State v. Meadows

185 Conn.App. 287

197 A.3d 464

STATE of Connecticut

v.Cody MEADOWS

AC 40472

Appellate Court of Connecticut.

Argued May 22, 2018

Officially released October 9, 2018

John L. Cordani, Jr., New Haven, assigned counsel, for the appellant (defendant).

Bruce R. Lockwood, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Laura Deleo, senior assistant state's attorney, for the appellee (state).

FLYNN, J.

The defendant, Cody Meadows, was convicted after a jury trial of two counts of criminal violation of a standing criminal protective order in violation of General Statutes § 53a-223a, one count of threatening in the second degree in violation of General Statutes (Rev. to 2015) § 53a-62(a)(2)¹ and one count of threatening in the second degree in violation of § 53a-62(a)(3). On appeal, the defendant claims that (1) the two convictions for violation of the standing criminal protective order violated his protection against double jeopardy, (2) the trial court erroneously instructed the jury as to the second count of violation of a standing criminal protective order, and (3) his conviction under § 53a-62(a)(3) violated his right to freedom of speech under the first amendment to the United States constitution. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 1, 2015, the defendant, along with the victim,² the mother of his children, appeared before the juvenile court in New Haven for a hearing relating to their children. At the time, the defendant, pursuant to the terms of a standing criminal protective order, was to have no "contact [with the victim] in any manner, including by written, electronic or telephone [communication]" and was not to "assault, threaten, abuse, harass, follow, interfere with, or stalk the [victim]." As an exception, the order provided that "contact with [the victim was] only allowed for purposes of visitation as directed by [the] family court." As the hearing began, the defendant tried to "make small talk" with the victim, who ignored him. According to the victim, the defendant tried to tell her that he loved her and asked her why she had blocked her telephone, but she continued to ignore him and to look toward the judge. At this point, the defendant told the victim, "you're going to have problems when I get home, bitch." The victim then looked at the defendant who mouthed that he was going to "f---ing kill [her]." The victim told the defendant that she could hear him and that he should stop threatening her. The defendant remarked that he was not threatening; thereafter, he stopped trying to converse with the victim. The victim considered the defendant's statements to be real threats, and she was fearful after she heard them.

At the conclusion of the hearing, the defendant met, at the courthouse, with a social worker, Shannon McGinnis. During the meeting, the defendant appeared upset and told McGinnis that "if he's not with [the victim], he's going to make sure nobody else is with her." The defendant then said that, "if [the victim] chooses not to be with him, he will beat the f---ing shit out of her" and would "make her another Tracey Morton."³ The defendant also said that "[h]e would kill himself or die suicide by cops ...." At this point, McGinnis informed the defendant that his statements were concerning and that she would have to tell others about them; the defendant then stopped making such statements. Afterward, McGinnis met with the victim and informed her that during their meeting the defendant had threatened to hurt the victim. The victim thereafter contacted the state police and, after meeting with a state police officer, signed a statement that had been prepared by the officer. At trial, the victim testified that she believed the threats against her were real and that she had feared the defendant even though he was in prison, where he would remain for seven more months.

The state subsequently charged the defendant in a four count information with two counts of violation of a standing criminal protective order and two counts of threatening in the second degree. After a jury trial, the defendant was convicted on all four counts. This appeal followed.

I

The defendant first claims that his conviction for two counts of violation of a standing criminal protective order violated his right to be free from double jeopardy. He argues that count one of the information, which alleged a violation of the protective order by having contact with the victim, and count two of the information, which alleged a violation of the protective order by threatening and harassing the victim, arose out of the same act. Specifically, the defendant argues that his conversation with the victim inside the courtroom was a "single, continuous, [and] uninterrupted" act, and that it, therefore, cannot be dissected and penalized as two separate acts. Because the court rendered a judgment of conviction on two counts of violation of a standing criminal protective order resulting from that single conversation, the defendant claims his right against double jeopardy was violated.⁴ In support of this argument, the defendant relies on Rowe v. Superior Court , 289 Conn. 649, 667–68, 960 A.2d 256 (2008), and State v. Nixon , 92 Conn. App. 586, 590–91, 886 A.2d 475 (2005). Additionally, the defendant argues that the language of § 53a-223a(c) exemplifies the legislature's intent to make a violation of a standing criminal protective order punishable only once. We disagree.

The defendant did not preserve this claim at trial, nor has he asked, on appeal, for review under State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989).⁵ Nevertheless, "[a] defendant may obtain review of a double jeopardy claim, even if it is unpreserved, if he has received two punishments for two crimes, which he claims were one crime, arising from the same transaction and prosecuted at one trial .... Because the claim presents an issue of law, our review is plenary.... Double jeopardy analysis in the context of a single trial is a two-step process. First, the charges must arise out of the same act or transaction.... Second, it must be determined whether the charged crimes are the same offense. Multiple punishments are forbidden only if both conditions are met." (Citations omitted; internal quotation marks omitted.) State v. Nixon , supra, 92 Conn. App. at 590–91, 886 A.2d 475.

Counts one and two of the state's long form information respectively charged that the defendant (1) "violate[d] the ... protective order ... by having contact with the protected person, in violation of ... [§] 53a-223a" and (2) that the defendant "violate[d] the ... protective order ... by threatening and harassing the protected person, in violation of ... [§] 53a-223a." Although these counts charge the defendant under the same statute, we conclude that the offenses charged did not arise out of the same act. Our courts have long held that "distinct repetitions of a prohibited act, however closely they may follow each other ... may be punished as separate crimes without offending the double jeopardy clause.... The same transaction, in other words, may constitute separate and distinct crimes where it is susceptible of separation into parts, each of which in itself constitutes a completed offense.... [T]he test is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable by the [statute]." (Internal quotation marks omitted.)

State v. Miranda , 260 Conn. 93, 120, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S.Ct. 224, 154 L.Ed.2d 175 (2002) ; see also State v. Morales , 164 Conn. App. 143, 157, 136 A.3d 278 (same), cert. denied, 321 Conn. 916, 136 A.3d 1275 (2016) ; State v. James E. , 154 Conn. App. 795, 833, 112 A.3d 791 (2015) (same), cert. denied, 321 Conn. 911, 136 A.3d 1273 (2016).

In other words, the fact that a defendant's two separate charges of violation of a standing criminal protective order arise from acts that closely follow one another is not determinative, by itself, of whether they constitute a single criminal offense. Rather, the question is whether each act charged by the state is susceptible of separation into parts which are separate, complete offenses and are thus punishable under the controlling statute. The contact described in the first count is less culpable than the conduct charged in the second. In the first count, the defendant is merely charged with prohibited contact with the victim. In the second, he is charged with threatening and harassing the victim. Each of these charges, based upon a separate act, was a separate offense that led to a separate conviction.

In State v. Miranda , supra, 260 Conn. at 120, 794 A.2d 506, our Supreme Court considered whether the defendant, who had been convicted of two counts of assault in the first degree for injuries resulting to a minor child in his care, was being punished twice for the same offense. In answering that question in the negative, our Supreme Court concluded that the defendant's failure to act, which had resulted in two separate injuries to the victim, constituted two separate acts of omission rather than one continuous failure to act. Id., at 124, 794 A.2d 506. Similarly, in State v. James E. , supra, 154 Conn. App. at 831, 112 A.3d 791, the defendant shot the victim twice and was convicted of two counts of assault of an elderly person in the first degree, which he claimed violated his right against double jeopardy. This court held that each shooting was a separate and distinct act because the defendant first removed the gun from his cabinet, turned toward the victim and shot him; the defendant then, approached the victim, grabbed his shirt and shot him again. Id., at 834, 112 A.3d 791.

In the present case, the defendant's conversation with the...