author: PALMER, J.

text:
    STATE OF CONNECTICUT v. KENYATTA WOODS
    (SC 16401)
    Sullivan, C. J., and Borden, Palmer, Vertefeuille and Zarella, Js.
    Argued May 31
    officially released August 28, 2001

      Eugene P. Falco, special public defender, for the appellant (defendant).

      Ronald G. Weller, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

PALMER, J.

A jury found the defendant, Kenyatta Woods, guilty of, inter alia, assault in the first degree as an accessory in violation of General Statutes §§ 53a-59 (a) (l) and 53a-8, carrying a pistol without a permit in violation of General Statutes (Rev. to 1995) § 29-35, and risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21 (1), as amended by Public Acts 1995, No. 95-142, § l. The defendant appealed from the judgment of convictionto the Appellate Court, claiming that the trial court improperly had declined to give a missing witness instruction regarding the state’s failure to call a particular witness, in accordance with Secondino v. New Haven Gas Co., 147 Conn. 672, 675, 165 A.2d 598 (1960).

The Appellate Court rejected the defendant’s claim, concluding that this court’s decision to abandon the Secondino rule in criminal cases in State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), applied retroactively and that, consequently, the defendant was not entitled to a missing witness instruction. State v. Woods, 58 Conn. App. 816, 818, 754 A.2d 856 (2000). The Appellate Court, therefore, affirmed the trial court’s judgment. Id. We granted the defendant’s petition for certification to appeal limited to the issue of whether the Appellate Court properly had concluded that our holding in Malave abandoning the Secondino rule should be applied retroactively. State v. Woods, 254 Conn. 925, 761 A.2d 758 (2000). This appeal followed.

We conclude that it is unnecessary to decide whether our holding in Malave has retrospective applicability because, even if we assume, arguendo, that it does not, the defendant nevertheless has failed to establish that he was entitled to a missing witness instruction under Secondino. We, therefore, agree with the Appellate Court that the judgment of the trial court must be affirmed.

The jury reasonably could have found the following facts. On November 23, 1995, at approximately 2 p.m., a group of young men from the Westville Manor housing complex (Westville Manor) in the city of New Haven walked to the nearby Rockview Circle housing complex (Rockview Circle). The group included Tavarie Atkinson, Vincent Clark, Isaac Long, Keith Miller, Keeshawn Moore and Lawrence Washington. When the group arrived at Rockview Circle, Clark purchased some marijuana.

Thereafter, the defendant approached the group and began arguing with Moore. Because there previously had been a conflict between the group from Westville Manor and a second group of men from Rockview Circle, the defendant asked Moore what he and his friends were doing at Rockview Circle. As the defendant was arguing with Moore, Long pulled Moore away. At this point, Atkinson observed the defendant remove something from his waistband. Clark observed that the object that the defendant had removed from his waistband was a handgun. Clark also observed the defendant load the handgun. The members of the Westville Manor group then began to flee. Clark, however, stumbled and fell as he was attempting to flee and, as he was getting up, witnessed the defendant hand the gun to a person identified as Vashawn Lewis. Clark then heard gunshots. While he was running away, Clark heard Atkinson yell that he had been shot. Atkinson eventually arrived home and, thereafter, was transported to the hospital, where he was treated for a gunshot wound to the leg.

At trial, the state’s two key witnesses were Atkinson and Clark, both of whom testified that they witnessed the defendant pull out a gun after his argument with Moore. The state, however, did not call Moore to testify as a witness at trial, and the defendant moved for a missing witness instruction with regard to Moore. The trial court denied the defendant’s motion, concluding that there was insufficient evidence regarding Moore’s availability to testify at trial and an insufficient showing that Moore was a witness whom the state naturally would have produced unless his testimony would have been adverse to the state.

On appeal to the Appellate Court, the defendant claimed that the trial court improperly had refused to give a Secondino charge. Specifically, the defendant claimed that he was entitled to such an instruction because he had established, first, that Moore was available to testify, and second, that Moore was a witness whom the state naturally would have called to testify. In rejecting the defendant’s claim, the Appellate Court did not address the issue of whether the defendant had satisfied his burden under Secondino, but, rather, concluded that our holding in State v. Malave, supra, 250 Conn. 738, in which we abandoned the Secondino rule, applied retroactively and, therefore, that the defendant was not entitled to a Secondino instruction “under any circumstances.” State v. Woods, supra, 58 Conn. App. 818.

On appeal to this court, the defendant contends that our holding in Malave should not be applied retroactively, that the trial court abused its discretion in declining to give a missing witness instruction and that the evidentiary impropriety was harmful. Even if we assume, without deciding, that our holding in Malave has prospective applicability only, we conclude that the defendant cannot prevail on his claim because he has failed to demonstrate that he was entitled to a missing witness instruction under the law in effect as of the date of his trial.

Prior to the issuance of our opinion in Malave, we had permitted missing witness instructions in certain circumstances. We recently summarized our preMalave missing witness jurisprudence as follows: “The failure to produce a witness for trial who is available and whom a party would naturally be expected to call warrants an adverse inference instruction against the party who would be expected to call that witness. . . . [T]he two requirements for a Secondino adverse inference instruction against a party are that the witness: (1) is available; and (2) could reasonably be expected, by his [or her] relationship to the party or the issues, to have peculiar or superior information material to the case that, if favorable, the party would produce. . . . The party seeking the adverse inference instruction bears the burden of proving both prongs of the test, and the trial court must make a preliminary determination that there is evidence in the record to support these elements. . . .

“Whether a party has established the requirements for a Secondino instruction is a factual determination that is committed to the sound discretion of the trial court. . . . We will not disturb that discretion unless the failure to give such an instruction amounts to a clear abuse of that discretion.” (Citations omitted; internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 813-14, 717 A.2d 1140 (1998).

We conclude that the trial court did not abuse its discretion in determining that the defendant had failed to meet his burden of proof with respect to either of the two Secondino requirements. With respect to the first such requirement, the only evidence that the defendant adduced regarding Moore’s availability was the testimony of Clark, who, in response to defense counsel’s question as to whether Moore still resided in New Haven, stated, “I guess so.” The trial court reasonably concluded that this equivocal statement reflected nothing more than Clark’s surmise as to where Moore might be at the time. Consequently, Clark’s testimony, standing alone, was insufficient reasonably to establish Moore’s whereabouts. Without more definite and reliable evidence regarding Moore’s availability, the trial court was within its discretion in concluding that the defendant had failed to satisfy the availability prong of the Secondino rule.

The defendant also failed to meet his burden of showing that Moore’s testimony would have been “peculiar or superior” to the testimony of Clark and Atkinson. Id., 814. The defendant adduced no evidence to suggest that Moore, who apparently was fleeing when Atkinson was shot, either saw the defendant in possession of a gun or observed the defendant hand a gun to Lewis. To the contrary, the evidence indicated that Moore had his back turned to the defendant while he was running away, when the defendant gave the gun to Lewis. In the absence of any showing that, under the circumstances, Moore’s testimony would have been particularly useful to the state, the defendant cannot satisfy the second prong of Secondino. We, therefore, conclude that the trial court did not abuse its discretion in declining to give a Secondino charge to the jury.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such iqjury to such person or to a third person by means of a deadly weapon or a dangerous instrument . . . .”

       General Statutes § 53a-8 provides: “(a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.
      “(b) A person who sells, delivers or provides any firearm, as defined in subdivision (19) of section 53a-3, to another person to engage in conduct which constitutes an offense knowing or under circumstances in which he should know that such other person intends to use such firearm in such conduct shall be criminally liable for such conduct and shall be prosecuted and punished as if he were the principal offender.”

       General Statutes (Rev. to 1995) § 29-35 provides: “(a) No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. The provisions of this subsection shall not apply to the carrying of any pistol or revolver by any sheriff, parole officer or peace officer of this state, or sheriff, parole officer or peace officer of any other state while engaged in the pursuit of his official duties, or federal marshal or federal law enforcement agent, or to any member of the armed forces of the United States, as defined by section 27-103, or of this state, as defined by section 27-2, when on duty or going to or from duty, or to any member of any military organization when on parade or when going to or from any place of assembly, or to the transportation of pistols or revolvers as merchandise, or to any person carrying any pistol or revolver while contained in the package in which it was originally wrapped at the time of sale and while carrying the same from the place of sale to the purchaser’s residence or place of business, or to any person removing his household goods or effects from one place to another, or to any person while carrying any such pistol or revolver from his place of residence or business to a place or person where or by whom such pistol or revolver is to be repaired or while returning to his place of residence or business after the same has been repaired, or to any person carrying a pistol or revolver in or through the state for the purpose of taking part in competitions or attending any meeting or exhibition of an organized collectors’ group if such person is a bona fide resident of the United States having a permit or license to cany any firearm issued by the authority of any other state or subdivision of tlie United States, or to any person carrying a pistol or revolver to and from a testing range at the request of the issuing authority, or to any person carrying an antique pistol or revolver, as defined in section 29-33.
      “(b) The holder of a permit issued pursuant, to section 29-28 shall carry such permit, on his person while carrying' such pistol or revolver.”

       General Statutes (Rev. to 1995) § 53-21, as amended by Public Acts 1995, No. 95-142, § 1, provides in relevant part: “Any person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.”

       The trial court sentenced the defendant to a total effective sentence of thirteen years imprisonment.

       The defendant’s claim regarding the failure of the trial court to give a missing witness instruction was the defendant’s sole claim on appeal to the Appellate Court. See State v. Woods, 58 Conn. App. 816, 818, 754 A.2d 856 (2000).

       “In Secondino v. New Haven Gas Co., supra, 147 Conn. 672, this court stated that [t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . Id., 675. This principle, previously articulated by this court in Ezzo v. Geremiah, 107 Conn. 670, 677, 142 A. 461 (1928), and subsequently approved for use in criminal cases; see State v. Daniels, 180 Conn. 101, 109, 429 A.2d 813 (1980); State v. Annunziato, 169 Conn. 517, 536-39, 363 A.2d 1011 (1975); commonly is referred to as the Secondino rule or the missing witness rule. Similarly, the jury charge explaining the rule commonly is referred to as the Secondino instruction or the missing witness instruction. We use these terms interchangeably throughout this opinion.” (Internal quotation marks omitted.) State v. Malave, 250 Conn. 722, 724 n.2, 737 A.2d 442 (1999), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000).

       We note that the state agrees with the defendant’s contention that our holding in State v. Malave, supra, 250 Conn. 738, has prospective applicability only. Indeed, both the state and the defendant asserted that position in the Appellate Court and in this court. In rejecting the view of the state and the defendant that our holding in Malave has prospective applicability only, the Appellate Court relied on an earlier case, State v. Quinones, 56 Conn. App. 529, 533, 745 A.2d 191 (2000), in which that court had addressed, and rejected, a claim that our holding in Malave should be applied prospectively only. State v. Woods, supra, 58 Conn. App. 818. We intimate no view regarding the propriety of that conclusion.

       The word “guess” is defined as follows: “to form a judgment or opinion of without knowledge or often without means of knowledge ... to form an opinion of from insufficient, uncertain, or ambiguous evidence or on grounds of probability alone ... to form an opinion of without evidence . . . [or] to make a random judgment or supposition concerning . . . .” Webster’s Third New International Dictionary.

       The defendant relies on State v. Daniels, 180 Conn. 101, 429 A.2d 813 (1980), to support his contention that Clark’s testimony was sufficient to establish Moore’s availability. In Daniels, the defendant, Clarence Daniels, presented an alibi defense in response to being charged with first degree sexual assault, and the state, during its closing argument, commented on Daniels’ failure to produce as a witness Barbara Upchurch, one of the individuals who Daniels, himself, had testified was a person who could have corroborated his alibi. Id., 107-108. On appeal to this court, Daniels claimed that the state’s comment was improper because the evidence was insufficient to show Upchurch’s availability to testify. See id., 110. We rejected Daniels’ claim in light of the following colloquy between the state’s attorney and Daniels during Daniels’ cross-examination: “Q. Who was there when you [returned home]? A. One Barbara Upchurch and her kids. Q. Is she here today in court,? A. No, she isn’t. Q. Do you know where she is? A. She’s home, I guess.” (Internal quotation marks omitted.) Id. The evidence further indicated that Upchurch was in Daniels’ bed when he returned home and that he slept in that bed as well. Id., 107, 108.
      We disagree with the defendant that our conclusion in Daniels mandates a like determination in the present case. In light of the context in which Daniels’ testimony was elicited, the trial court in Daniels reasonably could have concluded that Daniels, who apparently had had an intimate relationship with Upchurch, knew where Upchurch resided and, furthermore, that Daniels reasonably believed that she was at her residence when the state questioned him about her whereabouts. Indeed, the clear import of Daniels’ testimony is that he knew where Upchurch was and how to find her. That testimony was far more definite and credible than Moore’s wholly noncommittal response in the present case. Our conclusion in Daniels, therefore, is of no benefit to the defendant in the present case.


source: Caselaw Access Project

author: BORDEN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JARRELL CRAWFORD
    (SC 16407)
    Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.

      Argued May 29
    officially released August 28, 2001

      Richard W. Callahan, special public defender, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

BORDEN, J.

The dispositive issue of this appeal is whether the defendant, Jarrell Crawford, has presented a colorable claim of double jeopardy so as to permit him to pursue this interlocutory appeal from the trial court’s denial of his motion to dismiss the charge of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant claims that, because he already had entered a plea of guilty to, and had been found guilty of, the crime of assault in the first degree in connection with the beating that led to the death of the victim, Mathew Kosbob, the state is prohibited from seeking multiple punishments for the same offense under the double jeopardy clause. We dismiss the appeal because the claims presented by the defendant do not present colorable claims of double jeopardy that support this interlocutory appeal.

In 1997, the defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (4), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and conspiracy to commit assault in the first degree and kidnapping in the first degree in violation of General Statutes §§ 53a-48 (a), 53a-59 (a) and 53a-92 (a). The defendant pleaded guilty to the charged offenses. The sentencing court, Dean, J., sentenced the defendant to a total effective sentence on all convictions of twenty-five years imprisonment, execution suspended after eleven years, followed by five years probation.

Subsequently, following the death of the victim in November, 1998, the state filed this information charging the defendant with manslaughter in the first degree in violation of § 53a-55 (a) (1). The defendant moved to dismiss this second prosecution on the grounds that it violated the principles of double jeopardy and due process under the federal and state constitutions. The trial court, Nigro, J., denied the defendant’s motion to dismiss. This interlocutory appeal followed.

The following facts and procedural history, as set forth by the trial court, are relevant to this appeal. “[The defendant], together with [three] others, had been arrested on July 29, 1995, because of an assault on the victim .... The assault occurred in the evening hours of July 28, 1995. Among other injuries resulting from the assault, the victim sustained a severe craniocerebral trauma and, shortly after the assault, lapsed into a coma of several months duration. He slowly regained some consciousness in mid-December of 1995, but remained hospitalized in a ‘vegetative’ state. He was fed intravenously and breathed with the assistance of a respirator through a tracheal tube. He lingered as a patient in a rehabilitative hospital in this condition until his death on November 23, 1998. The autopsy Usted the cause of death as ‘delayed medical complications of craniocerebral trauma’ and the manner of death as [a] ‘homicide.’

“In March, 1997, while the victim was still hospitalized, the state filed [an] amended [information] against [the defendant] charging the crimes of (1) assault in the first degree while aided by two or more persons actually present and by means of a dangerous instrument; (2) kidnapping in the first degree; and (3) conspiracy to commit assault in the first degree and kidnapping in the first degree. . . .

“On May 15, 1997, the defendant . . . entered a plea of guilty to each of the three counts. On August 5, 1997, [the defendant] was sentenced on the kidnapping in the first degree count to incarceration for twenty-five years, execution suspended after eleven years, and probation on the unexecuted portion for five years. On the counts of assault in the first degree and conspiracy to commit assault in the first degree, the defendant was sentenced to eleven years on each count to run concurrently with the kidnapping count, to a total effective sentence of twenty-five years, suspended after eleven years, and probation [on] the unexecuted portion of the sentence for five years.” At both the May 15, 1997 and August 5, 1997 hearings, the state explicitly reserved its right to bring appropriate homicide charges in the event that the victim died.

The trial court also stated: “After the death of the victim . . . the state secured the issuance of [an] arrest [warrant] charging [the defendant] with the crime of manslaughter in the first degree. It is the information filed on the basis of [this warrant], alleging that with intent to cause serious physical injury to [the victim], he caused the death of [the victim], that [the defendant] seeks to have dismissed.” The trial court determined that the subsequent prosecution for manslaughter did not violate the defendant’s constitutional protection against double jeopardy or violate his due process rights.

The defendant claims that the state cannot now seek to impose additional punishment for the death of the victim because he already has been sentenced for his participation in the beating that led to the victim’s death. According to the defendant, the imposition of additional punishment in connection with that beating would violate the multiple punishments prong of the double jeopardy clause. We conclude that the defendant has misconstrued our double jeopardy jurisprudence, and in doing so, has failed to proffer a colorable double jeopardy claim that supports an interlocutory appeal. Thus, this court lacks subject matter jurisdiction to consider this interlocutory appeal under our final judgment jurisprudence. Accordingly, we dismiss the appeal.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). “Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include 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).” State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); see also State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995) (right to protection against double jeopardy is implicit in due process guarantees of state constitution).

It is axiomatic that appellate jurisdiction is limited to final judgments of the trial court. See, e.g., Waterbury Teachers Assn. v. Freedom of Information Commission, 230 Conn. 441, 447-48, 645 A.2d 978 (1994); see also General Statutes § 52-263. As we have stated, however, “[t]here is a small class of cases that meets the test of being effectively unreviewable on appeal from a final judgment and therefore, is subject to interlocutory review. The paradigmatic case in this group involves the right against double jeopardy. State v. Moeller, 178 Conn. 67, 420 A.2d 1153, cert. denied, 444 U.S. 950, 100 S. Ct. 423, 62 L. Ed. 2d 320 (1979). Because jeopardy attaches at the commencement of trial, to be vindicated at all, a colorable double jeopardy claim must be addressed by way of interlocutory review. The right not to be tried necessarily falls into the category of rights that can be enjoyed only if vindicated prior to trial, and, consequently, falls within the second prong of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983) (otherwise interlocutory order appealable in two circumstances: [1] where order or action terminates a separate and distinct proceeding, or [2] where order or action so concludes rights of the parties that further proceedings cannot affect them). See Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000) (because criminal defendant’s constitutional double jeopardy right includes right not even to be tried for same offense, denial of motion to dismiss criminal charges, filed on basis of colorable claim of double jeopardy, is immediately appealable final judgment under second prong of Curdo).

“We have entertained several interlocutory appeals from denials of motions to dismiss based on double jeopardy claims. See In re Juvenile Appeal (85-AB), 195 Conn. 303, 305-309, 488 A.2d 778 (1985); State v. Aillon, 189 Conn. 416, 425, 456 A.2d 279, cert. denied, 464 U.S. 837, 104 S. Ct. 124, 78 L. Ed. 2d 122 (1983); State v. Seravalli, 189 Conn. 201, 206 n.6, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983). That constitutional right not only protects against being twice punished but also is a guarantee against being twice put to trial for the same offense. Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). The only real question is whether the double jeopardy claim is colorable.” (Emphasis added; internal quotation marks omitted.) State v. Tate, 256 Conn. 262, 275-76, 773 A.2d 308 (2001). “For a claim to be colorable, the defendant need not convince the trial court that he necessarily will prevail; he must demonstrate simply that he might prevail.” (Emphasis in original.) Id., 276-77.

In the present appeal, the defendant’s claim that the state cannot now seek additional punishment by bringing manslaughter charges because to do so would violate the multiple punishments prong of the double jeopardy clause does not satisfy this minimal standard. As we have stated: “The constitutional guarantee against double jeopardy serves three separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense after conviction. [3] And it protects against multiple punishments for the same offense [in a single trial]. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969) [overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989)].” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 99, 675 A.2d 866 (1996). The first two prongs, or functions, may be regarded as constituting the “successive prosecution” part of the double jeopardy protection. The third prong, which is analytically different from the first two, involves multiple punishments for the same offense in a single prosecution.

The rationale for the rule permitting a criminal defendant to file an interlocutory appeal from the denial of a motion to dismiss on double jeopardy grounds is based on the first two prongs of the double jeopardy protection—protections against successive prosecution for the same offense, namely, (1) a subsequent prosecution after a prior acquittal, and (2) a subsequent prosecution after a prior conviction. The rationale is that those two prongs prevent a defendant even from having to go through a second trial. “[T]he [s]tate 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.” (Internal quotation marks omitted.) State v. Boyd, 221 Conn. 685, 698, 607 A.2d 376, cert. denied, 506 U.S. 923, 113 S. Ct. 344, 121 L. Ed. 2d 259 (1992). Thus, in order to give meaning to the successive prosecution part of the protection against double jeopardy, we permit a defendant to file an interlocutory appeal from the denial of a motion to dismiss so long as that motion presents a colorable double jeopardy claim.

Indeed, our cases involving such interlocutory appeals are all cases in which the defendant had made a colorable successive prosecution double jeopardy claim. On occasion, however, this court has entertained interlocutory appeals that have not fallen within the successive prosecution rubric. These cases have involved administrative proceedings followed by criminal charges, in which the defendants based their double jeopardy claims on a multiple punishments, rather than a successive prosecutions, argument. Although we may have analyzed these cases under the third, or multiple punishments, prong of our double jeopardy jurisprudence, what these defendants essentially sought was immunity even from being tried on the criminal charges, which is consistent with the rationale for permitting interlocutory appeals in the successive prosecution context. To the extent, however, that these cases suggest that a double jeopardy claim of multiple punishment, rather than successive prosecution, may be appealed interlocutorily, they are overruled because a multiple punishment claim is simply inconsistent with the rationale for such an interlocutory appeal.

In the present case, the defendant’s double jeopardy claim is not of the successive prosecution type. It is a claim based on the multiple punishments prong of our double jeopardy jurisprudence. The defendant does not claim that he may not be forced to undergo a trial for the current charges; he claims only that he may not be punished for those charges. Indeed, in his brief and at oral argument before this court, the defendant specifically conceded that he may be tried on the manslaughter charge. Thus, his claim simply does not fall within the rationale for permitting an interlocutory appeal, and he must await a final judgment of conviction.

The defendant also claims that his guilty plea and conviction on the charge of assault in the first degree, in which the sentencing court considered the likelihood that the victim would die because of the severity of the beating, collaterally estops the state from seeking additional punishment based on the fact that the victim subsequently died. This claim involves the collateral estoppel branch of double jeopardy jurisprudence; see Ashe v. Swenson, 397 U.S. 436, 445, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (fifth amendment guarantee against double jeopardy embodies collateral estoppel as constitutional requirement); which, unlike his other claims, does involve the successive prosecution aspect of double jeopardy. We conclude, nonetheless, that his claim does not present a colorable double jeopardy claim and, therefore, does not support this interlocutory appeal.

“Collateral estoppel is given constitutional dimensions by the double jeopardy clause. State v. Aparo, [223 Conn. 384, 388, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 (1993)]. In a criminal case, collateral estoppel is a protection included in the fifth amendment guarantee against double jeopardy. State v. Hope, 215 Conn. 570, 584, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968, 112 L. Ed. 2d 1054 (1991).” (Internal quotation marks omitted.) State v. James, 247 Conn. 662, 675, 725 A.2d 316 (1999). Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, supra, 397 U.S. 443. “To establish whether collateral estoppel applies, the court must determine what facts were necessarily determined in the first trial, and must then assess whether the government is attempting to relitigate those facts in the second proceeding. ... A defendant who seeks to protect himself from being retried pursuant to the principles of collateral estoppel carries the burden of establishing that the issue he seeks to foreclose from consideration in the second case was necessarily resolved in his favor in the prior proceeding.” (Citation omitted; emphasis added; internal quotation marks omitted.) State v. James, supra, 675.

The very foundation of a colorable double jeopardy collateral estoppel claim is that the defendant was tried and acquitted on the issue that he now seeks to prevent the state from relitigating. The defendant cannot meet this standard because there was no prior trial, only a guilty plea, and there was no acquittal, only a conviction. The defendant, therefore, has failed to proffer a colorable collateral estoppel claim under our double jeopardy jurisprudence.

The appeal is dismissed.

In this opinion the other justices concurred.

       The defendant appealed from the ruling of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 53a-55 provides: “(a) A person is guilty oí manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or oí a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person.
      “(b) Manslaughter in the first degree is a class B felony.”

       We note that the defendant’s due process claim, namely, that he entered into a plea bargain when he pleaded guilty to the charges of assault in the first degree, kidnapping in the first degree, conspiracy to commit assault in the first degree, and conspiracy to commit kidnapping in the first degree, in the expectation that he would not be prosecuted on any additional charges if the victim later died, is not before this court in this interlocutory appeal.

       General Statutes § 52-263 provides: “Upon the trial of all matters of fact in any cause or action in the Superior Court, whether to the court or jury, or before any judge thereof when the jurisdiction of any action or proceeding is vested in him, if either party is aggrieved by the decision of the court or judge upon any question or questions of law arising in the trial, including the denial of a motion to set aside a verdict, he may appeal to the court having jurisdiction from the final judgment of the court or of such judge, or from the decision of the court granting a motion to set aside a verdict, except in small claims cases, which shall not be appealable, and appeals as provided in sections 8-8 and 8-9.”

       See State v. Kruelski, 250 Conn. 1, 737 A.2d 377 (1999), cert. denied, 528 U.S. 1168, 120 S. Ct. 1190, 145 L. Ed. 2d 1095 (2000) (successive prosecution for violating Home Improvement Act after acquittal); State v. James, 247 Conn. 662, 725 A.2d 316 (1999) (successive prosecution on felony murder charges after convict ion on predicate robbery charge); State v. Ledbetter, 240 Conn. 317, 692 A.2d 713 (1997) (successive prosecution on part B information after defendant convicted on part A information and acquitted on part B information); State v. Boyd, supra, 221 Conn. 685 (successive prosecution on felony murder charges after conviction on predicate burglary offense); State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990) (successive prosecution on driving under influence charge after acquittal on manslaughter charge); State v. Evans, 205 Conn. 528, 534 A.2d 1159 (1987), cert. denied, 485 U.S. 988, 108 S. Ct. 1292, 99 L. Ed. 2d 502 (1988) (successive prosecution on sexual assault charges after trial court granted defendant’s motion to dismiss before presentation of evidence); State v. McKenna, 188 Conn. 671, 453 A.2d 435 (1982) (successive state prosecution after conviction on federal charges); State v. Moeller, supra, 178 Conn. 67 (successive state prosecution after acquittal on federal charges); State v. Flower, 176 Conn. 224, 405 A.2d 655 (1978) (successive prosecution after defendant found not guilty by reason of insanity); State v. Jones, 166 Conn. 620, 353 A.2d 764 (1974) (successive prosecution for selling heroine after conviction); see also Shay v. Rossi, supra, 253 Conn. 134 (denial of motion to dismiss on basis of colorable sovereign immunity claim is immediately appealable); State v. Colton, 234 Conn. 683, 663 A.2d 339 (1995), cert. denied, 516 U.S. 1140, 116 S. Ct. 972, 133 L. Ed. 2d 892 (1996) (successive prosecution on murder charges after prosecutorial misconduct); State v. Price, 208 Conn. 387, 544 A.2d 184 (1988) (successive prosecution after first jury discharged); State v. Curcio, supra, 191 Conn. 27 (successive grand jury investigation after first grand jury returned no true bill); State v. Roy, 182 Conn. 382, 438 A.2d 128 (1980) (successive prosecution after jury substitution before presentation of evidence).
      We also have entertained interlocutory appeals following a mistrial based on manifest necessity; see State v. Tate, supra, 256 Conn. 262 (motion to dismiss information after mistrial); State v. Kasprzyk, 255 Conn. 186, 763 A.2d 655 (2001) (same); State v. Buell, 221 Conn. 407, 605 A.2d 539, cert. denied, 506 U.S. 904, 113 S. Ct. 297, 121 L. Ed. 2d 221 (1992) (same); State v. Autorino, 207 Conn. 403, 541 A.2d 110, cert. denied, 488 U.S. 855, 109 S. Ct. 144, 102 L. Ed. 2d 116 (1988) (same); State v. Van Sant, 198 Conn. 369, 503 A.2d 557 (1986) (same); State v. Aillon, supra, 189 Conn. 416 (motion for acquittal after mistrial); State v. Seravalli, supra, 189 Conn. 201 (same); as well as appeals based on double jeopardy collateral estoppel. See State v. McDowell, 242 Conn. 648, 699 A.2d 987 (1997) (prosecution on criminal charges after probation revocation hearing); State v. Aparo, 223 Conn. 384, 614 A.2d 401 (1992), cert. denied, 507 U.S. 972, 113 S. Ct. 1414, 122 L. Ed. 2d 785 (1993) (prosecution on conspiracy to commit murder charge after acquittal on murder as accessory charge and mistrial on conspiracy to commit murder charge); State v. Hope, 215 Conn. 570, 577 A.2d 1000 (1990), cert. denied, 498 U.S. 1089, 111 S. Ct. 968,112 L. Ed. 2d 1054 (1991) (prosecution on aiding and abetting murder charge after acquittal on conspiracy to commit felony murder and murder charges). These two groups of cases are merely a variant of our successive prosecution jurisprudence, because by entertaming interlocutory appeals based on these claims, the court can, if the defendant’s double jeopardy claim has merit, prevent a defendant even from having to go through a second trial.

        See State v. Tuehman, 242 Conn. 345, 699 A.2d 952 (1997), cert. dismissed, 522 U.S. 1101, 118 S. Ct. 907, 139 L. Ed. 2d 922 (1998) (prosecution on larceny charge after sanctions imposed in administrative proceeding before department of social services); State v. Santiago, 240 Conn. 97, 689 A.2d 1108 (1997) (prosecution on weapons charge after administrative discipline by prison officials); State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996) (prosecution for driving while under influence after suspension of driver’s license in administrative proceeding); State v. Fritz, 204 Conn. 156, 527 A.2d 1157 (1987) (prosecution for illegally prescribing narcotic substance after administrative proceeding before department of consumer protection).

       Indeed, the multiple punishments prong of the double jeopardy protection is inconsistent with the rationale for permitting an interlocutory appeal from the denial of a motion to dismiss on successive prosecution grounds because the multiple punishments prong is applicable only in the context of a single trial. See Jones v. Thomas, 491 U.S. 376, 381, 109 S. Ct. 2522, 105 L. Ed. 2d 322 (1989) (“respondent’s initial conviction and sentence for both felony murder and the underlying felony violated the third aspect of the [d]ouble [jeopardy [cjlause, the protection against multiple punishments for the same offense imposed in a single proceeding” [internal quotation marks omitted]); State v. Greco, 216 Conn. 282, 290, 579 A.2d 84 (1990) (double jeopardy clause “prohibits not only multiple trials for the same offense, but also multiple punishments for the same offense in a single trial”).


author: VERTEFEUILLE, J.

text:
    STATE OF CONNECTICUT v. WASHINGTON ALVAREZ
    (SC 16406)
    Borden, Norcott, Palmer, Vertefeuille and Zarella, Js.
    Argued May 29
    officially released August 28, 2001

      Robert S. Bello, with whom, on the brief, were Thomas M. Cassone and Lawrence M. Lapine, for the appellant (defendant).

      Lisa A. Riggione, senior assistant state’s attorney, with whom, on the brief, were Eugene J. Callahan, state’s attorney, and James Bemardi, senior assistant state’s attorney, for the appellee (state).
   Opinion

VERTEFEUILLE, J.

The dispositive issue in this interlocutory appeal is whether the defendant’s prosecution for manslaughter in the first degree is barred by the federal constitutional prohibition against double jeopardy where he pleaded guilty to assault in the first degree and was convicted and sentenced on that charge, only later to be charged with manslaughter in the first degree after the victim of the assault died following the defendant’s conviction. The defendant appeals from the decision of the trial court denying his motion to dismiss the charge of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). We affirm the decision of the trial court.

The defendant, Washington Alvarez, claims that, because he already had entered a plea of guilty to, and had been found guilty of, inter alia, the crime of assault in the first degree in connection with the beating of the victim, Mathew Kosbob, the trial court improperly denied his motion to dismiss the subsequent charge of manslaughter in the first degree. The manslaughter information was filed by the state following the victim’s death, from the consequences of the assault, approximately eighteen months after the defendant’s assault conviction. Specifically, the defendant contends that this prosecution for manslaughter in the first degree violates the prohibition against double jeopardy because it: (1) subjects him to successive prosecutions for the same offense; and (2) subjects him to multiple punishments for the same offense. In addition, the defendant also claims that the prosecution for manslaughter violates his right to due process in that he has a right to the sentence to which he agreed when he pleaded guilty to the initial charges of assault in the first degree, kidnapping and conspiracy because he did so with the expectation that he would not be prosecuted on any additional charges if the victim later died. For the reasons that follow, we disagree with the defendant’s claims.

In 1997, the defendant was charged with assault in the first degree in violation of General Statutes § 53a-59 (a) (1) and (4), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and conspiracy to commit assault in the first degree and kidnapping in the first degree in violation of General Statutes §§ 53a-48 (a), 53a-92 (a) (2) (A) and 53a-59 (a) (1). These charges arose out of an incident involving the victim that had occurred in July, 1995. The defendant pleaded guilty to the charged offenses, and he was sentenced to a total effective sentence on all convictions of twenty-five years, suspended after fifteen years, followed by five years probation.

After the defendant’s conviction on those charges, the victim died in November, 1998, from the consequences of the 1995 assault. The state then filed the information that is the subject of the motion to dismiss in the present case, charging the defendant with manslaughter in the first degree in violation of § 53a-55 (a) (1). The defendant moved to dismiss this second prosecution on the grounds that it violated principles of double jeopardy and due process under the federal and state constitutions. The trial court denied the defendant’s motion to dismiss, and this interlocutory appeal followed.

The following facts and procedural history, as set forth by the trial court in its memorandum of decision denying the motion to dismiss, are relevant to this appeal. “[The defendant], together with [three] others, had been arrested on July 29,1995, because of an assault on the victim .... The assault occurred in the evening hours of July 28, 1995. Among other injuries resulting from the assault, the victim sustained a severe craniocerebral trauma and, shortly after the assault, lapsed into a coma of several months duration. He slowly regained some consciousness in mid-December of 1995, but remained hospitalized in a ‘vegetative’ state. He was fed intravenously and breathed with the assistance of a respirator through a tracheal tube. He lingered as a patient in a rehabilitative hospital in this condition until his death on November 23,1998. The autopsy listed the cause of death as ‘delayed medical complications of craniocerebral trauma’ and the manner of death as [a] ‘homicide.’

“In March, 1997, while the victim was still hospitalized, the state filed [an] amended [information] against [the defendant] charging the crimes of (1) assault in the first degree while aided by two or more persons actually present and by means of a dangerous instrument; (2) kidnapping in the first degree; and (3) conspiracy to commit assault in the first degree and kidnapping in the first degree.

“On March 21, 1997, [the defendant] entered a plea of guilty to each of the three counts. On June 26, 1997, [the defendant] was sentenced on the kidnapping in the first degree count to incarceration for twenty-five years, execution suspended after fifteen years, and probation on the unexecuted portion for five years. On the counts of assault in the first degree and conspiracy to commit assault in the first degree, the defendant was sentenced to fifteen years on each count to run concurrently with the kidnapping count, [for] a total effective sentence of twenty-five years, suspended after fifteen years, and probation on the unexecuted portion of the sentence for five years.”

The trial court also stated: “After the death of the victim . . . the state secured the issuance of [an] arrest [warrant] charging [the defendant] with the crime of manslaughter in the first degree. It is the information filed on the basis of [this warrant], alleging that with intent to cause serious physical injury to [the victim], he caused the death of [the victim], that [the defendant] seeks to have dismissed.” The trial court determined that the subsequent prosecution for manslaughter did not violate the defendant’s constitutional protection against double jeopardy or violate his due process rights.

I

The defendant first claims that his prosecution for manslaughter in the first degree violates the prohibition against double jeopardy because it subjects him both to a successive prosecution and a multiple punishment for the same offense. We disagree with his successive prosecution claim and do not decide his multiple punishment claim.

“The double jeopardy clause of the fifth amendment to the United States constitution provides: ‘[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .’ The double jeopardy clause is applicable to the states through the due process clause of the fourteenth amendment. See Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). ‘Although the Connecticut constitution has no specific double jeopardy provision, we have held that the due process guarantees of article first, § 9, include 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).’ State v. Chicano, 216 Conn. 699, 706, 584 A.2d 425 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991); see also State v. Nixon, 231 Conn. 545, 550, 651 A.2d 1264 (1995) (right to protection against double jeopardy is implicit in due process guarantees of state constitution).” State v. Crawford, 257 Conn. 769, 774, 778 A.2d 947 (2001).

“We have recognized that the Double Jeopardy Clause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 [89 S. Ct. 2072, 23 L. Ed. 2d 656] (1969) .... These protections stem from the underlying premise that a defendant should not be twice tried or punished for the same offense. United States v. Wilson, 420 U.S. 332, 339 [95 S. Ct. 1013, 43 L. Ed. 2d 232] (1975). The Clause operates as a bar against repeated attempts to convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity, and the possibility that he may be found guilty even though innocent. United States v. DiFrancesco, 449 U.S. 117, 136 [101 S. Ct. 426, 66 L. Ed. 2d 328] (1980).” (Internal quotation marks omitted.) Schiro v. Farley, 510 U.S. 222, 229-30, 114 S. Ct. 783, 127 L. Ed. 2d 47 (1994). In the present case, the defendant makes both a successive prosecution and a multiple punishment claim.

A

We first turn to the defendant’s claim that the state’s prosecution of the manslaughter charge violates the prohibition against double jeopardy because it subjects him to a successive prosecution for the same offense. Specifically, the defendant contends that: (1) manslaughter in the first degree constitutes the same offense as assault in the first degree for double jeopardy purposes; and (2) in the alternative, the prosecution for manslaughter in the first degree should be prohibited under the principles enunciated in State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990), because the same evidence that was offered to prove assault in the first degree in the defendant’s initial prosecution will be the sole evidence offered to prove manslaughter in the first degree in the second prosecution.

“The traditional approach to analyzing whether two offenses constitute the same offense [for double jeopardy purposes] was set forth in Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). [W]here the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. . . . State v. Greco, [216 Conn. 282, 291, 579 A.2d 84 (1990)].” (Internal quotation marks omitted.) State v. Hill, 237 Conn. 81, 100, 675 A.2d 866 (1996). “The issue, though essentially constitutional, becomes one of statutory construction. State v. Rawls, 198 Conn. 111, 120, 502 A.2d 374 (1985); State v. Madera, 198 Conn. 92, 109, 503 A.2d 136 (1985).” (Internal quotation marks omitted.) State v. Woodson, 227 Conn. 1, 8-9, 629 A.2d 386 (1993).

Application of the Blockburger test to the facts of this case leads us to conclude that manslaughter in the first degree is not the same offense as assault in the first degree for double jeopardy purposes. In the information filed after the victim’s death, the state charged the defendant with manslaughter in the first degree under § 53a-55 (a) (l). Section 53a-55 (a) (1) requires the state to prove that, with intent to cause serious physical injury, the defendant caused the death of the victim. In the amended information in which the defendant was initially charged with assault in the first degree in violation of § 53a-59 (a) (1) and (4), the state had alleged that the defendant “with intent to cause serious physical injury to [the victim] while aided by two or more persons actually present did cause serious physical injury [to the victim] ... by means of a dangerous instrument . . . .” Manslaughter in the first degree requires proof that the defendant caused the death of the victim, and assault in the first degree, as previously charged against the defendant in the present case, requires proof that the defendant caused serious physical injury while aided by two or more persons and by means of a dangerous instrument. As charged in the present case, manslaughter in the first degree and assault in the first degree each require proof of an element that the other does not. We conclude, therefore, that manslaughter in the first degree and assault in the first degree are distinct offenses for purposes of double jeopardy under Blockburger.

The defendant further claims that regardless of whether manslaughter in the first degree and assault in the first degree are the same offense under the Blockburger test, his prosecution for the charge of manslaughter in the first degree violates the prohibition against double jeopardy under the principles enunciated in State v. Lonergan, supra, 213 Conn. 74. We disagree.

In Lonergan, we adopted the reasoning of the Appellate Court and concluded 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.” (Internal quotation marks omitted.) Id., 92. In support of our conclusion, we recognized that “[sjuccessive-prosecution cases involve the core values of the Double Jeopardy Clause .... Where successive prosecutions are involved, the Double Jeopardy Clause protects the individual’s interest in not having to twice run the gauntlet. . . . Thus, [g]iven the multiplicity of offenses that may arise from a single criminal transaction, the formalistic Blockburger test, with its narrow focus on the technical elements of the offenses charged, is inadequate to vindicate this constitutional guarantee against retrial. The general test for determining whether successive prosecutions involve the same offense is therefore a more flexible and pragmatic one, which focuses not on the formal elements of the two offenses but rather on the proof actually utilized to establish them.” (Citation omitted; internal quotation marks omitted.) Id., 91.

Our conclusion in Lonergan was based on our analysis of a series of United States Supreme Court cases that culminated in Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980). We recognized that, in Illinois v. Vitale, supra, 419-20, the Supreme Court “indicated that there are two ways of detecting double jeopardy violations in successive prosecution cases. First, the Blockburger test may categorize the two offenses as being the same. Second, an examination of the evidence may be undertaken to determine if the second offense requires proof that was already offered to prove the first offense.” State v. Lonergan, supra, 213 Conn. 84.

Ten years after the Supreme Court’s decision in Vitale and one year after our decision in Lonergan, the United States Supreme Court again addressed the appropriate test for double jeopardy in successive prosecution cases in Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548 (1990). The court in Grady stated that “[i]n Illinois v. Vitale, [supra, 447 U.S. 419-20], we suggested that even if two successive prosecutions were not barred by the Blockburger test, the second prosecution would be barred if the prosecution sought to establish an essential element of the second crime by proving the conduct for which the defendant was convicted in the first prosecution. Today we adopt the suggestion set forth in Vitale. We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Grady v. Corbin, supra, 510. In addition to Vitale, the court in Grady also relied on Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), and In re Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L. Ed. 118 (1889). See Grady v. Corbin, supra, 519-20.

In 1993, however, only three years after Grady was decided, and four years after our decision in Lonergan, the United States Supreme Court overruled Grady. See United States v. Dixon, 509 U.S. 688, 704, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). In Dixon, the Supreme Court reinstated the Blockburger test as the exclusive means of determining whether two charges are the same for double jeopardy purposes. See id., 704-12. The court in Dixon “concluded . . . that Grady must be overruled. Unlike Blockburger analysis, whose definition of what prevents two crimes from being the ‘same offence,’ U.S. Const., [amend. V], has deep historical roots and has been accepted in numerous precedents of this Court, Grady lacks constitutional roots. The ‘same-conduct’ rule [the court in Grady] announced is wholly inconsistent with earlier Supreme Court precedent and with the clear common law understanding of double jeopardy.” United States v. Dixon, supra, 704.

“Having encountered today yet another situation in which the pre-Grady understanding of the Double Jeopardy Clause allows a second trial, though the same-conduct test would not, we think it time to acknowledge what is now, three years after Grady, compellingly clear: [That decision] was a mistake. We do not lightly reconsider a precedent, but, because Grady contradicted an unbroken line of decisions, contained less than accurate historical analysis, and has produced confusion, we do so here. Solorio v. United States, 483 U.S. 435, 439, 442, 450 [107 S. Ct. 2924, 97 L. Ed. 2d 364] (1987). Although stare decisis is the preferred course in constitutional adjudication, when governing decisions are unworkable or are badly reasoned, this Court has never felt constrained to follow precedent. Payne v. Tennessee, 501 U.S. 808, 827 [111 S. Ct. 2597, 115 L. Ed. 2d 720] (1991) (quoting Smith v. Allwright, 321 U.S. 649, 665 [64 S. Ct. 757, 88 L. Ed. 987 (1943), reh. denied, 322 U.S. 769, 64 S. Ct. 1052, 88 L. Ed. 1594 (1944)], and collecting examples). We would mock stare decisis and only add chaos to our double jeopardy jurisprudence by pretending that Grady survives when it does not. We therefore accept the Government’s invitation to overrule Grady . . . .” (Internal quotation marks omitted.) United States v. Dixon, supra, 509 U.S. 711-12.

Until the present case, we have not had occasion to revisit our decision in State v. Lonergan, supra, 213 Conn. 74, since the United States Supreme Court decided Dixon. Although we recognize that “ ‘[t]he doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it’ Rivera v. Commissioner of Correction, 254 Conn. 214, 251, 756 A.2d 1264 (2000); we conclude that, in light of Dixon, we must overrule Lonergan. An examination of Lonergan demonstrates that our decision therein was controlled by the same federal double jeopardy precedent that the United States Supreme Court examined in Dixon and found inconsistent with Grady.

In adopting the reasoning of the Appellate Court in Lonergan, we concluded that the Appellate Court had engaged in an accurate analysis of federal double jeopardy precedent, including Illinois v. Vitale, supra, 447 U.S. 410; Brown v. Ohio, supra, 432 U.S. 161; Harris v. Oklahoma, supra, 433 U.S. 682; Ashe v. Swenson, supra, 397 U.S. 436; and In re Nielsen, supra, 131 U.S. 176. See State v. Lonergan, supra, 213 Conn. 79-85. The court in Dixon examined this same body of federal double jeopardy precedent and concluded that the Blockburger test is the exclusive means of determining whether two charges constitute the same offense for federal double jeopardy purposes. The court in Dixon further determined that the test established in Grady, which is the same as that which we adopted in Lonergan, was “wholly inconsistent with earlier Supreme Court precedent and with the clear common law understanding of double jeopardy.” United States v. Dixon, supra, 509 U.S. 704. Because this is an issue of federal constitutional law, we are bound by Dixon. We conclude, therefore, consistent with Dixon, that the Blockburger test is the exclusive means for determining whether two charges constitute the same offense for double jeopardy purposes.

At oral argument before this court, the defendant claimed that Dixon does not require this court to overrule Lonergan. The defendant argued that Dixon only overruled Grady, and that Lonergan was not based on Grady but on earlier federal double j eopardy precedent. We disagree with the defendant’s reasoning. Although Lonergan was not based on Grady because Grady was decided one year after Lonergan, both cases were based on the same body of federal double jeopardy precedent. In overruling Grady, the Supreme Court in Dixon clearly stated that this body of precedent does not support the same evidence test and that the Blockburger test is the exclusive test for determining whether two charges are the same offense for federal double jeopardy purposes. See United States v. Dixon, supra, 509 U.S. 704-12. We conclude, therefore, that Dixon mandates that we overrule Lonergan and reinstate the Blockburger test as the exclusive test for determining whether two offenses are the same offense for double jeopardy purposes.

In the present case, we have determined that manslaughter in the first degree is separate and distinct from assault in the first degree under the Blockburger analysis. We conclude, therefore, that the state’s prosecution of the defendant for manslaughter in the first degree does not violate the federal constitutional prohibition against double jeopardy.

B

The defendant in this interlocutory appeal further claims that his prosecution for manslaughter in the first degree violates the prohibition against double jeopardy because it constitutes multiple punishments for the same offense. We fully addressed and rejected this identical claim in a companion case also decided today. See State v. Crawford, supra, 257 Conn. 769. We held in Crawford that a multiple punishment claim, like the one raised in the present case, may not be appealed interlocutorily. Id., 780. That is what the defendant attempts to do here. Our decision in Crawford is dispositive of this claim.

II

The defendant also claims in this interlocutory appeal that the prosecution for manslaughter in the first degree violates his rights to due process. We decline to address this due process claim in this interlocutory appeal.

“We have been disinclined ... to extend the privilege of an interlocutory appeal in criminal cases beyond the double jeopardy circumstance. This reluctance stems principally from our concern that to allow such appeals would greatly delay the orderly progress of criminal prosecutions in the trial court, as vividly illustrated in the present instance where more than two years have elapsed while this appeal has been pending. [T]he opportunity to appeal in such a situation might well serve the purpose of parties who desire for their own ends to postpone the final determination of the issues. State v. Kemp, 124 Conn. 639, 647, 1 A.2d 761 (1938). It has been widely recognized that strict adherence to the final judgment rule is necessary in criminal cases because the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law. DiBella v. United States, 369 U.S. 121, 126, 82 S. Ct. 654, 7 L. Ed. 2d 614 (1962); see Abney v. United States, [431 U.S. 651, 657, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1997)]; State v. Seravalli, [189 Conn. 201, 204, 455 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983)]; State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982).” (Internal quotation marks omitted.) In re Juvenile Appeal (85-AB), 195 Conn. 303, 309, 488 A.2d 778 (1985). The defendant’s due process claim is distinct from his double jeopardy claim and is not raised appropriately at this time because of the absence of a final judgment. We decline, therefore, to review the defendant’s due process claim in this interlocutory appeal.

The decision of the trial court is affirmed.

In this opinion the other justices concurred.

       The defendant appealed from the ruling of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c).

       General Statutes § 53a-55 (a) provides in relevant part: “A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person . . .

       General Statutes § 53a-59 (a) provides: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument; or (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical iryury to another person; or (4) with intent to cause serious physical ii\jury to another person and while aided by two or more other persons actually present, he causes such injury to such person or to a third person; or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

       General Statutes § 53a-92 (a) provides: “A person is guilty of kidnapping in the first degree when he abducts another person and: (1) His intent is to compel a third person (A) to pay or deliver money or property as ransom or (B) to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Because the defendant has not presented a separate analysis of his double jeopardy claim under the state constitution, we confine our analysis to the application of the federal constitution’s double jeopardy bar. See, e.g., State v. Colton, 234 Conn. 683, 703, 663 A.2d 339 (1995); State v. Nixon, 231 Conn. 545, 550 n.4, 651 A.2d 1264 (1995); State v. DePastino, 228 Conn. 552, 571, 638 A.2d 578 (1994).

       “In criminal cases, as an exception to the general rule, colorable claims of double jeopardy may be appealed before a final judgment has been rendered by the trial court.” State v. James, 247 Conn. 662, 670 n.10, 725 A.2d 316 (1999), citing State v. Seravalli, 189 Conn. 201, 204-205, 445 A.2d 852, cert. dismissed, 461 U.S. 920, 103 S. Ct. 2076, 77 L. Ed. 2d 291 (1983).

       Tho defendant further claims that his prosecution for manslaughter in the first degree is barred by double jeopardy because that charge constitutes the same offense as assault in the first degree for double jeopardy purposes since both crimes are classified as class B felonies. The defendant cites no relevant case law in support of his position.

       At the time of this interlocutory appeal, the state had filed only a short form information for the charge of manslaughter in the first degree.

       The defendant does not specify whether this claim is raised under the federal or the state constitution. We treat the defendant’s claim, therefore, as limited to the federal constitution.