text:
    Joan A. Kinney v. State of Connecticut
    (13687)
    Peters, C. J., Shea, Callahan, Glass, Covello, Hull and Santaniello, Js.
    Argued October 3
    decision released November 28, 1989

      Brewster Blackall, assistant attorney general, with whom, on the brief, were ClarineNardi Riddle, attorney general, and Carl J. Sckuman, former assistant attorney general, for the appellant (state).

      Roger J. Frechette, with whom was Matthew E. Frechette, for the appellee (plaintiff).
   Peters, C. J.

The dispositive issue in this appeal is whether the legislature intended judges of the Superior Court to come within the jurisdictional confines of the Workers’ Compensation Act, General Statutes § 31-275 et seq. Following the death of her husband, the Honorable Frank J. Kinney, Jr., the plaintiff, Joan A. Kinney, filed a workers’ compensation claim against the state alleging that the decedent’s fatal heart condition was causally related to work-induced stress. Ruling that the decedent was an “employee” for the purposes of workers’ compensation as defined by General Statutes § 31-275 (5) and that his death arose out of and in the course of his employment, the commissioner for the third district awarded the plaintiff the maximum allowable spousal survivorship benefits under General Statutes § 31-306 (b). In response to the defendant’s appeal, pursuant to General Statutes § 31-301, the compensation review division, on its own motion, invoked the procedure authorized by General Statutes § 31-324, to reserve to the Appellate Court the threshold jurisdictional issue of whether a Superior Court judge is an employee as defined by § 31-275 (5). We transferred this reservation to ourselves pursuant to Practice Book § 4023. We answer no.

The plaintiff sought workers’ compensation benefits on the theory that the chronic stress connected with her husband’s employment with the defendant contributed to his death. After the defendant contested her claim pursuant to General Statutes § 31-297 (b), the commissioner conducted a formal hearing as provided in General Statutes § 31-298.* ** As a result of that hearing, the commissioner made the following findings of fact, which are not contested in this appeal. The decedent was first appointed to the state bench in 1972. At the time of his death, he had undertaken various administrative assignments in addition to his judicial responsibilities for the adjudication of criminal cases. The decedent was serving as the presiding criminal and administrative judge for the judicial district of New Haven, the chief administrative judge of the criminal division for the entire state and also as the chairman of the Commission to Study Alternate Sentences. The defendant at all times controlled, supervised and regulated the decedent's administrative duties. The decedent, by accepting and performing judicial and administrative duties in return for fair compensation, had entered into an employment relationship with the defendant. The unusual work pressures associated with the decedent’s excessive administrative workload resulted in chronic stress that contributed to the development of coronary artery disease and exacerbated his preexisting myocardial atherosclerosis. The myocardial infarction that resulted in his death was precipitated in part by the chronic stress associated with his prodigious judicial duties.

On the basis of these findings of fact, the commissioner concluded that the decedent’s employment relationship with the defendant constituted a contract of employment for the purposes of the Workers’ Compensation Act; General Statutes § 31-275 (5); and that the decedent’s death arose out of and in the course of his employment. Accordingly, the commissioner awarded the plaintiff the maximum allowable spousal survivor-ship benefits under § 31-306 (b) (2).

In its appeal to the compensation review division, the defendant challenged the validity of the commissioner’s determination that the instant case falls within the jurisdiction of the Workers’ Compensation Act. The defendant maintained then, as it does now, that a judge of the Superior Court is not an employee for the purposes of workers’ compensation, and does not have an employer-employee relationship with the defendant. The review division decided to seek guidance on these questions of law, and propounded the reservation that is presently before us.

We must decide in this case whether the legislature intended the Workers’ Compensation Act to confer jurisdiction upon the commissioner to award benefits to the plaintiff. Even though the plaintiff has presented a factual record that warrants sympathetic consideration of her claims, her entitlement to relief cannot transcend the jurisdictional limits of the statute under which she seeks recovery. Once an issue of subject matter jurisdiction is raised, the court must dispose of this legal question as a threshold matter. Concerned Citizens of Sterling v. Sterling, 204 Conn. 551, 556-57, 529 A.2d 666 (1987); Cahill v. Board of Education, 198 Conn. 229, 238, 502 A.2d 410 (1985). “ ‘ “[Wjhenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to previous rulings.” ’ Chzrislonk v. New York, N.H. & H. R. Co., 101 Conn. 356, 358, 125 A. 874 (1924).” Cahill v. Board of Education, supra; Pet v. Department of Health Services, 207 Conn. 346, 351, 542 A.2d 672 (1988). The applicability of these principles is no less compelling in the instant case where the limited and statutory jurisdiction at issue is the legislative will as expressed in the Workers’ Compensation Act. Although the Workers’ Compensation Act “should be broadly construed to accomplish its humanitarian purpose”; Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979); Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 541, 494 A.2d 555 (1985); its remedial purpose cannot transcend its statutorily defined jurisdictional boundaries. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988); Perille v. Raybestos-Manhattan-Europe, Inc., supra, 541-42; Jester v. Thompson, 99 Conn. 236, 238, 121 A. 470 (1923). “The act is not triggered by a claimant until he brings himself within its statutory ambit.” Castro v. Viera, supra, 433.

The plaintiff would have us resolve the jurisdictional issue in this case by deferring to the commissioner’s findings of fact. This we cannot do. We recognize that the commissioner found that the decedent’s judicial duties amounted to a contractual relationship with the defendant such that he was an “employee” for purposes of workers’ compensation as defined by § 31-275 (5). While it is correct that “[bjecause only employees are entitled to compensation under the act . . . coverage must arise from a contract of employment, either express or implied”; Blancato v. Feldspar Corporation, 203 Conn. 34, 38, 522 A.2d 1235 (1987); Sibley v. State, 89 Conn. 682, 686-87, 96 A. 161 (1915); our jurisdictional inquiry is not limited to the commissioner’s factual finding of the decedent’s contract of employment with the defendant. The elements of subject matter jurisdiction are “dependent upon both law and fact.” (Emphasis added.) Castro v. Viera, supra, 433. Although the plaintiff correctly asserts that the power and duty of determining facts rests on the commissioner as the trier of facts; Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); the conclusions drawn by the commissioner cannot stand when they result from an incorrect application of the law. Id.; Adzima v. UAC/NordenDivision, supra, 118.

The commissioner exercises jurisdiction only “ ‘under the precise circumstances and in the manner particularly prescribed by the enabling legislation.’ Heiser v. Morgan Guaranty Trust Co., 150 Conn. 563, 565, 192 A.2d 44 (1963).” Castro v. Viera, supra, 427-28. The parties cannot confer jurisdiction upon the commissioner by agreement, waiver or conduct. Id., 430; Jester v. Thompson, supra, 238. The plaintiff may invoke the remedy provided under the Workers’ Compensation Act only if her decedent, as a matter of law, satisfies the requisite jurisdictional standard of “employee” as defined by the legislature in § 31-275 (5).* The legal question before us, therefore, is whether the legislature intended to include judges of the Superior Court within § 31-275 (5).

We begin our examination of the scope of § 31-275 (5) by recourse to the accepted rules of statutory construction. We look first to the text of § 31-275 (5) itself. Because § 31-275 (5) consists of a functional definition with expressly delineated exceptions, for purposes of clarity, we will focus first on the operative meaning before integrating the exceptions into our analysis. Section 31-275 (5) defines “employee” in relevant part as “any person who has entered into or works under any contract of service or apprenticeship with an employer . . . . ” This language, on its face, expresses no clear legislative intent as to whether a member of the judi-iary is a covered “employee.” In ascertaining legislative intent, however, the legislature is presumed to know the history of a statute as judicially construed. Nichols v. Warren, 209 Conn. 191, 202 n.8, 550 A.2d 309 (1988); Peck v. Jacquemin, 196 Conn. 53, 71, 491 A.2d 1043 (1985). Our decisions concerning the eligibility of individuals working in the public sector for workers’ compensation benefits have long distinguished between public officers and public employees, and have held that public officers not expressly included within the definition provided by § 31-275 (5) are not “employees” for the purposes of the act. McDonald v. New Haven, 94 Conn. 403, 417-18, 109 A. 176 (1920); Sibley v. State, supra, 685.

It is undisputed that judges of the Superior Court meet the three part test that determines the existence of a public office: “ ‘(1) an authority conferred by law, (2) a fixed tenure of office, and (3) the power to exercise some portion of the sovereign functions of government. Kelly v. Bridgeport, 111 Conn. 667, 671, 151 A. 268 [1930]; Mechem, Public Officers § 1.’ ” Murach v. Planning & Zoning Commission, 196 Conn. 192, 198, 491 A.2d 1058 (1985). The Connecticut constitution so provides. With respect to the first and third prongs, article second of the Connecticut constitution, in dividing the broad powers of government into three distinct branches, confers “a separate [judicial] magistracy” upon a “distinct department,” the judiciary; Pellegrino v. O’Neill, 193 Conn. 670, 679, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984); Heiberger v. Clark, 148 Conn. 177, 185, 169 A.2d 652 (1961); while article fifth, § 1 describes its organizational structure and reiterates that its powers and jurisdiction shall be defined by law. With respect to the second prong, article fifth, § 2 provides in relevant part: “They shall hold their offices for the term of eight years . . . .” Moreover, the judiciary’s right to compensation as public officers falls clearly within the distinction contemplated in Sibley v. State, supra, 685, where this court denied workers’ compensation benefits to a sheriff because, as a public officer, his right to compensation “ ‘belongs to him not by force of any contract, but because the law attaches it to the office.’ ” Id., quoting F. Mechem, supra, §§ 855 and 856.

The distinction between public employees and public officers, for the purpose of workers’ compensation, finds textual recognition in the jurisdictional definitions contained in the Workers’ Compensation Act. Section 31-275 (5) expressly includes some public officers, but not judges, within the class of those eligible for workers’ compensation by defining “employee” in relevant part to “include any person elected to serve as a member of the general assembly of this state and . . . any salaried officer or paid member of any police department or fire department and any elected or appointed official or agent of any city, town or borough, upon vote of the proper authority of such city, town or borough. . . . ” This enumeration would have been wholly unnecessary had these public officials constituted employees under the analysis of Sibley v. State, supra. Because, for purposes of statutory construction, we presume a purpose behind every sentence, clause or phrase in a legislative enactment; Peek v. Jac-quemin, supra, 66; we must attach significance to the legislature’s intention to grant workers’ compensation only to those public officers expressly described in § 31-275 (5). Statutory itemization indicates that the legislature intended the list to be exclusive. The B. F. Goodrich Co. v. Dubno, 196 Conn. 1, 6, 490 A.2d 991 (1985).

The legislative history of the evolution of the definition of “employee” under the Workers’ Compensation Act supports our conclusion that the legislature intended the express inclusions enumerated in § 31-275 (5) to be exclusive. Until 1921, the definition of “employee” necessary to invoke workers’ compensation had been limited to “any person who has entered into or works under any contract . . . .” General Statutes (1918 Rev.) § 5388. When we construed this contractual language to deny benefits to a member of a municipal fire department in McDonald v. New Haven, supra, 417-18, however, the legislature expressly amended the definition to bypass the decisional law for a specific category of public positions. See General Statutes (1918 Rev.) § 5388, as amended by chapter 306, § 11 of the Public Acts of 1921. Each subsequent addition to the category of public positions evinces an intention on the part of the legislature carefully to circumscribe the expansion of named beneficiaries. The telling omission of judges of the Superior Court from this exclusive list of expressly included exceptions is persuasive evidence that the legislature did not intend the scope of § 31-275 (5) to embrace the judiciary.

Our conclusion that the distinction between employment and public office is firmly embedded in our law of workers’ compensation does not conflict with the proposition that, in other circumstances, a public official may be considered an employee. “[A] municipal position, for certain purposes, may constitute a ‘public office’ and, for others, mere employment.” Murach v. Planning & Zoning Commission, supra, 200; State ex rel. Sloane v. Reidy, 152 Conn. 419, 426, 209 A.2d 674 (1965). With respect to judges of the Superior Court, and the Probate Court administrator, the legislature has determined, as General Statutes § 45-29u indicates, that they have the same entitlement to group life and health insurance as is expressly afforded to other state employees and members of the General Assembly by General Statutes §§ 5-257 and 5-259 of the State Personnel Act. Workers’ compensation is not among the benefits enumerated in § 45-29u.

It bears noting, finally, that the legislature has enacted comprehensive provisions concerning benefits specifically for judges. General Statutes, chapter 872. These statutes not only provide annual salaries; General Statutes § 51-47; but include specific entitlements to disability retirement; General Statutes § 51-49; retirement salary and allowance to surviving spouses; General Statutes § 51-49f; and pensions for surviving spouses and children. General Statutes § 51-51. The legislature conspicuously failed to include workers’ compensation within the benefits conferred upon judges by chapter 872. Since the legislature is presumed to exercise its statutory authority with knowledge of existing statutes and with the intention of creating one consistent body of law; Shortt v. New Milford Police Department, 212 Conn. 294, 302, 562 A.2d 7 (1989); Commissioner v. Freedom of Information Commission, 204 Conn. 609, 621, 529 A.2d 692 (1987); it is reasonable to infer that the legislature would not have intended, sub silentio, to confer such a benefit upon the judiciary. The more rational explanation for the legislature’s silence is that the legislature concluded that it would be duplicative to provide both disability benefits and workers’ compensation benefits to these public officers.

To construe § 31-275 (5) to include members of the judiciary within the class of those entitled to receive workers’ compensation benefits would constitute a radical departure from established policy. We will not infer that the legislature intended to enact a significant change in existing law without an unequivocally expressed manifestation of legislative intent. Iacomacci v. Trumbull, 209 Conn. 219, 222, 550 A.2d 640 (1988); Jennings v. Connecticut Light & Power Co., 140 Conn. 650, 667, 103 A.2d 535 (1954). Were this court to award compensation benefits to the spouse of a deceased judge, we “would be legislating by adding a new class to the coverage of this act which proclaims its limited scope.” Castro v. Viera, supra, 435. This we cannot do.

In response to the reservation from the compensation review division, whether a judge of the Superior Court is an “employee” for purposes of entitlement to workers’ compensation as defined by § 31-275 (5), we answer no.

In this opinion the other justices concurred.

       The compensation review division originally reserved two questions for the advice of this court: (1) Is a judge of the Superior Court of Connecticut an “employee” as defined in General Statutes § 31-275 (5)? (2) Does the widow of such a judge making a claim on her own and her children’s behalf for survivor dependency benefits under General Statutes § 31-306 satisfy the prerequisite jurisdictional elements necessary to effect entitlement pursuant to General Statutes, chapter 568? Counsel for both parties stipulated at oral argument that, because the existence of an employee-employer relationship is a jurisdictional prerequisite to an award of compensation benefits, the first question presents a threshold issue dispositive of this appeal. We therefore do not reach the second question.

       General Statutes § 31-324 states in relevant part: “When, in any case arising under the provisions of this chapter, the compensation review division is of the opinion that the .decision involves principles of law which are not free from reasonable doubt and which public interest requires shall be determined by the appellate court, in order that a definite rule be established applicable to future cases, said compensation review division may, on its own motion and without any agreement or act of the parties or their counsel, reserve such case for the opinion of the appellate court. ...”

       Procedurally, we have transferred this reservation to ourselves on two separate occasions. This court initially transferred the appeal to itself, but subsequently returned it to the compensation review division by order on January 19, 1989, for a decision on the plaintiff’s motion to dismiss the appeal. On April 6,1989, the compensation review division denied the plaintiff’s motion to dismiss for a procedural defect because, as a threshold matter, the review division could not exercise its competence over the claim until resolution of the jurisdictional challenge. The compensation review division resubmitted its jurisdictional reservation to the Appellate Court and we once again transferred the matter to this court pursuant to Practice Book § 4023.

       General Statutes § 31-298 provides in relevant part: “In all cases and hearings under the provisions of this chapter, the commissioner shall proceed, so far as possible, in accordance with the rules of equity. He shall not be bound by the ordinary common law or statutory rules of evidence or procedure, but shall make inquiry in such manner ... as is best calculated to ascertain the substantial rights of the parties and carry out justly the spirit of this chapter.”

       The decedent’s immediate supervisor, Chief Court Administrator Aaron Ment, testified and the commissioner so found that “ ‘five hats were a lot of work to do’ and that no single judge since then does all these jobs anywhere in the state.”

       The fact that a finding of similar causality by the commissioner in the case of a private employee covered by workers’ compensation would result in an award of benefits; McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987); sheds no light on the legal issue presently before us regarding the applicability of the Workers’ Compensation Act to judges of the Superior Court.

       Although the defendant initially contested its liability by claiming that the decedent’s heart conditions were preexisting and not causally related to his work, it declined to challenge the causality finding on appeal.

       The commissioner ordered the defendant to pay the plaintiff dependent widow $408 weekly plus the applicable cost of living increase as provided in General Statutes § 31-306 (b) (2), any reasonable medical bills incurred as a result of his death, and the statutory burial allowance of $3000. Initially, the commissioner also had awarded the decedent's minor children benefits in the amount of $10 weekly, but that award was later revoked in a corrected finding by the commissioner because survivorship benefits under § 31-306 do not provide for dependency benefits under General Statutes 5 31-308b.

       Both the defendant and the compensation review division on its own motion raised the question of subject matter jurisdiction in the instant case.

       Like courts of probate; In re Juvenile Appeal (85-BC), 195 Conn. 344, 366-67 n.18, 488 A.2d 790 (1985); and administrative agencies; Waterbury v. Commission on Human Rights & Opportunities, 160 Conn. 226, 230, 278 A.2d 771 (1971); workers’ compensation commissioners must act strictly within their statutory authority and cannot unilaterally modify, abridge or otherwise change such provisions because the act’s enabling legislation does not expressly grant that power. Castro v. Viera, 207 Conn. 420, 428-29, 541 A.2d 1216 (1988).

       General Statutes § 31-275 (6) defines “employer” for purposes of establishing liability under the act. It is uncontested that the defendant may be found to be an “employer” under § 31-275 (6).

       Attorney General Carl R. Ajello confirmed this distinction in an informational opinion in the form of a letter to State Comptroller J. Edward Caldwell dated January 21,1976. In response to an inquiry whether a Superior Court judge, suspended from service by the Judicial Department pending disposition of a criminal charge against him, is entitled to his regular salary, the attorney general stated that “[a] Judge of the Superior Court is one who holds an office,” and that his “right to a salary depends upon the legal title to the office and not upon the performance of the work.”

       For example, the legislature expanded the definition of “employees” to include members of the General Assembly in 1972. The legislative history of the debate surrounding passage of that legislation is particularly instructive on the point that the legislature was aware that state officers do not receive their salary as a matter of contract of service and would thus need a special amendment bypassing decisional law in order to qualify for workers’ compensation benefits. Representative Gerald F. Stevens remarked: “I would submit to you that once you take the oath of office you don’t ever have to come here and you are entitled to your pay.” 15 H.R. Proc., Pt. 6, 1972 Sess., p. 2494A-55.

       General Statutes § 45-29u provides in relevant part: “probate court administrator, salary AND benefits, (a) The probate court administrator shall be paid by the judicial department and shall be compensated in the same manner and amount as a superior court judge as provided in section 51-47. . . .
      “(b) The probate court administrator shall receive: (1) Retirement benefits provided in sections 51-49 to 51-50b, inclusive, and section 51-51; (2) life insurance benefits provided in section 5-257; (3) medical insurance benefits as provided in section 5-259; and (4) any other benefits which may be established for superior court judges by the general assembly or by the judicial department.”

       General Statutes § 5-257 provides in relevant part: “group life insurance. (a) The comptroller, with the approval of the attorney general and of the insurance commissioner, may revise the group insurance plan for employees of the state by amendment of any existing group life insurance policy or policies or by procuring from one or more life insurance companies authorized to do business in Connecticut a policy or policies of group life insurance covering employees of the state. Each employee in active state service shall be eligible for insurance under this section, provided he shall have completed more than six months’ continuous state service, and each member of the general assembly shall be eligible for insurance under this section, six months after taking office.”

       General Statutes § 5-259 provides in relevant part: “hospitalization AND MEDICAL AND SURGICAL INSURANCE PLAN. ELIGIBILITY, (a) The comptroller, with the approval of the attorney general and of the insurance commissioner, shall arrange and procure a group hospitalization and medical and surgical insurance plan or plans for (1) state employees, (2) members of the general assembly who elect coverage under such plan or plans, (3) participants in an alternate retirement program who meet the service requirements of section 5-162 or subsection (a) of section 5-166, and (4) anyone receiving benefits from any state-sponsored retirement system, except the teachers’ retirement system, the municipal employees retirement system, the general assembly pension system and the probate judges and employees retirement system.”

       As the state maintains, it is clear as a matter of law that a statutorily mandated salary, such as provided for judges in General Statutes § 51-47, does not create a private contract. “[Tjhere exists a ‘well-established presumption’ against finding that a statute creates private vested contractual rights absent a clear showing of legislative intent to the contrary. Taliaferro v. Dykstra, 434 F. Sup. 705, 710-11 (E.D. Va. 1977).” Pineman v. Oechslin, 195 Conn. 405, 410-11, 488 A.2d 803 (1985).


source: Caselaw Access Project

author: Covello, J.

license: Public Domain

text:
    John A. Connelly, State’s Attorney v. John Doe, M.D.
    (13707)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.

      Argued October 5
    decision released November 28, 1989

      Timothy J. Sugrue, deputy assistant state’s attorney, with whom, on the brief, was David E. Sullivan, assistant state’s attorney, for the appellant (plaintiff).

      Richard L. Albrecht, with whom, on the brief, was Jeremiah R. Dineen III, for the appellee (defendant).
   Covello, J.

This appeal arises out of proceedings before a one-man investigatory grand jury authorized by General Statutes (Rev. to 1983) § 54-47 (b). The dis-positive issue is whether the investigatory grand jury in question was limited, by the order that empaneled it, to investigate only those events that predated its empaneling. Because the plain language of both the court order and the relevant enabling statute authorized investigation into past conduct only, we conclude that the trial court did not err in limiting the scope of the grand jury inquiry to alleged criminal activity that predated its empanelment.

The relevant facts are not in dispute. On November 18, 1983, pursuant to General Statutes (Rev. to 1983) § 54-47, the chief court administrator appointed Honorable James F. Henebry to investigate fraud, corruption and patient abuse involving medicaid providers.* The order creating the grand jury stated “that an inquiry be made to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the superior court have been committed . . . . ” (Emphasis added.) In November, 1987, four years later, the grand jury subpoenaed the defendant, a psychiatrist and medicaid provider, to testify before it and to produce certain records pertaining to medicaid recipients for the period from January 1, 1985, through September 30, 1987. The parties agree that none of the information sought dealt with any alleged criminal acts that occurred prior to the November 18, 1983 empaneling of the grand jury. The defendant refused to comply with the subpoena. On January 20, 1988, the plaintiff, pursuant to General Statutes (Rev. to 1983) § 54-47 (e), obtained a citation directing the defendant to appear and show cause why he should not be found in contempt.

At the hearing on the contempt citation, the defendant moved to quash the subpoena and to dismiss the contempt action, claiming, inter alia, that the grand jury was not lawfully empowered to investigate his activities for the period in question (January 1, 1985, through September 30, 1987). On June 8, 1988, by memorandum of decision, the trial court granted both of the defendant’s motions on the ground that the grand jury was limited, by the order that created it, to investigating events that predated its empaneling. The trial court subsequently granted the state permission to appeal to the Appellate Court. We thereafter transferred the matter to ourselves pursuant to Practice Book § 4023.

Indicting grand juries have long existed at common law, and this court has held that the state’s attorney in such a setting has both common law and statutory authority to subpoena defendants to testify before the grand jury. See, e.g., State v. Morrill, 197 Conn. 507, 514, 498 A.2d 76 (1985). In comparison, the one-man investigatory grand jury is purely a creature of statute, authorized pursuant to General Statutes (Rev. to 1983) § 54-47, as amended. See State v. Blasko, 202 Conn. 541, 545-551, 553-55, 522 A.2d 753 (1987); In re Investigation of the Grand Juror, 4 Conn. App. 544, 549-50, 556, 495 A.2d 1098 (1985), appeal dismissed, 203 Conn. 1, 522 A.2d 1228 (1987). The investigatory grand jury has broad statutory authority to inquire into criminal activity and to report its findings to the court for possible prosecution of those responsible for such activity. In re Final Grand Jury Report Concerning the Torrington Police Department, 197 Conn. 698, 707, 501 A.2d 377 (1985); In re Investigation of the Grand Juror into the Bethel Police Department, 188 Conn. 601, 603, 452 A.2d 935 (1983); see also State v. Blasko, supra, 555.

Because the investigatory grand jury has no common law power, its powers necessarily are limited by the language of the enabling statute which authorizes its creation. General Statutes § 54-47 was enacted in 1941 as § 889f (1941 act). The pertinent language of the statute describing the scope of the investigation remained unchanged until § 54-47 was repealed in 1985.* ***** In 1983, the act authorized the grand jury to conduct an “investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed, within the judicial district . . . .’’(Emphasis added.) General Statutes (Rev. to 1983) § 54-47 (a).

The unequivocal and persistent use of the past tense in the enabling legislation manifests a clear legislative intent that the investigatory grand jury is limited in scope to investigation of past conduct only. The statute contains no language authorizing the investigation of “ongoing” or “continuing” activity. Had the legislature intended the investigatory grand jury to have continuing authority as to the scope of its inquiry, it could have provided so expressly, as other state legislatures have done. See, e.g., Commonwealth v. Bradfield, 352 Pa. Super. 466, 508 A.2d 568 (1986). Our conclusion is further supported by the legislature’s enactment of the 1985 act, which sought to preclude any possibility that an investigative grand jury empaneled thereafter could be deemed to have authority of an ongoing or continuous nature.

The relevant language of both the authorization order and the enabling statute is identical. As General Statutes (Rev. to 1983) § 54-47 provided, the order does not direct that an investigation be conducted into criminal activity occurring subsequent to November 18, 1983, but rather “to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the Superior Court have been committed . . . . ” (Emphasis added.)

In the instant case both the enabling legislation and the court order are clear and unequivocal and cannot be extended beyond their plain meaning. See General Statutes § 1-1 (a); Ganim v. Roberts, 204 Conn. 760, 763, 529 A.2d 194 (1987); State v. Parmalee, 197 Conn. 158, 161, 496 A.2d 186 (1985).

Criminal investigations by their nature are customarily directed at past conduct, and one-man grand jury investigations pursuant to § 54-47 are similarly retrospective. The clear and unequivocal meaning of the court order authorizing creation of Judge Henebry’s investigative grand jury, issued in the past tense, is that the grand jury is limited by that order to investigating only those events that predated the order.

There is no error.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1983) § 54-47 (b) provided: “The chief state’s attorney and the deputy chief state’s attorney may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable cause to believe that a crime or crimes have been committed. If the chief court administrator is satisfied from the application and any other papers or evidence submitted in support thereof that the administration of justice requires such an inquiry, he shall order that it be made and shall appoint a judge, a state referee or any three judges of the superior court to conduct the inquiry, with the assistance of the chief state’s attorney, deputy chief state’s attorney or any state’s attorney or assistant state’s attorney.”

       This grand jury is a continuation of the investigatory inquiry that was first convened in September, 1979. It is currently the only one-man grand jury operating under the authority of General Statutes (Rev. to 1983) § 54-47, which has since been repealed. Judge Henebry was appointed to relieve Judge Joseph A. Adorno.

       On January 19, 1988, the trial court sealed the file in the instant proceeding in order to protect the secrecy of the grand jury and the identity and reputation of the defendant.

       General Statutes (Rev. to 1983) § 54-47 (e) provided: “If any witness properly summoned fails to appear or to produce any documents included in the subpoena, or if he fails to answer any proper question, the judge, referee or judges conducting the inquiry may report the matter to the state’s attorney for the judicial district wherein the investigation is being conducted and such state’s attorney may file a complaint setting forth the facts at any criminal session of the superior court in such judicial district. The court shall thereupon issue a citation to the witness to appear before said court and show cause why he should not be punished as for a contempt, and if, after hearing, the court finds that he failed to appear without due cause or failed to produce any document properly to be presented to the judge, state referee or judges conducting the investigation or failed to answer any proper question in the course of the investigation, it may punish him as it might a witness failing to appear, to produce a document properly to be considered or to answer a proper question before the court.”

       The plaintiff state of Connecticut (named as John A. Connelly, state’s attorney for the judicial district of Waterbury) moved for permission to appeal on August 16,1988, in reliance upon General Statutes § 54-96, which provides: “appeals by the state from superior court in criminal cases. Appeals from the rulings and decisions of the superior court, upon all questions of law arising on the trial of criminal cases, may be taken by the state, with the permission of the presiding judge, to the supreme court or to the appellate court, in the same manner and to the same effect as if made by the accused.” On August 22, 1988, the trial court granted the motion “if in fact permission is necessary.” Subsequently, pursuant to Practice Book § 4056, the defendant moved this court to dismiss the state’s appeal for failure to file appeal papers within the allotted time. On January 17,1989, this court denied the defendant’s motion to dismiss the state’s appeal. The defendant raises the claim in his brief that the state has failed to file this appeal in timely fashion and thus this court lacks jurisdiction to hear it. Although we must address this jurisdictional claim, it is without merit because the time limited for filing an appeal is not jurisdictional. Silverman v. St. Joseph’s Hospital, 168 Conn. 160,170-171, 363 A.2d 22 (1975); LaReau v. Reincke, 158 Conn. 486, 492-96, 264 A.2d 576 (1969).

       General Statutes (1941 Sup.) $ 889f provided: “investigations into commission of crime. Whenever it shall appear to the superior court in any county that the due administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the county, said court may order an inquiry to be made into the matter, to be conducted before any judge of said court or a state referee. Such inquiry shall be conducted in public or private as said court shall order. The attendance of witnesses and the production of documents at such inquiry may be compelled by subpoena, signed by any official authorized to issue such process. Should any witness properly summoned fail to appear or to produce any documents included in such subpoena, or should he fail to answer any proper question, the judge or referee conducting such inquiry may punish him for contempt to the same extent as in the case of a witness before a court. Witnesses may be examined by the judge or state referee conducting the inquiry or by the state’s attorney or by any other attorney or attorneys appointed by the court for such purpose. The official stenographer of said court or his assistant shall record any testimony so taken. At the conclusion of such inquiry the judge or referee conducting the same shall file with the court a report and the court shall direct whether, and to what extent, such report shall be made available to the public or interested parties; and any transcript of testimony taken at such inquiry shall likewise be filed with the court and it shall have the same powers with reference to it as it has with reference to the report; provided that any person accused of crime as a result of such inquiry shall have access at all reasonable times to the transcript of his own testimony given by him in such inquiry.”
      The 1941 statute was amended at numerous times until it evolved into the statute in effect at the time Judge Henebry’s grand jury was empaneled, General Statutes (Rev. to 1983) § 54-47 (1983 act). The legislature later enacted Public Acts 1985, No. 85-611, now codified as General Statutes § 54-47a et seq. (1985 act), to institute far-reaching procedural reforms of the investigatory grand jury system. See State v. Blasko, 202 Conn. 541, 547-50, 522 A.2d 753 (1987). The 1985 act repealed the 1983 act, in part to eliminate the abuses allegedly inherent in the so-called “perpetual” one-man grand jury. One of these reforms was to impose a six month time limitation on the duration of the grand jury, subject to a maximum of two six month extensions. General Statutes § 54-47d (c). A potential for the excessive duration of the one-man grand jury under the 1983 act was perceived as an abuse that the legislature intended to cure by the new act. See 28 H.R. Proc., Pt. 17, 1985 Sess., pp. 6061, 6064, statements of Representative Christopher Shays, May 15,1985. The legislature subsequently enacted Public Acts 1986, No. 86-317, codified as General Statutes § 54-47i, which clarified the legislative intent not to repeal or terminate any one-man investigatory grand jury that had been empaneled prior to the 1985 act. State v. Blasko, supra, 558-59.
      Despite the number of changes that the 1941 act had undergone prior to its repeal in 1985, the language defining the scope of the investigation has remained the same, directing the grand jury to perform an “investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the county . . . . ” General Statutes (1941 Sup.) § 889f. The interpretation of the statute as urged by the state would allow, as the last vestige of the 1983 act, Judge Henebry to continue his investigation until the end of his judicial life. Grand juries convened prior to October 1, 1985, “ ‘shall continue until the conclusion of the inquiry and [until] a final report has been filed.’ General Statutes § 54-47i (a).” State v. Blasko, supra, 551-52. In the instant case it is entirely conceivable that no final report ever could be filed, since before one investigation is concluded, another appears or reappears.

       See footnote 6, supra.

       In Commonwealth v. Bradfield, 352 Pa. Super. 466, 475-76, 508 A.2d 568 (1986), a grand jury was empaneled under Pennsylvania state law to investigate organized crime, clearly defined in the statute as “any continuing criminal conspiracy. . . .” (Emphasis added.) 42 Pa. Cons. Stat. § 4542 (Purdon 1981). Bradfield is not only distinguishable on the facts from the instant case, but it also supports our conclusion that had the legislature intended one-man grand jury investigations to be continuous in nature, it would have stated so in express terms.

       See footnote 6, supra.

       General Statutes (Rev. to 1983) § 54-47 provided in pertinent part: “investigations into commission op crime, (a) Whenever it appears to the superior court for any judicial district that the administration of justice requires an investigation to determine whether or not there is probable cause to believe that a crime or crimes have been committed within the judicial district, said court may order an inquiry to be made into the matter, to be conducted before any judge, state referee, or any three judges of said court designated by it.
      “(b) The chief state’s attorney and the deputy chief state’s attorney may also apply to the chief court administrator for an order that an inquiry be made to determine whether or not there is probable came to believe that a crime or crimes have been committed. If the chief court administrator is satisfied from the application and any other papers or evidence submitted in support thereof that the administration of justice requires such an inquiry, he shall order that it be made and shall appoint a judge, a state referee or any three judges of the superior court to conduct the inquiry, with the assistance of the chief state’s attorney, deputy chief state’s attorney or any state’s attorney or assistant state’s attorney.” (Emphasis added.) Similarly, the November 18,1983 court order authorizing Judge Henebry’s one-man grand jury provides in pertinent part: “[Tjhat an inquiry be made to determine whether there is probable cause to believe that a crime or crimes within the jurisdiction of the Superior Court have been committed ....’’ (Emphasis added.)

       It is probable that the only act left to be performed by Judge Henebry’s one-man grand jury is to file its final report and cease its investigation since it appears that no prosecution is possible on any pre-November 18, 1983 offenses because of the expiration of the applicable statutes of limitation. The grand jury does have the option to turn over to the state’s attorney’s office any information indicating criminal activity subsequent to its empaneling, or alternatively, to recommend empaneling a new grand jury to investigate such subsequent criminal activity.


author: Glass, J. Callahan, J.,

text:
    State of Connecticut v. John Lonergan
    (13640)
    Healey, Callahan, Glass, Covello and Hull, Js.

      Argued October 5
    decision released November 28, 1989

      Geoffrey E. Marion, deputy assistant state’s attorney, with whom, on the brief, were John M. Bailey, state’s attorney, Alan Reisner, assistant state’s attorney, and Maria Kahn, former legal intern, for the appellant (state).

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

This appeal involves the issue of whether a charge brought against a defendant in a second prosecution constitutes, for double jeopardy purposes, the “same offense” for which the defendant has already been tried. In particular, the question presented is whether this court should make this determinaton simply by examining the statutory elements of the crimes, as set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), or in addition, as suggested by In re Nielsen, 131 U.S. 176, 9 S. Ct. 672, 33 L. Ed. 118 (1889), and its progeny, by examining the record to determine if the state will rely on the same evidence in the latter prosecution as it used in the former.

The Appellate Court’s opinion revealed the following undisputed facts and procedural history of the case. See State v. Lonergan, 16 Conn. App. 358, 548 A.2d 718 (1988). On May 22,1985, the defendant, John Lonergan, was driving a car on Airport Road in Hartford. At approximately 9 p.m., the defendant’s vehicle collided with a motorcycle operated by Scott Sementilli. 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. 2On the following day, 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 charges.

The state elected to sever the two counts and proceeded to trial on the manslaughter count only. The manslaughter count was tried to the court and, 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, therefore, 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 on the ground that such a second prosecution was barred by the double jeopardy clause of the fifth amendment to the United States constitution and article first, § 9 of the Connecticut constitution. The trial court ruled that the defendant’s constitutional right against double jeopardy prevented the state from prosecuting him for operating a motor vehicle while under the influence. The state then appealed the trial court’s ruling to the Appellate Court.

The Appellate Court affirmed the trial court’s dismissal of the information charging the defendant with operating under the influence, and on February 22, 1989, this court granted the state’s petition for certification, limited to this issue: “Did the Appellate Court err in holding that the double jeopardy clause bars a prosecution on a charge of operating a motor vehicle while under the influence of intoxicating liquor after acquittal of a charge of manslaughter in the second degree with a motor vehicle while intoxicated arising out of the same incident?” The state argues that the Appellate Court erred in holding that the prosecution of the defendant on the charge of operating a motor vehicle while under the influence of liquor was barred by the double jeopardy clause. Specifically, the state contends that the Appellate Court misconstrued both federal and state law pertaining to what constitutes double jeopardy in successive prosecution cases. In addition, the state maintains that the precedent set by the Appellate Court’s decision is contrary to the purposes of the double jeopardy clause. We do not agree and, therefore, affirm the judgment of the Appellate Court.

I

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. This constitutional guarantee is applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In addition, although the Connecticut constitution does not include a specific double jeopardy provision, this 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). Therefore, the due process guarantees provided by article first, § 9 of the Connecticut constitution 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). The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (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.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969).

The state argues that the Appellate Court erred in holding that manslaughter in the second degree with a motor vehicle while intoxicated was the “same offense” as operating a motor vehicle under the influence of liquor, and thus the defendant’s acquittal on the manslaughter count barred the state from prosecuting him on the count of operating while under the influence. The state asserts that the determination of whether the two crimes constituted the “same offense” should have been made solely by applying the test set forth in Blockburger v. United States, supra. In Blockburger, 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. Id., 304. In so doing, the United States Supreme Court, emphasizing a comparison of the elements of the offenses, fashioned the following test: “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. This test is a technical one and examines only 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); see State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982).

The United States Supreme Court, in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), extended the Blockburger test to apply to successive prosecution cases. In Brown, the state of Ohio had attempted to prosecute the defendant for the crime of auto theft after he had already been convicted of joyriding (taking or operating a motor vehicle without the owner’s consent). Id., 162-64. Applying the Block-burger test, the court concluded that since joyriding did not require proof of an element distinct from auto theft, it was a lesser included offense of auto theft, and therefore the two crimes constituted the “same offense.” Id., 168-69.

In applying the Blockburger test to the present case, the Appellate Court correctly concluded that under this test manslaughter with a motor vehicle while intoxicated was not the same offense as operating under the influence, as each offense required proof of a fact that the other did not. See State v. Lonergan, supra, 366. 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. As the Appellate Court accurately noted, “[wjhile 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.” State v. Lonergan, supra, 367.

The Appellate Court, however, did not end its double jeopardy analysis at this point. Rather, the Appellate Court concluded that the Blockburger test was not the only applicable test for determining whether successive prosecutions impermissibly involve the “same offense.” Invoking the United States Supreme Court decision of Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), the Appellate Court held: “[I]f 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.” State v. Loner-gan, supra, 368. The Appellate Court then concluded that, since the state was going to use the same evidence in its prosecution of the defendant for operating under the influence as it had used in its previous prosecution of the defendant for manslaughter, the second prosecution was barred as violative of the double jeopardy clause. Id., 378.

The state argues that the Appellate Court’s departure from a strict Blockburger analysis was contrary to United States Supreme Court precedent and, accordingly, reversible error. We do not agree. Although the United States Supreme Court in Brown v. Ohio, supra, extended the Blockburger test to apply to successive prosecution cases, the court did not state that the Block-burger test was the exclusive method for determining whether successive prosecutions involved the “same offense” in violation of the double jeopardy clause. In Brown, the court concluded that the two crimes of auto theft and joyriding failed to satisfy the Blockburger test and, therefore, were the same offense for double jeopardy purposes. Significantly, however, the Brown court did not end its inquiry at this point. Rather, the court proceeded to declare: “The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense. Even if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by the first.” Brown v. Ohio, supra, 166 n.6.

To support this assertion, the Brown court relied on Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), and In re Nielsen, supra, positing that these cases offer double jeopardy protection in successive prosecution cases beyond that of Blockburger. The court stated: “[I]n Ashe . . . where an acquittal on a charge of robbing one of several participants in a poker game established that the accused was not present at the robbery, the Court held that principles of collateral estoppel embodied in the Double Jeopardy Clause barred prosecutions of the accused for robbing the other victims. And in In re Nielsen . . . the Court held that a conviction of a Mormon on a charge of cohabiting with his two wives over a 2 1/2-year period barred a subsequent prosecution for adultery with one of them on the day following the end of that period.

“In both cases, strict application of the Blockburger test would have permitted imposition of consecutive sentences had the charges been consolidated in a single proceeding. In Ashe, separate convictions of the robbery of each victim would have required proof in each case that a different individual had been robbed. . . . In Nielsen, conviction for adultery required proof that the defendant had sexual intercourse with one woman while married to another; conviction for cohabitation required proof that the defendant lived with more than one woman at the same time. Nonetheless, the Court in both cases held the separate offenses to be the ‘same’ for [double jeopardy purposes].” Brown v. Ohio, supra, 166 n.6. In particular, the Nielsen court held: “[W]here . . . a person has been tried and convicted for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” In re Nielsen, supra, 188.

Additionally, in 1977, the United States Supreme Court in Harris v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977), relied on Nielsen to bar a second prosecution when the Blockburger test would have permitted it. Harris involved a prosecution for robbery after a conviction for felony murder in which the robbery was the underlying felony. Citing the Nielsen “incidents” language, and failing to cite Blockburger at all, the court, in a per curiam decision, held: “When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.” Harris v. Oklahoma, supra, 682.

Three years later, Harris was followed by a similar analysis and decision in Illinois v. Vitale, supra. In Vitale, the defendant was involved in an automobile accident that resulted in two deaths. He was convicted for the traffic offense of failing to reduce speed to avoid an accident. The state subsequently attempted to prosecute him for involuntary manslaughter, but the Illinois Supreme Court held that the two offenses were the same for double jeopardy purposes. Id., 412-15. The United States Supreme'Court then granted certiorari, and vacated the judgment of the Illinois Supreme Court and remanded, employing what was, in effect, a two-tiered analytical framework for determining whether the two offenses were the same. The court stated: “If, 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. 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. Id., 419-20.

In short, the court in Vitale 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. See G. Thomas, “The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition,” 71 Iowa L. Rev. 323, 350-52 (1986). The court made it clear, however, that this additional protection is not implicated by the “mere possibility” that the second prosecution will require proof of the same conduct as the first. Rather, the state must actually rely on the same conduct or concede that it will do so. Therefore, because of the Vitale court’s “doubts about the relationship under Illinois law between the crimes of manslaughter and a careless failure to reduce speed to avoid an accident, and because the reckless act or acts the State [would] rely on to prove manslaughter [were] still unknown,” the court vacated the judgment of the Illinois Supreme Court and remanded the case to that court. Illinois v. Vitale, supra, 421.

Thus, we are not persuaded that the Appellate Court contravened United States Supreme Court precedent in State v. Lonergan, supra. In fact, many other courts have interpreted United States Supreme Court precedent as granting such additional double jeopardy protection in successive prosecution cases. See, e.g., Rubino v. Lynaugh, 845 F.2d 1266 (5th Cir. 1988); United States v. Ragins, 840 F.2d 1184 (4th Cir. 1988); Flittie v. Solem, 775 F.2d 933 (8th Cir. 1985), cert. denied, 475 U.S. 1025, 106 S. Ct. 1223, 89 L. Ed. 2d 333 (1986); Jordan v. Virginia, 653 F.2d 870 (4th Cir. 1980); United States v. Black, 605 F. Sup. 1027 (D.C. 1985); United States v. Haggerty, 528 F. Sup. 1286 (D. Colo. 1981); State v. McGaughy, 505 So. 2d 399 (Ala. Crim. App. 1987); State v. Burroughs, 246 Ga. 393, 271 S.E.2d 629 (1980); State v. DeLuca, 108 N.J. 98, 527 A.2d 1355, cert. denied, 484 U.S. 944,108 S. Ct. 331, 98 L. Ed. 2d 358 (1987); 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); May v. State, 726 S.W.2d 573 (Tex. Crim. App. 1987).

The state appropriately indicates, however, that a number of courts have construed United States Supreme Court precedent as suggesting a strict Block-burger analysis. See, e.g., United States v. Benton, 852 F.2d 1456 (6th Cir.), cert. denied sub nom. Campbell v. United States, 488 U.S. 993, 109 S. Ct. 555, 102 L. Ed. 2d 582 (1988); United States v. Genser, 710 F.2d 1426 (10th Cir. 1983); United States v. Brooklier, 637 F.2d 620 (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). As the Appellate Court noted: “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 Block-burger 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.” State v. Lonergan, supra, 373. The second reason is a statement made by Justice Rehnquist in his dissenting opinion in Thigpen v. Roberts, 468 U.S. 27, 104 S. Ct. 2916, 82 L. Ed. 2d 23 (1984). In his dissent, Justice Rehnquist made the following assertion regarding Vitale: “Tam 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, supra, 36] (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.” State v. Lonergan, supra, 373-74.

Like the Appellate Court, we find these reasons unpersuasive. First, although the United States Supreme Court in Vitale labeled the Blockburger test the “principal test” for determining whether two offenses are the same for purposes of barring successive prosecutions, the court did not state that it was the test. In fact, the court has stated: “The Blockburger test is not the only standard for determining whether successive prosecutions impermissibly involve the same offense.” Brown v. Ohio, supra, 166 n.6. Second, Justice Rehnquist’s views regarding Vitale were set forth in dissent in Thigpen, and thus were not the expressed views of the majority of the court. Further, Justice Rehnquist’s assertion that Vitale mandated a strict application of Blockburger is refuted by the fact that the Vitale court remanded the case for further factual clarification regarding what the state’s proof was to be in the subsequent trial. If Justice Rehnquist were correct that only a Blockburger comparison of the statutory elements was prescribed by Vitale, then it would have made no difference what the state’s proof would have been in the subsequent trial. See G. Thomas, “The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition,” 71 Iowa L. Rev. 323, 352 (1986). Finally, “the impact of the fact that three justices dissented to the denial of certiorari in [Illinois v. Zegart, supra,] 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.” State v. Lonergan, supra, 375-76.

In sum, the Appellate Court’s extension of double jeopardy protection in successive prosecution cases in excess of that offered by Blockburger is not contrary to United States Supreme Court precedent, and therefore, does not constitute reversible error.

II

Next, the state argues that the Appellate Court’s failure to employ an unmodified Blockburger analysis was not in accord with this court’s prior decisions. The state concedes that the question of whether to provide increased double jeopardy protection beyond that offered by Blockburger is one of first impression for this court. The state argues, however, that this court has “given a number of indications that it does not subscribe to the Appellate Court’s interpretation of Vitale.” We disagree. The state supports its assertion by citing State v. McCall, 187 Conn. 73, 90, 444 A.2d 896 (1982), and State v. Truppi, 182 Conn. 449, 468, 438 A.2d 712 (1980), cert, denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981), for the proposition that in single prosecution cases this court has held that evidence should not be examined. These cases are inapposite, however, as they only refer to single prosecution cases, and there is no dispute that Vitale reaffirmed the application of the traditional Blockburger test in single prosecution cases. Therefore, this court’s prior decisions have not indicated what analytical framework should be utilized to determine whether successive prosecutions involve the “same offense” in violation of the double jeopardy clause.

Ill

Finally, the state contends that the Appellate Court’s establishment of double jeopardy protection in successive prosecution cases beyond that offered by Block-burger fails to serve the purposes of the double jeopardy clause. We disagree. The ideal embodied in the double jeopardy clause is of ancient origins, and its essential role in an individual’s protection against government tyranny cannot be doubted. Justice Black, in Green v. United States, 355 U.S. 184, 187-88, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), wrote: “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.”

In short, ‘ ‘ [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.’ ” People v. Robideau, 419 Mich. 458, 484, 355 N.W.2d 592 (1984). Thus, “[gjiven 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.” United States v. Ragins, supra, 1188.

Accordingly, the Appellate Court’s conferral of expanded protection in successive prosecution cases clearly serves the purposes of the double jeopardy clause.

IV

In conclusion, we adopt the reasoning of the Appellate Court and hold that in successive prosecution cases “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.” State v. Lonergan, supra, 368. Applying this test to the present case, we further hold that the prosecution of the defendant for operating a motor vehicle while under the influence of liquor or drugs in violation of General Statutes § 14-227a is barred, under the facts of this case, as violative of the double jeopardy clause. Given the record before us, and the fact that the state has so conceded, it is evident that the state intends to relitigate the issue of whether the defendant was operating while under the influence of liquor.* The record clearly indicates that in the second prosecution for operating while under the influence the state will rely on and seek to prove the same act of operating while intoxicated that was necessary to prove the manslaughter charge in the first prosecution. Thus, since 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 In re Nielsen, supra, and its progeny and, therefore, this second prosecution is barred on double jeopardy grounds.

The judgment of the Appellate Court is affirmed.

In this opinion Healey, Covello and Hull, Js., concurred.

Callahan, J.,

dissenting. I disagree with the majority’s holding that, in a successive prosecution case, two offenses can be considered the “same offense” for double jeopardy purposes where the same evidence or conduct proves both offenses even though the same two offenses would not be considered the same offense if brought in a single prosecution. I would reverse the Appellate Court and hold that the Block-burger test should be applied in successive prosecution cases to determine what constitutes the “same offense” for double jeopardy purposes.

Illinois v. Vitale, 447 U.S. 410, 100 S. Ct. 2260, 65 L. Ed. 2d 228 (1980), affirmed that the Blockburger test, as set forth in Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), is “the principal test for determining whether two offenses are the same for purposes of barring successive prosecutions. Quoting from Blockburger v. United States, 284 U.S. 299, 304 [52 S. Ct. 180, 76 L. Ed. 306] (1932), which in turn relied on Gavieres v. United States, 220 U.S. 338, 342-343 [31 S. Ct. 421, 55 L. Ed. 489] (1911), [the United States Supreme Court] held 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. [The United States Supreme Court] recognized that the Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on the actual evidence to be presented at trial.” Illinois v. Vitale, supra, 416. “[T]he Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Iannelli v. United States, 420 U.S. 770, 785 n.17, 95 S. Ct. 1284, 43 L. Ed. 2d 616 (1975). “The mere possibility that the State will seek to rely on all of the ingredients necessarily included in the [less serious offense] to establish an element of [the more serious offense] would not be sufficient to bar the latter prosecution.” Illinois v. Vitale, supra, 419. Thus, the United States Supreme Court has repeatedly recognized that a second prosecution will not be barred on double jeopardy grounds simply because the evidence offered in the second prosecution may be duplicative of the evidence admitted in the first.

In Brown v. Ohio, the court outlined the policy behind the double jeopardy clause in successive prosecution cases. “Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ . . . That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal . . . and from attempts to secure additional punishment after a prior conviction and sentence . . . .” (Emphasis added, citations omitted.) Brown v. Ohio, supra, 165-66. Here, however, the state is not attempting to relitigate the facts underlying the prior acquittal. “The trial court [in the first prosecution] ruled that the state had failed to prove beyond a reasonable doubt that the defendant’s alleged intoxication had caused the death of [the victim] and, accordingly, granted the defendant’s motion for judgment of acquittal.” State v. Lonergan, 16 Conn. App. 358, 360, 548 A.2d 718 (1988).

The sole issue determined by the trial court was that the defendant’s alleged intoxication was not the cause of the death of the victim as required for manslaughter in the second degree with a motor vehicle. The trial court never decided any of the elements of operating a motor vehicle while under the influence. Thus, the conduct of which the defendant was acquitted is not an element of the less serious crime for which the state now desires to prosecute him.

While I agree 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”; Green v. United States, 355 U.S. 184, 187, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957), this principle only applies when the state is attempting to relitigate the same offense. “[T]he 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). . . . ” State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985).

Under the majority’s analysis, the two offenses, operating a motor vehicle while under the influence and manslaughter in the second degree with a motor vehicle, constitute two different offenses and can be punished separately if the state brings both charges in a single trial. If, however, the state chooses to prosecute the crimes in two separate trials, they are considered the “same offense” apparently even if the first trial did not resolve the elements necessary to prove the second offense. Thus, the definition of what constitutes the “same offense” for double jeopardy purposes will vary depending upon whether the charges are brought in a single rather than a successive prosecution. The practical result of the majority’s opinion will be to force the state to bring both charges in the same proceeding; a result previously not required by the double jeopardy clause. The policies underlying the double jeopardy clause do not support this analysis and I cannot agree with such an inconsistent approach.

Accordingly, I dissent.

       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 areas 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: “manslaughter in the second degree with a motor vehicle while intoxicated: class c felony, (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.”

       “The felony murder statute at issue in Harris [v. Oklahoma, 433 U.S. 682, 97 S. Ct. 2912, 53 L. Ed. 2d 1054 (1977),] did not on its face require proof of a robbery to establish a conviction, and the robbery statute likewise did not require proof of a murder, thus under a strict application of the Blockburger test the two statutes would not be held to proscribe the same offense.” Note, “Multiple Prosecutions and Punishments Under RICO: A Chip Off the Old ‘Blockburger,’ ” 52 Cinn. L. Rev. 467, 482 (1983).

       “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: T 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. . . . ’ ” State v. Lonergan, 16 Conn. App. 358, 373 n.12, 548 A.2d 718 (1988).

       Furthermore, the Blockburger test is not talismanic. For example, in single prosecution cases it is not definitive in determining whether multiple punishments may be imposed. Rather, it is only a rule of statutory construction, utilized in what is “essentially a factual inquiry as to legislative intent [rather than] a conclusive presumption of law.” Garrett v. United States, 471 U.S. 773, 779, 105 S. Ct. 2407, 85 L. Ed. 2d 764 (1985); see Whalen v. United States, 445 U.S. 684, 708,100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980) (Rehnquist, J., dissenting).

       As the Appellate Court noted: “No Connecticut cases, 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.” State v. Lonergan, 16 Conn. App. 358, 371 n.9, 548 A.2d 718 (1988).

         In addition, the state argues that the Appellate Court’s decision is in conflict with this court’s decisions granting the state broad discretion in how it proceeds against'an accused. See State v. Ellis, 197 Conn. 436, 474, 497 A.2d 974 (1985); State v. Silver, 139 Conn. 234, 243-44, 93 A.2d 154 (1952). But, as the Appellate Court appropriately notes: “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.” State v. Lonergan, 16 Conn. App. 358, 379, 548 A.2d 718 (1988).

       “Historians have traced the origins of our constitutional guarantee against double jeopardy back to the days of Demosthenes, who stated that ‘the laws forbid the same man to be tried twice on the same issue. . . .’” Whalen v. United States, 445 U.S. 684, 699, 100 S. Ct. 1432, 63 L. Ed. 2d 715 (1980) (Rehnquist, J., dissenting), quoting 1 Demosthenes 589 (J. Vince trans. 4th Ed. 1970). “The date of Demosthenes quotation was 355 B.C., M. Friedland, Double Jeopardy 16 n.7 (1969), and the principle underlying the double jeopardy clause is, therefore, at least 234[4] years old.” G. Thomas, “The Prohibition of Successive Prosecutions for the Same Offense: In Search of a Definition,” 71 Iowa L. Rev. 323, 325 n.8 (1986).

       See United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977) (“permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression”); Benton v. Maryland, 395 U.S. 784, 795, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969) (“the fundamental nature of the guarantee against double jeopardy can hardly be doubted”).

       The Supreme Court of Alaska has stated: “Although [the Blockburger\ test has been widely used by the courts, it has been increasingly criticized as not coping satisfactorily with the problem it was designed to solve. Legislative refinement of an essentially unitary criminal episode into numerous separate violations of the law has resulted in a proliferation of offenses capable of commission by a person at one time and in one criminal transaction. Since each violation by definition will usually require proof of a fact which the others do not, application of the [Blockburger] test will mean that each offense is punishable separately. But as the separate violations multiply by legislative action, the likelihood increases that a defendant will actually be punished several times for what is really and basically one criminal act.” Whitton v. State, 479 P.2d 302, 306 (Alaska 1970).
      In fact, a commentator has noted that the Bloekburger test would permit six successive trials for a single act of sexual intercourse (adultery, fornication, bastardy, rape, incest, and impairing the morals of a minor). See note, “The Double Jeopardy Clause as a Bar to Reintroducing Evidence,” 89 Yale L.J. 962, 967 n.27 (1980).

       Although the issue in the first prosecution was whether the defendant’s conduct was in consequence of his “intoxication,” and in the second prosecution the issue would be whether the defendant was operating a motor vehicle while “under the influence,” as the Appellate Court and the trial court both correctly 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.’ ” State v. Lonergan, 16 Conn. App. 358, 361, 548 A.2d 718 (1988); see Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985). Thus, the issue of whether the defendant was operating “under the influence” was necessarily litigated in the first trial.

       “The‘same evidence’test is not constitutionally required. It . . . has never been squarely held by this Court to be the required construction of the constitutional phrase ‘same offense’ in a case involving multiple trials; indeed, in that context it has been rejected. See In re Nielson, 131 U.S. 176 [9 S. Ct. 672, 33 L. Ed. 118 (1889)], discussed in Abbate v. United States, [359 U.S. 187, 201, 79 S. Ct. 666, 674, 3 L. Ed. 2d 729 (1959)].” Ashe v. Swenson, 397 U.S. 436, 452-53, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970) (Brennan, J., concurring).

       The majority cites footnote 6 in Brown v. Ohio, 432 U.S. 161, 166-67, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977), to support its conclusion that the Blockburger rule is not the sole test for determining whether successive prosecutions involve the same offense. In Brown, the court stated: “[E]ven if two offenses are sufficiently different to permit the imposition of consecutive sentences, successive prosecutions will be barred in some circumstances where the second prosecution requires the relitigation of factual issues already resolved by theftr&t.” (Emphasis added.)Brown v. Ohio, supra, 166-67 n.6. As mentioned, however, in this case the state is not attempting to relitigate facts already resolved by the first prosecution.