under state statute, where actual evidence used to establish one crime also establishes a different crime, the two crimes merge and a defendant can be convicted of only one of the crimes).

We are persuaded that the more accurate reading of Illinois v. Vitale is that it enhanced the protection afforded a defendant facing a second prosecution on proof of the same facts. Although Vitale does not suggest that it is necessarily a constitutional violation to offer the same evidence at a second prosecution, it is clear that the court was concerned that the same evidence would be offered at retrial solely to prove conduct that was a necessary element of the offense of which the defendant had already been convicted. The court, therefore, viewed the issue as whether, in retrospect, the state had merely proven a lesser or greater included offense. See Illinois v. Vitale, supra, 420-21, citing Harris v. Oklahoma, supra; Brown v. Ohio, supra.

The reasons for applying a modified Blockburger standard in this case are compelling. Successive prosecution cases involve the core values protected by the double jeopardy clause. Successive prosecutions implicate a component of double jeopardy protection not implicated in single prosecutions of joined charges such as those involved in Blockburger. It protects not only against multiple punishments but also against multiple trials for the same offense. See United States v. Wilson, 420 U.S. 332, 343-44, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975); Green v. United States, supra, 187-88; United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 161 (1916). When the issue is purely one of multiple punishments, the right to be free from vexatious proceedings simply is not present. The interest of the defendant in single trial prosecutions is in not having more punishment imposed than that intended by the legislature. When the issue is one of multiple trials, the double jeopardy clause vindicates principles of finality and repose of former judgments and of fundamental fairness that simply are not involved in a single prosecution of joined charges. Basically, it insures that having once “run the gauntlet” of a criminal trial to either a judgment of conviction or acquittal, a person ought not to be required to run essentially the same gauntlet again.

This rationale leads to our conclusion that the test for determining whether the “same offense” is involved in successive prosecution cases should be one more protective of criminal defendants than is the relatively strict analytical Blockburger test that is decisive in single prosecution cases. We therefore adopt the actual evidence test in successive prosecution cases because it is a standard with more practical flexibility than the Blockburger same evidence test, as it directs a pragmatic inquiry into whether the evidence actually used to establish a conviction in the first prosecution is identical to that which will be used to establish a conviction in the second prosecution.

Applying the modified Blockburger actual evidence test to this case, we hold that the prosecution of the defendant for operating while under the influence is barred as violative of the double jeopardy clause. Given the record before us, it is clear that the state intends to relitigate the issue of whether the defendant was operating while under the influence of intoxicating liquor. The record clearly shows that the state will rely on and seek to prove in the second prosecution for operating under the influence the same act of operating while intoxicated on a public roadway necessary to prove the manslaughter charge in the first prosecution. Because the defendant has already been acquitted of conduct that is here shown to be a necessary element of the less serious crime for which he has been charged, his claim of double jeopardy is substantial under Vitale. In this case, furthermore, the defendant's substantial claim is also a successful one.

Although the state may elect to sever for trial charges arising out of the same transaction or occurrence, it must do so in full cognizance of the enhanced double jeopardy protection afforded to the defendant as a result of forcing him to withstand more than one criminal prosecution.

There is no error.

In this opinion the other judges concurred.

       At the time of the incident, General Statutes (Rev. to 1985) § 14-227a provided in pertinent part: “operation while under the influence of LIQUOR OR DRUG OR WHILE IMPAIRED BY LIQUOR, (a) OPERATION WHILE under THE INFLUENCE. No person shall operate a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property while under the influence of intoxicating liquor or any drug or both.”

       At the time of the incident, General Statutes (Rev. to 1985) § 53a-56b provided: “(a) A person is guilty of manslaughter in the second degree with a motor vehicle while intoxicated when, in consequence of his intoxication while operating a motor vehicle, he causes the death of another person. For the purposes of this section, ‘intoxication’ shall include intoxication by alcohol or by drug or both.
      “(b) Manslaughter in the second degree with a motor vehicle while intoxicated is a class C felony and the court shall suspend the motor vehicle operator’s license or nonresident operating privilege of any person found guilty under this section for one year.”

       Under our penal code, “intoxication” is defined as “a substantial disturbance of mental or physical capacities resulting from the introduction of substances into the body.” General Statutes § 53a-7. In Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985), our Supreme Court attempted to distinguish, in a meaningful way, between those qualities incidental to “intoxication” and those qualities incidental to “under the influence”: “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. . . . When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his act or conduct that the public or parties coming in contact with him can readily see and know this is so.”

       In its memorandum of law in opposition to the defendant’s motion to dismiss the information, the state averred: “The state concedes, arguendo, that the same incident underlies both statutory offenses charged against the defendant. Thus, ‘[t]he applicable rule is that 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 a fact which the other does not.’ Blockburger v. United States, 284 U.S. 299, 304 [52 S. Ct. 180, 76 L. Ed. 306 (1932)]. As the defendant concedes the analysis ‘precludes examination of the evidence.’ State v. McCall, 187 Conn. 73, 90 [444 A.2d 896 (1982)], citing Illinois v. Vitale, 447 U.S. 410, 416 [100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980)]. Instead, an examination of the elements of the two crimes is essential. State v. Goldson, 178 Conn. 422, 424 [423 A.2d 114 (1979)], citing Brown v. Ohio, 432 U.S. 161, 166 [97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)].
      “In the initial proceedings against the defendant, the State would have had to prove that (1) in the consequence of his intoxication, (2) while operating a motor vehicle, (3) the defendant caused the death of another person. In the instant case the state must prove the defendant (1) operated a motor vehicle on a public highway, (2) while under the influence of intoxicating substance.” (Emphasis added.)
      Our review of the state’s memorandum in opposition makes clear that the claim raised therein was adequate to alert the trial court to the specific deficiency now claimed on appeal. State v. Carter, 198 Conn. 386, 396, 503 A.2d 576 (1986).

       We are mindful that there is no compulsory joinder statute in this state. The issues of whether a second prosecution is barred by a compulsory joinder law or barred by the double jeopardy clause are separate, independent and distinct issues. See Illinois v. Vitale, 447 U.S. 410, 421 n.10, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980).

       The United States Supreme Court has previously recognized that Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306 (1932), is not dispositive in successive prosecution cases where principles of collateral estoppel are applicable. Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). In that case, the defendant allegedly robbed six poker players in a single incident. He was first prosecuted for robbing four of the gamblers. After acquittal, he was prosecuted for robbing the other two gamblers. The court held that principles of collateral estoppel barred the second trial. Ashe v. Swenson, supra, firmly established that the doctrine of collateral estoppel is embedded in the fifth amendment guarantee against double jeopardy. Collateral estoppel may constitute a defense to the second prosecution where the doctrine operates to preclude consideration of those issues which were determined at the first trial, even though the offenses involved a,re separate and distinct. In order for the doctrine to apply, however, the defendant bears the “burden of proving that the fact-finder [in the first trial acquitted him because it resolved in his favor the very issue that he seeks to foreclose from consideration in the second trial].” United States v. Mespoulede, 597 F.2d 329, 333 (2d Cir. 1979).
      Although the defendant in the present case was acquitted of the manslaughter charge involved in the first prosecution, collateral estoppel principles do not apply here to bar the second prosecution for operating a motor vehicle while under the influence, because the acquittal at the first trial did not necessarily resolve the substantive issues of the offense charged at the second trial. The acquittal was based on the trial court’s finding that the state failed to prove that the defendant’s alleged intoxication caused the death of another person. The trial court did not appear to have resolved the issue of whether the defendant was intoxicated at the time of the fatal accident. As a result, a subsequent inquiry as to whether the defendant was operating a motor vehicle while under the influence of intoxicating liquor is not prohibited on collateral estoppel grounds.

       In Brown v. Ohio, 432 U.S. 161, 169 n.7, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), the United States Supreme Court recognized that an exception to the double jeopardy bar “may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence.” This exception is not applicable in the present case.

        In Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), the United States Supreme Court held that even though the Oklahoma felony murder statute did not on its face require proof of a robbery, a conviction for felony murder based on killing in the course of an armed robbery barred a subsequent prosecution for the robbery offense because the robbery was in fact the underlying felony, all elements of which had been proved in the murder prosecution. The Brourn court was mindful that the Blockburger test “is not the only standard for determining whether successive prosecutions impermissibly involve the same offense.” Brown v. Ohio, 432 U.S. 161, 166 n.6, 97 S. Ct. 221, 53 L. Ed. 2d 187 (1977).

       In its appellate brief and at oral argument before this court, the state averred that several “jurisdictions including Connecticut, have read Vitale as endorsing the Blockburger test as the only protection against successive prosecutions. See, e.g., State v. Truppi, 182 Conn. 449, 468, 438 A.2d 712 (1980); State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982) The state has misstated the law on this controlling question. No Connecticut case, including the ones cited by the state, hold that Blockburger applies without modification in successive prosecution cases. In fact, each case cited by the state, and all Connecticut appellate court cases that have cited Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), for the proposition that we do not examine the evidence at trial when applying the Blockburger test, involved single trial prosecutions. None of the cases revealed by our research on this issue involved successive prosecutions. All Connecticut cases cited by the state, therefore, are inapposite. There is no dispute that Vitale reaffirmed the application of the traditional Block-burger test in single prosecution cases.

       We note that the Second Circuit Court of Appeals in United States v. Clark, 613 F.2d 391, 400 (2d Cir. 1979), afforded no further protection against successive prosecutions than Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970). Clark, however, was decided prior to the Supreme Court’s decision in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980).

       Since United States v. Phillips, 664 F.2d 971 (5th Cir. 1981), the Fifth Circuit Court of Appeals has applied a modified Blockburger analysis to claims of double jeopardy in successive prosecution cases, although not advocating or adopting such an interpretation of Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). See, e.g., United States v. Barrington, 806 F.2d 529, 534 (5th Cir. 1986) (even when same evidence test applied, there was no double jeopardy violation); accord Henry v. McFaul, 791 F.2d 48, 51 (6th Cir. 1986) (no double jeopardy violation even when same evidence test applied); see also Roberts v. Thigpen, 693 F.2d 132 (N.D. Miss. 1982), discussed at footnote 12, infra; cf. United States v. Gibson, 820 F.2d 692, 698-99 (5th Cir. 1987) (although a mechanical application of the Blockburger rule dictated conclusion of distinct and separate offenses, application of the principle that “ ‘[l]enity is a tool of statutory construction’ ” yielded conclusion that the defendant could be convicted of only one of the two offenses charged); Davis v. Herring, 800 F.2d 513, 518 (5th Cir. 1986) (although not deciding whether Vitale mandates inquiry into actual evidence adduced at trial, court held that Blockburger test is not the only standard for determining whether successive prosecutions will be barred and that successive prosecutions will be barred where the second prosecution requires the relitigation of factual issues already resolved by the first prosecution); accord United States v. Patterson, 782 F.2d 68, 73-75 (7th Cir. 1986) (doctrine of collateral estoppel applied), citing Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970).

       In Thigpen v. Roberts, 468 U.S. 27, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984), the defendant was initially charged with reckless driving, driving while his license was revoked, driving on the wrong side of the road, and driving while intoxicated, all offenses arising from a fatal automobile accident. After the defendant was convicted of these four misdemeanors and while his appeal was pending, the defendant was indicted for manslaughter based on the same accident, and was convicted. The defendant brought a habeas corpus action in the federal District Court, which held that the manslaughter prosecution violated the double jeopardy clause and that substitution of a felony charge covering the same conduct for which the defendant had been convicted of the misdemeanors violated the due process clause of the fourteenth amendment.
      The Fifth Circuit Court of Appeals affirmed, relying solely on the double jeopardy argument. Roberts v. Thigpen, 693 F.2d 132 (5th Cir. 1982). The United States Supreme Court affirmed on the due process ground, without deciding the double jeopardy issue. In dissent, Justice Rehnquist stated: “I believe that the Court is obligated to confront the State’s contention that the Court of Appeals misapplied the Double Jeopardy Clause of the Fifth Amendment in this case. The Court being unwilling to undertake that obligation, I turn to it in dissent. . . .
      “In reaching this conclusion, I believe that the Court of Appeals mistakenly relied upon a mere form of expression in the Court’s opinion in Illinois v. Vitale, [447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980)], to depart from all of our previous double jeopardy holdings in this area. The Court of Appeals apparently felt that the Vitale opinion changed governing double jeopardy law to permit a defendant to establish a substantial, and apparently dispositive, claim of double jeopardy merely by showing that the State actually relied upon the same evidence to prove both crimes. While there is one sentence in the Court’s opinion in Vitale that supports this construction, I do not believe that construction is consistent with the opinion as a whole. Until the present case, the relevant question to be answered by any court is whether the evidence required to prove the statutoiy elements of crime is the same, not whether the evidence actually used at trial is the same.
      “In Vitale the Supreme Court of Illinois had held that the Double Jeopardy Clause of the Fifth Amendment barred the prosecution of a defendant for manslaughter because the defendant had previously pleaded guilty to a charge of failing to reduce speed arising out of the same incident. This Court vacated the judgment of the Supreme Court of Illinois, saying: ‘The point is that if manslaughter by automobile does not always entail proof of a failure to slow, then the two offenses are not the “same” under the Blockburger test. The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the traffic offense to establish an element of its manslaughter case would not be sufficient to bar the latter prosecution.’ ...
      “It seems to me that this is about as clear a statement as there can be of the principle that the double jeopardy inquiry turns on the statutory elements of the two offenses in question, and not on the actual evidence that may be used by the State to convict in a particular case. Nonetheless, the Court went on in Vitale to distinguish Harris v. Oklahoma, 433 U.S. 682 [97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977)], and in so doing stated: ‘By analogy, if in the pending manslaughter prosecution Illinois relies on and proves a failure to slow to avoid an accident as the reckless act necessary to prove manslaughter, Vitale would have a substantial claim of double jeopardy under the Fifth and Fourteenth Amendments of the United States Constitution.’ . . .
      “I cannot say that this last expression did not afford the Court of Appeals some ground for the views which it expressed, nor can I say that I think it is entirely consistent with the first quotation from the Vitale opinion. But I am reasonably sure that the Court did not intend to transmute the traditional double jeopardy analysis from an either ‘up or down’ inquiry based on the evidence required to prove the statutory elements of a crime into a ‘substantial claim’ inquiry based on the evidence that the State introduced at trial. I think that there are ambiguities in Illinois v. Vitale which urgently need resolution by this Court, that the present case affords an ample opportunity to do this, and that the Court’s failure to do it is an unexampled abdication of its responsibility.
      “I would unambiguously reaffirm the statement in Brown v. Ohio, 432 U.S. 161 [97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977)], relied upon in Illinois v. Vitale, supra, that ‘ “[t]he applicable rule is that 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 a fact which the other does not.” ’ 432 U.S., at 166, quoting Blockburger v. United States, 284 U.S. 299, 304 [52 S. Ct. 180, 76 L. Ed. 306 (1932)]. . . . The actual evidence test which the Court of Appeals inferred from the single sentence in Vitale has never been applied to bar a second trial on grounds of double jeopardy.” (Citations omitted.) Thigpen v. Roberts, supra, 34-39 (Rehnquist, J., dissenting).

       The state argued that even if the trial court interpreted Vitale as modifying the application of Blockburger in successive prosecution cases, because the defendant failed to object to the state’s request to sever the charges, the defendant waived his double jeopardy rights. This argument was not made in this court but requires little discussion. First, the state cites no authority for such a proposition. Second, the state did not make any attempt to show that the mere failure to object to a severance of the charges for trial constitutes an implied waiver of the personal right to be immune from double jeopardy. This case is not similar to a situation where a defendant has impliedly waived the guarantee against double jeopardy by proceeding to trial, verdict and judgment without raising a double jeopardy claim. See State v. Price, 208 Conn. 387, 390, 544 A.2d 184 (1988). Furthermore, this case does not present a situation where a defendant specifically requested the severance of charges. Accordingly, we conclude that the defendant in this case did not waive his constitutional right to be free from being placed in double jeopardy.