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*********************************************** 
STATE OF CONNECTICUT v. OSCAR H.*

(AC 43622)

Lavine, Prescott and Suarez, Js.**

Syllabus

The defendant, who had been convicted of several crimes, including murder,

as a result of the stabbing death of N, appealed, claiming that the trial

court improperly admitted into evidence the deposition testimony of B,

whom the defendant also stabbed during the same incident, after having

improperly determined pursuant to the former testimony exception to

the rule against hearsay in the applicable provision (§ 8-6 (1)) of the

Connecticut Code of Evidence that B, an undocumented immigrant,

who had returned to her native Guatemala prior to trial, was unavailable

to testify. The defendant also claimed that his conviction of attempt to

commit murder and assault in the first degree as to B violated the

constitutional prohibition against double jeopardy because each crime

was predicated on the same act against B. Prior to trial, the court granted

the state’s motion to issue a subpoena for B to be deposed, as her return

to Guatemala would put her beyond the state’s subpoena power. At the

judicially supervised deposition, which was video-recorded and transcribed, the defendant had an opportunity to cross-examine B without

any restrictions by the court. B, who spoke no English, thereafter left for

Guatemala. At trial, P, a director of an immigrant services organization,

testified that she had spoken with B at least once a month after B

returned to Guatemala and that, at the state’s request, she spoke to B

by phone three days before the trial and B indicated that she would not

voluntarily return to Connecticut to testify. The defendant argued that

the state had failed to establish B’s unavailability because, inter alia, P

spoke with B only by phone and did not testify that she had seen B in

Guatemala, there was no evidence that B had been forced to leave the

United States and because the state should have advised B not to return

to Guatemala. The trial court admitted the videotaped deposition, concluding that the state had met its burden of establishing B’s unavailability

pursuant to § 8-6 (1). Held:

1. The trial court properly determined that B was unavailable to testify and

admitted her deposition testimony at trial, the state having acted in

good faith and with due diligence to procure her attendance: under

the totality of the circumstances presented, the defendant’s rights to

confrontation and due process were not violated, as the state made

sufficient efforts to establish B’s unavailability, the defendant provided

no legal authority that required the state to take additional steps beyond

those it pursued to procure B’s attendance at trial, the state was aware

of her immigration status and desire to return to Guatemala, it kept in

touch with her throughout the pretrial proceedings through P, who

maintained contact with B after she left the United States and, at the

state’s request, contacted B three days before trial to inquire if she

would be willing to return, and, as it was highly unlikely that any additional efforts by the state would have succeeded in convincing B to

return voluntarily, this court was not convinced that the state was

required to expend any and all available resources to eliminate the

complex challenges posed by her immigration status or to extend logistical and financial incentives to induce her return to Connecticut; moreover, despite the defendant’s unavailing assertion that, even if B had

been properly found to be unavailable, the admission of the deposition

transcript violated his rights to confrontation and due process, the defendant had an unfettered opportunity to confront B at the deposition, which

was taken under agreed upon parameters and the direct supervision of

a judge who did nothing to restrict the defendant’s cross-examination

of her, B was under oath and subject to the penalty of perjury, the

videotape of the deposition reflected her demeanor, the state made no

objections to her testimony, and, to the extent that impeachment evidence existed, the defendant declined to present it at trial when given

the opportunity to do so; furthermore, any potential that B’s examination

at trial might have differed from her deposition testimony or that the
defendant might later have become privy to additional information to

utilize during cross-examination was speculative and not a basis on

which to conclude that his confrontation rights were violated.

2. The defendant could not prevail on his unpreserved claim that his conviction of attempted murder and assault in the first degree violated the

constitutional prohibition against double jeopardy, which was based on

his assertion that he was punished twice on the same evidence for the

same offense against the same victim, B: because attempted murder

requires intent to cause the death of the victim, which is not an element

of assault in the first degree, and assault in the first degree requires

serious injury to the victim with a deadly instrument, which are not

elements of attempted murder, those crimes are not the same offense

for purposes of double jeopardy, nor can assault in the first degree be

a lesser offense included within attempted murder; moreover, although

the operative information charged attempted murder and assault in the

first degree in separate and distinct counts, nothing in the language of

those counts could be construed as evincing any intent by the state to

charge the defendant in the alternative, as the charges were not pursued

by the state in an alternative manner, nor was such a theory discussed

in closing argument, and the defendant requested no instruction, nor

did the court give any instruction to the jury, indicating that it should

consider the charges only as standing in a greater-lesser relationship;

furthermore, the defendant’s failure to raise his double jeopardy claim

at trial belied any indication that the double jeopardy claim was obvious

on the face of the information or in the manner in which the case was

charged, and the defendant advanced nothing from which to discern

any legislative intent to preclude the prosecution of a criminal defendant

for both attempted murder and assault in the first degree.

Argued October 20, 2020—officially released April 27, 2021

Procedural History

Substitute information charging the defendant with

the crimes of murder, attempt to commit murder,

assault in the first degree and risk of injury to a child,

brought to the Superior Court in the judicial district of

Fairfield and tried to the jury before Russo, J.; verdict

and judgment of guilty, from which the defendant

appealed. Affirmed.

Naomi T. Fetterman, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state’s attorney, with

whom, on the brief, were Joseph T. Corradino, state’s

attorney, John C. Smriga, former state’s attorney, and

Emily D. Trudeau, assistant state’s attorney, for the

appellee (state).
Opinion

PRESCOTT, J. The defendant, Oscar H., appeals from

the judgment of conviction, rendered following a jury

trial, of murder in violation of General Statutes § 53a54a (a), attempt to commit murder in violation of General Statutes §§ 53a-49 and 53a-54a (a), assault in the

first degree in violation of General Statutes § 53a-59 (a)

(1), and risk of injury to a child in violation of General

Statutes § 53-21 (a) (1). The defendant claims that (1)

the trial court improperly determined that the surviving

assault victim, B, was unavailable to testify at trial and,

on the basis of that determination, admitted B’s prior

deposition testimony into evidence in violation of our

rules of evidence and his constitutional rights to confrontation and due process, and (2) his conviction of

both attempted murder and assault in the first degree

violated the constitutional prohibition against double

jeopardy because each crime was predicated on the

same act and against the same victim, B.1 We disagree

with both claims and, accordingly, affirm the judgment

of the court.

The jury reasonably could have found the following

facts on the basis of the evidence admitted at trial.

The defendant and N began a romantic relationship

sometime in 2006 or 2007. In 2010, they had a child

together, S. The defendant, N, and S lived together in

a small basement apartment in Bridgeport.

In January, 2017, approximately one month before

the events at issue, N spoke to her mother, L, about

problems in her relationship with the defendant. Specifically, she complained that the defendant had been

increasingly acting jealous and was following her. N

asked L to speak with the defendant on her behalf. N

told her mother, ‘‘I can’t stand him anymore,’’ and that

she wanted to leave him. When L spoke to the defendant

soon thereafter, he told L that S had been saying things

to him about N that led him to believe that N was

cheating on him with another man.

On February 10, 2017, N’s friend and coworker, B,

who recently had broken up with a boyfriend with

whom she had been living, moved into the Bridgeport

apartment with N and the defendant. B and N worked

together cleaning houses in Fairfield and Westport. B,

like N, had been born in Guatemala, and she had come

to the United States in 2013 as an undocumented immigrant.

On February 16, 2017, N, N’s sister, the defendant,

and B attended a baby shower for one of the defendant’s

relatives. During the shower, N’s sister had a private

conversation with the defendant. The defendant told

N’s sister that N wanted ‘‘to split from him’’ but that

‘‘he could not be separated from [N] because [N] was

the love of his life.’’

On February 23, 2017, after they had finished work
for the day, N and B picked up S from her school. The

three of them then picked up the defendant from his

place of work in Norwalk. The defendant told them

that he needed to visit one of his sons,2 who was in a

hospital in Greenwich. The defendant dropped off N,

B, and S at L’s house in Stamford while he went to visit

with his son. When the defendant picked them up to

return to Bridgeport, he had ‘‘a bag with beer in it.’’ He

drank one beer while he drove back to the Bridgeport

apartment. Once at the apartment, the defendant drank

three or four more beers, and N and B drank ‘‘Micheladas,’’ a mixture of beer and Clamato juice.

Later in the evening, N saw a posting on Facebook

indicating that a female friend was at a local club, and

N and B discussed joining her. After N obtained ‘‘permission’’ from the defendant to go, N and B left, still dressed

in the clothes they had worn to work that day. At least

three other female friends were at the club when B and

N arrived, and N bought ‘‘a bucket of beers,’’ which

amounted to one beer for each of the women. The

women danced and sang karaoke. While they were at

the club, the defendant made at least two video calls

to N, asking her to move her phone around so that he

could see who was with her at the club. B and N stayed

at the club for between one and one and one-half hours

before returning to the apartment at about 1 a.m.

Although the defendant and N seemed to be getting

along at first, while B was in the bathroom getting ready

for bed, she heard N scream for her help. She came

out of the bathroom to find the defendant holding N

by her hair with a knife to her neck.3 After cutting N’s

throat, the defendant attacked B, stabbing her in the

lower back. B begged the defendant not to kill her

because she had children who needed her support, but

the defendant stabbed her in the neck. B held her breath

while the defendant kicked her and N to see if they

were alive. Convinced that neither was breathing, he

went into the bathroom to wash the victims’ blood off

himself in the shower.

After showering and changing his clothes, the defendant retrieved S, who was asleep in her bedroom, and

fled the apartment, necessarily passing through the

bloody crime scene in the living area. When she heard

the door of the apartment close, B, who was still alive,

dragged herself toward the door so that she could yell

for help from the landlords who lived upstairs. The

landlords heard B calling out and came downstairs to

investigate.4 They observed N’s body lying on the floor

and called 911.

Officer Phillip Norris arrived on the scene at approximately 2:55 a.m. in response to a dispatch call. He

observed N and B lying on the floor, both badly injured.

N was not visibly breathing, but B was moving. When

paramedics arrived several minutes later, they determined that N was deceased.5 They transported B to a
hospital by ambulance. B told one of the paramedics

that she had been ‘‘stabbed with a kitchen knife.’’6

As part of their investigation to locate the defendant,

the police learned from N’s sister that the defendant

had mentioned to her that he might go to his sister’s

house in Texas if he and N ever separated. The police

issued an Amber Alert for the defendant and S that

included a description of the defendant’s Hyundai

Sonata, its license plate number, and an indication that

the defendant might be heading south out of the state.7

Pennsylvania State Police received the Amber Alert as

well as information that the defendant’s cell phone had

been found in Altoona, Pennsylvania. Officers were

directed to take up positions along several of Pennsylvania’s interstate highways. At approximately 11 a.m.,

Pennsylvania police observed a vehicle matching the

description of the vehicle described in the Amber Alert

and initiated a traffic stop. The defendant initially complied with orders given by the police via their vehicle’s

public address system to open his car door and put

his hands through the window. He did not comply,

however, with their subsequent order that he exit the

vehicle. Rather, he abruptly closed his door and sped

away. A high speed chase ensued for approximately

five miles, ending with the defendant crashing his car

into the back end of a tractor trailer. The defendant

was rendered unconscious by the crash. S was found

crying in the backseat of the vehicle. The police took

the defendant into custody and transported him to a

hospital via ambulance.

As part of their investigation of the crime scene, the

police found two knives in the Bridgeport apartment.

One of the knives was located underneath N’s hand.

Although she was not holding the knife, her thumb was

resting on the knife’s handle.8 A forensic analysis of the

knives revealed that the defendant’s DNA profile was

included in a sample taken from the hilt of one knife

and could not be eliminated as a contributor to a sample

collected from the handle of the other knife.

The state charged the defendant in a four count

amended information.9 Count one charged the defendant with murdering N. Counts two and three were

directed at the defendant’s acts against B, accusing him

of attempted murder and assault in the first degree with

a dangerous instrument. Specifically, count two of the

information alleged that the defendant, ‘‘with intent to

cause the death of [B], did stab and attempt to cause

the death of [B] . . . .’’ Count three alleged that, on

the same date, time, and location referred to in count

two, the defendant, ‘‘with intent to cause serious physical injury to [B], did cause serious physical injury to

[B] with a dangerous instrument, to wit: a knife . . . .’’

Count four accused the defendant of risk of injury to

a child.10

The defendant testified on his own behalf at trial,
essentially claiming that the two women had been intoxicated, they had attacked each other with knives, and

he had not intentionally harmed either woman but had

struggled to take a knife from B after she had attacked

him. He also claimed that he had fled with S from the

apartment to shield her from the bloody aftermath of

the event.11 The jury apparently did not credit the defendant’s version of events, finding him guilty of all

charges. The court sentenced the defendant to a total

effective term of seventy-five years of incarceration.12

This appeal followed. Additional facts and procedural

history will be set forth as needed.

I

The defendant first claims that the court improperly

admitted into evidence a videotape and transcript of

the pretrial deposition testimony of B, who did not

testify at trial. Specifically, the defendant argues that the

court improperly determined that B was unavailable, a

foundational prerequisite for the admission of former

testimony under our rules of evidence and to comport

with constitutional rights of confrontation and due process. We are not persuaded by the defendant’s arguments.13

The following additional facts and procedural history

are relevant to this claim. On June 19, 2017, the defendant entered a plea of not guilty and elected a jury

trial. On September 27, 2017, the state filed a motion

to advance the time of trial. The state argued in its

motion, inter alia, that B, who was the sole living eyewitness to the charged crimes, was not a citizen of the

United States and had expressed a desire to return to

her home country, which would put her beyond the

reach of the state’s subpoena power.14 The state

asserted that the advancement of the trial would ‘‘not

work an unfair hardship on the defendant and [would

be] in the interest of justice’’ because B’s unavailability

as a witness would ‘‘work a substantial hardship upon

the state and result in a miscarriage of justice.’’ At a

hearing on the state’s motion, the defendant objected

on the grounds that he had not had sufficient time to

meet with his defense attorney and the defense lacked

information regarding tests being performed on evidence at the state laboratory. The court, Devlin, J.,

granted the motion on October 4, 2017, but indicated

that the trial date would not be set until after all relevant

laboratory tests were completed.

On October 17, 2017, the state filed a motion pursuant

to Practice Book § 40-44 asking the court to issue a

subpoena for B to appear for a deposition. In that

request, the state indicated that B’s testimony would

be necessary at trial. It further stated that B was not a

citizen of the United States, but a native of Guatemala,

and that she had ‘‘expressed an intention of imminent

return there, thus rendering herself beyond the reach

of the state’s subpoena power.’’ According to the state,
B was unable to work due to the serious nature of the

injuries she had sustained. Furthermore, B purportedly

was the mother of four children in Guatemala ‘‘who

have previously been cared for by her father, who is

no longer capable of doing so.’’ Initially, the defendant

did not oppose the taking of the deposition but later

raised a number of objections, primarily concerning

difficulties pertaining to defense counsel’s schedule in

other matters and the need for Spanish speaking interpreters for both the defendant and B. The court nevertheless granted the state’s motion and scheduled the

deposition.

The court, Pavia, J., judicially supervised the taking

of B’s deposition, which was conducted in court on

November 21, 2017. The deposition was videotaped in

accordance with agreed upon procedures and recorded

for transcription by a court monitor. During the deposition, B testified that the defendant had stabbed her and

N. The court, at the request of the defendant, took a

recess after B’s direct testimony to provide defense

counsel with an opportunity to discuss B’s testimony

with the defendant. Following the recess, the defendant

had an opportunity to thoroughly cross-examine B

about her direct testimony. The court did not place any

restrictions on the cross-examination.

At trial, the state presented testimony from Lorely

Peche, a family and school services director at Building

One Community, an organization that provides immigrant support services. Peche had acted as a conduit

for B with both the state’s attorney’s office and the

Office of the Victim Advocate because B spoke no

English. According to Peche, at the state’s request, she

had spoken with B about the trial three days prior.

Peche stated that B was in Guatemala and that she

spoke with B about her willingness to return to testify.

B indicated to Peche that she did not have the ability

to get documentation to return to the United States and

that she would not voluntarily return to Connecticut

to testify.

On cross-examination, Peche stated that she had spoken with B at least once a month since she had left the

country, which was shortly after her deposition, and

that B had left voluntarily. When asked by defense counsel if she was aware of any program that allowed undocumented immigrants to remain in the country because

of their status as a crime victim, Peche answered that

she did not know of any such program. She stated that

she had B’s current phone number in Guatemala and

had provided that information to the Office of the Victim

Advocate.

The following day, the state offered B’s videotaped

deposition testimony as a full exhibit under the former

testimony exception to the hearsay rule. It asked the

court to find, on the basis of Peche’s testimony, that B

was unavailable because she was in Guatemala and
there was no compulsory process available to the state

to bring her to Connecticut, noting that the out-of-state

subpoena statute applied only to individuals in the

United States. The prosecutor represented to the court

that B had left the United States because she could no

longer work and because she had family in Guatemala

who could support and care for her. The state took the

legal position that, because B had stated on more than

one occasion that she would not return to the United

States, and the state had no legal means to compel her

to do so, she was unavailable.

The defendant argued that the state had failed to

establish B’s unavailability because it had failed to offer

a witness who could represent to the court, ‘‘yes, I know

where [B] is, I have seen her, she is in Guatemala.’’

According to the defendant, Peche was not such a witness because she had spoken with B only by phone.

The defendant also argued that there was no evidence

that she was forced to leave the country and that ‘‘she

should have been advised [by the state] that she could

not go back [to Guatemala].’’ The defendant provided

no authority that the state had a duty or the power to

keep B from returning to Guatemala.15 Although the

defendant conceded that he had had an opportunity to

cross-examine B at the time she gave her deposition

testimony, the defendant also argued that, ‘‘due processwise,’’ his cross-examination of B would have been different if he had had the benefit of other witnesses’ trial

testimony at the time of the deposition.

After reviewing the deposition, the court granted the

state’s request to admit B’s videotaped deposition. The

court expressly found Peche’s testimony credible and

sufficient to establish the fact that B had returned to

Guatemala. The court continued: ‘‘[T]he Connecticut

Code of Evidence is basically leaving unavailability to

each court on a case-by-case basis. And the court, after

hearing from [the state], does make the reasonable

inference that she returned to Guatemala, not because

she was uncooperative in any degree; in fact, the court

does believe she was somewhat cooperative, but she

had left for different reasons—different personal reasons other than the advancement of the prosecution of

this case. So, the court does find that her having been

returned to Guatemala voluntarily, and the fact that

she’s beyond the state’s subpoena power and had cooperated in part, the court does find that the state has

met its burden of demonstrating unavailability.’’ The

court also found that the state had met its burden of

establishing the two additional foundational elements

necessary under § 8-6 of the Connecticut Code of Evidence,16 concluding that B was deposed on substantially

the same issues as those in the trial, and that the defendant had had a fair opportunity to develop the testimony

being offered.17

We now turn to our discussion of the defendant’s
claim. We begin with pertinent legal principles. Under

our rules of evidence, former testimony by a witness

is not excluded under the hearsay rule if the witness

is unavailable to testify at trial, the former testimony

and current proceedings involve substantially similar

issues, and the opposing party had an opportunity to

question the witness when the former testimony was

elicited. See Conn. Code Evid. § 8-6 (1). Even if this

evidentiary standard is met, however, in a criminal prosecution, the testimony must also pass constitutional

muster.

The right to confront a witness through cross-examination is fundamental and essential to a fair trial; see

Pointer v. Texas, 380 U.S. 400, 405, 85 S. Ct. 1065, 13

L. Ed. 2d 923 (1965); but courts recognize an exception

to confrontation rights if a witness is (1) unavailable

at trial and has (2) provided testimony at a prior judicial

proceeding that was subject to cross-examination by

the defendant. See Crawford v. Washington, 541 U.S.

36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (‘‘[w]here

testimonial evidence is at issue . . . the [s]ixth

[a]mendment demands what the common law required:

unavailability and a prior opportunity for cross-examination’’). Under such circumstances, the former testimony may be admitted without violating the confrontation clause. In other words, a twofold approach is

proper in analyzing an alleged denial of the right to

confrontation by the admission of former testimony;

first, a threshold inquiry into the unavailability of the

witness and, second, an inquiry into the adequacy of

cross-examination of the witness at the first proceeding.

It is the unavailability determination of the court that

the defendant challenges in the present appeal.

In State v. Lebrick, 334 Conn. 492, 506–507, 223 A.3d

333 (2020), our Supreme Court recently had the opportunity to evaluate the reasonableness of the state’s

efforts to produce a witness for trial and, in so doing,

clarified the appellate standard of review applicable to

the present claim. ‘‘[T]he issues of the unavailability of

the witness and the reasonableness of the [s]tate’s

efforts to produce the witness [under] the [c]onfrontation [c]lause [of] the [s]ixth [a]mendment . . . are

mixed questions of law and fact . . . .’’ (Internal quotation marks omitted.) Id., 506. Accordingly, ‘‘[a]lthough

we are bound to accept the factual findings of the trial

court unless they are clearly erroneous . . . the ultimate determination of whether a witness is unavailable

for purposes of the confrontation clause is reviewed

de novo.’’ (Citation omitted; internal quotation marks

omitted.) Id., 507.

The court in Lebrick reiterated that ‘‘[f]ormer testimony . . . is inadmissible under both our rules of evidence and the confrontation clause unless the state has

made a reasonable, diligent, and good faith effort to

procure the absent witness’ attendance at trial. This
showing necessarily requires substantial diligence. In

determining whether the proponent of the declaration

has satisfied this burden of making reasonable efforts,

the court must consider what steps were taken to secure

the presence of the witness and the timing of efforts to

procure the declarant’s attendance. . . . A proponent’s

burden is to demonstrate a diligent and reasonable

effort, not to do everything conceivable, to secure the

witness’ presence. . . . Indeed, it is always possible,

in hindsight, to think of some additional steps that the

prosecution might have taken to secure the witness’

presence, but the [s]ixth [a]mendment does not require

the prosecution to exhaust every avenue of inquiry, no

matter how unpromising. . . . But if there is a possibility, albeit remote, that affirmative measures might produce the declarant, the obligation of good faith may

demand their effectuation.’’ (Citations omitted; emphasis in original; internal quotation marks omitted.) Id.,

508–509.

Although recognizing that any number of factors may

be relevant to a reasonableness inquiry in a particular

case, our Supreme Court considered the following four

factors, adopted from federal case law,18 in assessing

the reasonableness of the state’s efforts to produce a

missing witness in the context of a criminal trial. See

id., 511–12; id., 513 n.11 (noting that consideration of

other factors relevant to reasonableness inquiry is not

precluded in any particular case). ‘‘First, the more crucial the witness, the greater the effort required to secure

his attendance. . . . Second, the more serious the

crime for which the defendant is being tried, the greater

the effort the [state] should put forth to produce the

witness at trial. . . . Third, [if] a witness has special

reason to favor the prosecution, such as an immunity

arrangement in exchange for cooperation, the defendant’s interest in confronting the witness is stronger.

. . . Fourth, a good measure of reasonableness is to

require the [s]tate to make the same sort of effort to

locate and secure the witness for trial that it would have

made if it did not have the prior testimony available.’’

(Internal quotation marks omitted.) Id., 512.

In Lebrick, the issue before the Supreme Court was

whether the trial court improperly had determined that

a key state’s witness in a felony murder-home invasion

prosecution was unavailable for trial because she had

not been located and, thus, also improperly admitted

her former preliminary hearing testimony in violation

of the defendant’s confrontation clause rights. Id., 503–

504. The defendant in Lebrick had argued at trial that the

state’s efforts to procure the witness’ in-court testimony

were insufficient to meet the evidentiary and constitutional unavailability standard because the state had conducted a far too restrictive electronic search for the

witness’ then current address and phone number, and

had failed to contact relatives, friends, or landlords who

might have had helpful information as to her where-
abouts.19 Id., 503. The trial court had disagreed with the

defendant and implicitly found that the state’s efforts

to locate the witness were sufficient to establish her

unavailability for both evidentiary and constitutional

purposes. Id. This court rejected the defendant’s claim

and affirmed the trial court’s judgment of conviction,

but our Supreme Court, after adopting and applying a

less deferential standard of review than that employed

by this court, agreed with the claim and reversed this

court’s judgment. Id., 504–507, 521.

A majority of the Supreme Court concluded that the

vigor of the state’s efforts to locate the witness was

seriously lacking. Id., 518. The court took issue with

the fact that the state knew it was dealing with a ‘‘crucial

and reluctant witness whose testimony at the probable

cause hearing had to be procured by court order but

nonetheless did not keep apprised of her whereabouts

or begin searching for her until . . . shortly before jury

selection began.’’ Id., 515. The court also was critical

of the efforts of the state’s investigator, noting that,

‘‘[a]lthough [he] knew that [the witness] was a New

York resident, he did not search any New York state

governmental databases to look for routine information, such as motor vehicle, social service, housing

court, family court, or child support records. He did

not use the information in his possession about [the

witness’] last known addresses to learn whether she

owned her own home or had a landlord who might have

knowledge of her whereabouts. Nor did he ever ask

anyone else to pursue any of these basic avenues of

inquiry.’’ Id. The court also stated that the state’s investigator unnecessarily limited his electronic search to

databases that contained ‘‘relatively narrow categories

of information’’ rather than a more expansive ‘‘basic

Google search engine’’ or ‘‘any of the most popular

social media sites, such as Facebook.’’ Id.

The court also took issue with the state’s ‘‘ground

efforts,’’ describing them as ‘‘equally anemic.’’ Id., 517.

Specifically, the court noted that the state’s investigator,

after forwarding the addresses he had found to the

district attorney’s office in New York City to facilitate

service of an interstate summons, never spoke with the

district attorney’s office or requested that anyone in

New York ‘‘undertake any investigative efforts, knock

on doors, talk with neighbors, locate a landlord, follow

any leads, or conduct the most minimal surveillance.’’

Id. The court further criticized the efforts of the district

attorney’s investigator, noting that his visits all had

occurred during ‘‘normal working hours, when most

people with a nine-to-five job would not be expected to

be at home.’’ Id. The state’s investigator never requested

that the district attorney’s investigator do any followup visits after he reported his initial lack of success.

Id., 518.

Finally, in evaluating the reasonableness of the state’s
efforts to locate the witness in light of the four factors

relevant in criminal cases, our Supreme Court concluded that all but one favored the defendant, noting

that (1) the witness’ prior testimony had provided the

state with ‘‘crucial, inculpatory evidence regarding the

defendant’s role in the commission of the crimes,’’ (2)

the crimes for which the defendant was charged were

extremely serious, especially the charge of felony murder, which carried a potential sentence of imprisonment

for twenty-five years to life; id., 514; and (3) it was

unable to ‘‘conclude that the state’s efforts to locate

[the witness] were as vigorous as they would have been

if it [had] no preliminary hearing testimony to rely [on]

in the event of unavailability.’’ (Internal quotation marks

omitted.) Id., 515. Only the third of the four factors

favored the state because the witness had no particular

reason to favor the prosecution. Id.

In arguing the present claim, the defendant leans into

the Lebrick decision as generally requiring significant

vigor on the part of the state to procure the attendance

of a witness at trial before the state may rely on that

witness’ unavailability as a basis for admitting the witness’ former testimony. The Lebrick decision, however,

primarily concerned the scope of the state’s efforts to

obtain the current contact information for a witness

who was living in a neighboring state and whose attendance readily and legally could have been compelled

by way of an interstate warrant if the state had made

reasonably diligent efforts to find her. By contrast, the

present case is concerned with what efforts the state

must take to secure the attendance at trial of a witness

whose whereabouts are known, but who has indicated

a refusal to voluntarily appear and is outside the subpoena powers of the prosecuting authority. Courts that

have considered what constitutes due diligence on the

part of the state under these latter circumstances have

not required the state to go beyond a good faith inquiry

as to the witness’ intentions to attend trial in order to

establish a witness’ unavailability.

More directly on point with the facts of the present

case is this court’s decision in State v. Morquecho, 138

Conn. App. 841, 54 A.3d 609, cert. denied, 307 Conn.

941, 56 A.3d 948 (2012). In Morquecho, this court

affirmed the trial court’s determination regarding the

unavailability of a witness located in Ecuador and its

conclusion that the state had made reasonable efforts

to secure the witness’ attendance at trial.20 Id., 862. As

in the present case, the defendant in Morquecho was

facing a murder charge. Id., 842. A key witness had

returned to Ecuador. Id., 856. At trial, the state sought

to admit the witness’ former testimony from a probable

cause hearing. Id., 855. To establish that the witness

was unavailable for trial and that the state had made

reasonable efforts to procure the witness’ attendance,

the state presented the testimony of an investigator

with the Office of the State’s Attorney who testified on
the basis of her search that the witness was in Ecuador,

although she did not testify that the state had either a

current address or telephone number for the witness.

Id., 855–56. The state also called a police detective who

testified that, ‘‘to his knowledge, sometime after [the

witness] testified at the probable cause hearing, he

returned to Ecuador and remained in that country. . . .

[A]pproximately six months earlier, in connection with

[an] earlier trial, he obtained [the witness’] telephone

number in Ecuador from [his] mother and that he spoke

with [the witness]. . . . [H]e told [the witness] that his

testimony at trial was crucial and asked [him] to return

to Connecticut but [the witness] indicated that ‘[h]e

was not going to come back’ and that ‘he had no interest

in coming back . . . .’ Nonetheless, [the witness] asked

[the detective] to advise him as to the outcome of the

trial.’’ Id., 856. The detective also testified that ‘‘he did

not speak to [the witness] after that conversation and

did not speak to him in connection with the present

trial.’’ Id. Finally, the detective testified that ‘‘the state

provided transportation and immigration assistance to

two other witnesses who were living abroad . . . to

ensure their presence at the trial.’’ Id.

After the court initially ruled that the state had failed

to establish the witness’ unavailability, the state called

the witness’ mother to testify. She testified that ‘‘[the

witness] was in Ecuador, she spoke with [him] two

weeks earlier and [he] did not want to return to Connecticut. . . . [H]e did not want to return to Connecticut because of concerns about what the defendant

would do to him if he was released from prison.’’ Id.,

857. The state also presented testimony from a different

police detective who stated that, ‘‘two weeks earlier,

with the assistance of a Spanish speaking police officer,

he contacted [the witness] in Ecuador and tried to convince him to return to Connecticut. [The witness]

refused. . . . [I]n the weeks prior to trial, the police

left several messages for [the witness], but he did not

respond to these messages.’’ Id.

The prosecutor renewed his request to admit the

former testimony of the witness. In arguing that the

state had made reasonable efforts to procure the witness’ in-court testimony, the prosecutor made a representation to the court that, ‘‘although the state had

provided travel assistance to two other witnesses after

they had expressed a willingness to return to Connecticut for the trial, [this witness] had not expressed such

willingness. The prosecutor [further] represented: ‘I

don’t think there’s any reason to presume that, had . . .

[the witness] wanted to come back, that the state would

not have [arranged for his transportation to and accommodations in Connecticut].’’ (Emphasis added.) Id., 858.

The trial court ruled that the state had met its burden

of demonstrating the unavailability of the witness and

admitted the testimony from the probable cause hearing. Id.
On appeal, the defendant in Morquecho argued that

the state’s efforts to procure the witness for trial was

‘‘less than diligent’’ because ‘‘the state merely located

[the witness] and took at ‘face value’ his representation

that he would not return to testify.’’ Id., 858–59. In affirming the trial court’s ruling that the state had made

diligent and reasonable efforts, this court noted that

the record established ‘‘that persons, on behalf of the

state, determined [the witness’] whereabouts, conducted research to ensure that he was not in the

United States, spoke with him about the importance

of his presence at trial and directly inquired if he would

return to testify. These efforts were made until the

eve of trial.’’ Id., 861. This court expressly rejected the

defendant’s arguments that ‘‘the state conceivably could

have done more to secure [the witness’] attendance

by providing travel and immigration assistance to [the

witness], taking steps to ensure that [the witness] did

not leave the country prior to trial and providing protection to [the witness] during his stay in Connecticut,’’

and that ‘‘the state undertook greater efforts to secure

the presence of other state witnesses who were living

abroad.’’ Id.

The United States Supreme Court also has considered

for purposes of establishing the unavailability of a witness in a criminal trial what constitutes reasonable and

diligent efforts to procure the attendance of a witness

whose location may be known but who is purportedly

outside the jurisdiction of the prosecuting authority’s

subpoena powers. See Barber v. Page, 390 U.S. 719,

724–25, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968); see also

Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L.

Ed. 2d 293 (1972). We believe a discussion of these cases

is instructive.

InBarber v. Page, supra, 390 U.S. 719, a habeas corpus

petitioner who had been convicted in Oklahoma of

armed robbery claimed that his constitutional right to

confrontation had been violated at his criminal trial

because the evidence establishing his guilt primarily

consisted of former testimony by a witness at a preliminary hearing that was admitted despite the fact that the

witness did not testify in person at trial because he was

not within the jurisdiction of the state but in a federal

prison in Texas. Id., 720. The Supreme Court indicated

that the only effort made by the state to obtain the

witness’ presence at trial was ‘‘to ascertain that he was

in a federal prison outside Oklahoma.’’ Id., 723. The

court recognized that ‘‘various courts and commentators have heretofore assumed that the mere absence

of a witness from the jurisdiction was sufficient ground

for dispensing with confrontation on the theory that it

is impossible to compel his attendance, because the

process of the trial [c]ourt is of no force without the

jurisdiction, and the party desiring his testimony is

therefore helpless.’’ (Footnotes omitted; internal quota-
tion marks omitted.) Id. The Supreme Court, however,

rejected the ‘‘accuracy of that theory,’’ because ‘‘it is

clear that at the present time increased cooperation

between the [s]tates themselves and between the

[s]tates and the [f]ederal [g]overnment has largely

deprived it of any continuing validity in the criminal

law.’’ The court noted that federal courts could issue

appropriate writs at the request of state prosecutorial

authorities and that the United States Bureau of Prisons

had a policy to allow federal prisoners ‘‘to testify in

state court criminal proceedings pursuant to writs of

habeas corpus ad testificandum issued out of state

courts.’’ Id., 724. Because the state in Barber had made

absolutely no effort to obtain the witness’ attendance

at trial by means of legal procedures and processes

available to the state, the Supreme Court held that the

prosecution had failed to establish the incarcerated witness’ unavailability. Id., 725; id. (‘‘[S]o far as this record

reveals, the sole reason why [the witness] was not present to testify in person was because the [s]tate did not

attempt to seek his presence. The right of confrontation

may not be dispensed with so lightly.’’).

Four years later, in Mancusi v. Stubbs, supra, 408

U.S. 204, the Supreme Court discussed its holding in

Barber v. Page, supra, 390 U.S. 719, distinguishing its

holding in the context of a witness who was not simply

in another state but, rather, was a foreign citizen living

outside the United States. Specifically, in Mancusi, the

habeas corpus petitioner had claimed that his murder

conviction following a retrial in Tennessee was

obtained in violation of his confrontation rights and

thus should not have been considered for sentencing

purposes in a subsequent criminal proceeding in New

York. Mancusi v. Stubbs, supra, 205. At the petitioner’s

retrial on the murder charges, the prosecution had

sought to have a key prosecution witness who had

testified at the petitioner’s first trial declared unavailable in order to admit the witness’ former testimony.

To demonstrate unavailability, the state offered the testimony of the witness’ son that the witness, a naturalized

American citizen, had left the country and become a

permanent resident of Sweden. The trial court granted

the state’s request, and the witness’ former testimony

was read to the jury. The petitioner was convicted of

murder a second time. Id., 207–209.

The United States Supreme Court concluded that the

petitioner’s right of confrontation was not violated by

the admission of the witness’ former testimony because

the witness was unavailable. The Supreme Court distinguished the present situation from Barber, in which it

had concluded that the state had failed to demonstrate

reasonable efforts to secure the witness’ attendance by

simply relying on his absence from the boundaries of the

prosecuting state without any effort to use appropriate

federal writs or other legal means. Id., 212. Unlike in

Barber, the witness in Mancusi was not just outside
the state but was a resident of another country. Id.,

211. Whereas, in Barber, the state had available legal

procedures to secure the witness’ attendance, the court

in Mancusi noted that ‘‘[t]here have been . . . no corresponding developments in the area of obtaining witnesses between this country and foreign nations.’’ Id.,

212. The court also noted that, under existing case law

and federal statutes, there was no right to subpoena a

United States citizen residing in a foreign country for

testimony in a state felony trial. Id., 211–12. The

Supreme Court did not indicate that, to meet its burden

of establishing unavailability, the state was required

to make any additional efforts either to coerce or to

incentivize the witness’ return to the United States.

Rather, the court stated: ‘‘Upon discovering that [the

witness] resided in a foreign nation, the [s]tate of Tennessee, so far as this record shows, was powerless to

compel his attendance at the second trial, either

through its own process or through established procedures depending on the voluntary assistance of another

government.’’21 Id., 212.

As observed by the Supreme Court of California in

discussing the Mancusi holding: ‘‘Subsequent to Mancusi, the Supreme Court stated in Ohio v. Roberts, [448

U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), overruled

in part by Crawford v. Washington, 541 U.S. 36, 124 S.

Ct. 1354, 158 L. Ed. 2d 177 (2004)], that ‘if there is

a possibility, albeit remote, that affirmative measures

might produce the declarant, the obligation of good

faith may demand their effectuation.’ . . . This statement did not alter or detract from Mancusi’s analysis

that when the prosecution discovers the desired witness

resides in a foreign nation, and the state is powerless

to obtain the [witness’] attendance, either through its

own process or through established procedures, the

prosecution need do no more to establish the [witness’]

unavailability.’’ (Citation omitted; emphasis altered.)

People v. Herrera, 49 Cal. 4th 613, 625, 232 P.3d 710,

110 Cal. Rptr. 3d 729, cert. denied, 562 U.S. 942, 131 S.

Ct. 361, 178 L. Ed. 2d 233 (2010). We agree with this

assessment.22

Under existing United States Supreme Court precedent and precedents of other jurisdictions, for purposes

of establishing unavailability, it is sufficient for the state

to demonstrate that a foreign national is outside of any

reasonable legal means to compel attendance, provided

that the state makes inquiry, either itself or through

a reliable third party, as to whether the witness will

voluntarily return to the jurisdiction for trial. See Mancusi v. Stubbs, supra, 408 U.S. 204; see also Commonwealth v. Hunt, 38 Mass. App. 291, 295, 647 N.E.2d

433 (relying on Mancusi for proposition that ‘‘[w]hen

a witness is outside of the borders of the United States

and declines to honor a request to appear as a witness,

the unavailability of that witness has been conceded

because a [s]tate of the United States has no authority
to compel a resident of a foreign country to attend a

trial here’’), review denied, 420 Mass. 1103, 651 N.E.2d

409 (1995). We agree with the defendant that the state

does not meet its burden of demonstrating due diligence

to procure the attendance of a witness for trial simply

by establishing that the witness is a noncitizen who is

not in the United States and outside the state’s subpoena

powers. Rather, the state has a duty to make some

effort to discern whether the witness might voluntarily

appear. See Barber v. Page, supra, 390 U.S. 724 (noting

that ‘‘possibility of a refusal is not the equivalent of

asking and receiving a rebuff’’ (internal quotation marks

omitted)).

We now turn to the present case, in which the record

reflects that the state’s efforts to procure B’s attendance

at trial were neither comprehensive nor exhaustive.

That, however, is not the standard that we must apply.

Rather, the question is whether, in light of all the circumstances known, the state acted in good faith and with

due diligence to procure B’s attendance. Our plenary

review of the record, viewed in light of the relevant

legal precedent we have discussed, leads us to conclude

that the court properly concluded that B was unavailable for both evidentiary and constitutional purposes.

We begin by noting that all four factors of the nonexhaustive test cited to and utilized by our Supreme Court

in Lebrick favor the defendant’s position that the state

was required to make all reasonable and good faith

efforts to procure B’s attendance at trial. See State v.

Lebrick, supra, 334 Conn. 511–12. First, B was a crucial

witness for the state because she was the sole eyewitness to the events at issue. Second, the defendant was

charged with extremely serious crimes, including murder and attempted murder. Third, as one of the victims

of the defendant’s crimes, B had a special reason to

favor the prosecution in order to obtain justice for herself and her close friend, N. Finally, if B had left the

country prior to the state’s securing her deposition testimony, something that the state took efforts to ensure

did not happen, it is reasonable to presume that the

state would have exhausted available efforts to secure

her attendance at trial. Nonetheless, the defendant has

not provided this court with persuasive legal authority

that reasonable and good faith efforts under the circumstances presented necessarily required the state to take

any additional steps beyond those that it pursued.

The record shows that the state was aware of B’s

whereabouts and her immigration status and had kept in

contact with her through Peche throughout the pretrial

proceedings. It was aware of her desire to return to

Guatemala as reflected in its motion to advance the

trial date and to notice her deposition. After she left

the country, Peche maintained contact with B and contacted her at the request of the state to inquire if she

would be willing to return for the trial. The most recent
contact was three days prior to Peche testifying, at

which point she testified that B remained in Guatemala

and, although interested in the outcome of the trial,

refused to return to testify. The court found Peche’s

testimony to be credible.

It is reasonable to infer from the record before the

court that, in the absence of some legal means to compel

B’s attendance, it was highly unlikely that any additional efforts on the part of the state would have been

successful in convincing B to return voluntarily. She

could no longer do the work she had been doing in the

United States because of her injuries, and she needed

to be in Guatemala both to obtain the support of her

family and to take care of her children. Furthermore,

it is well settled that the state need not exhaust all

possibilities in order to satisfy its burden of establishing

the unavailability of a witness, and ‘‘[t]he law does not

require the doing of a futile act. Thus, if no possibility of

procuring the witness exists . . . ‘good faith’ demands

nothing of the prosecution.’’ Ohio v. Roberts, supra, 448

U.S. 74. Accordingly, we are not convinced that the

state was required to expend any and all resources

available to it to eliminate the obvious and complex

challenges posed by B’s immigration status or to extend

logistical and financial incentives to induce her return

to Connecticut. All indications were that such efforts

would have been fruitless.

We conclude that, in light of B’s status as a foreign

citizen located outside the United States, with no indication in the record or argument by the defendant that

the state had available any legal means to coerce her

return or the cooperation of her home country, and,

under the totality of the circumstances presented, the

state made sufficient efforts in this case, including discerning whether she would return voluntarily, to establish B’s unavailability.

To the extent that the defendant makes the additional

claim that, even if the witness were properly found to

be unavailable, admission of the deposition transcript

was nonetheless violative of his confrontation rights

because he did not have an adequate opportunity to

cross-examine B at the time her deposition was taken,

we summarily reject that claim. ‘‘The central concern

of the [c]onfrontation [c]lause is to ensure the reliability

of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. . . . The right

of confrontation includes (1) the physical presence of

the witness, (2) the administration of an oath to impress

upon the witness the seriousness of the matter and to

guard against the lie by the possibility of a penalty for

perjury, (3) cross-examination of the witness to aid in

the discovery of truth, and (4) the opportunity for the

jury to observe the demeanor of the witness in making

his statement, thus aiding the jury in assessing his credi-
bility.’’ (Citation omitted; internal quotation marks omitted.) State v. Lebrick, supra, 334 Conn. 510.

As argued by the state, we believe that the circumstances of B’s deposition testimony reflect that the

defendant had an unfettered opportunity to confront

B that satisfied all the aforementioned elements. B’s

deposition was taken under agreed upon parameters,

in court, under oath, subject to the penalty of perjury,

and with the direct supervision of a judge. The deposition was videotaped and thus reflected B’s demeanor

while answering questions. The trial court did nothing

to restrict the defendant’s cross-examination of B about

her direct examination, and the state never objected to

a single question or avenue of inquiry. Although the

record reflects that the defendant chose not to use a

potential prior inconsistent statement of B during his

cross-examination, he did so with the understanding

that he would be permitted to use any impeachment

evidence available in the event that the deposition was

admitted at trial due to B’s unavailability. To the extent

that any impeachment evidence existed, however, the

defendant declined to present it when he was given an

opportunity to do so at trial.

Finally, we agree with the state that any potential

that B’s examination at trial might have differed from

her deposition testimony or that the defendant might

later have become privy to additional information to

utilize during his cross-examination is speculative and

not a basis to conclude that his rights of confrontation

were violated. See State v. Crump, 43 Conn. App. 252,

264, 683 A.2d 402 (‘‘[There is] no authority, under either

[the federal or state] constitution, for the proposition

that any particular type of cross-examination, as to

duration or content, is a requirement that must be satisfied before that prior testimony may be admissible.

Neither the state nor federal guarantees of the right of

confrontation require that a witness be present at trial

for an actual cross-examination in order to admit prior

testimony given under oath. . . . The test is the opportunity for a full and complete cross-examination rather

than the use made of that opportunity.’’ (Internal quotation marks omitted.)), cert. denied, 239 Conn. 941, 684

A.2d 712 (1996).

For the foregoing reasons, we reject the defendant’s

claim that the court improperly admitted B’s prior deposition testimony into evidence in violation of our rules

of evidence and his constitutional rights to confrontation and due process.

II

The defendant also claims that his dual conviction

of attempted murder and assault in the first degree,

each of which was factually predicated on his having

stabbed B, violated the constitutional prohibition

against double jeopardy because, as a result of the
court’s having permitted his conviction of both charges

to stand, he effectively has been punished twice on

the same evidence for the same offense. Although the

defendant acknowledges that this claim was never

raised before the trial court and, thus, is unpreserved, he

nevertheless seeks appellate review pursuant to State

v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),

as modified in In re Yasiel R., 317 Conn. 773, 781,

120 A.3d 1188 (2015).23 We conclude that the claim is

reviewable under Golding because it is of constitutional

magnitude and the record is adequate for review. We

conclude, however, that the defendant cannot demonstrate the existence of a constitutional violation, and,

thus, his claim fails under the third prong of the Golding

analysis.24

‘‘The double jeopardy clause of the fifth amendment

to the United States constitution provides: [N]or shall

any person be subject for the same offense to be twice

put in jeopardy of life or limb . . . . This constitutional

provision is applicable to the states through the due

process clause of the fourteenth amendment. . . . The

Connecticut constitution provides coextensive protection, with the federal constitution, against double jeopardy. . . .25 This constitutional guarantee serves three

separate functions: (1) It protects against a second prosecution for the same offense after acquittal. [2] It protects against a second prosecution for the same offense

after conviction. [3] And it protects against multiple

punishments for the same offense [in a single trial].’’

(Citations omitted; footnote added; footnote omitted;

internal quotation marks omitted.) State v. Ferguson,

260 Conn. 339, 360–61, 796 A.2d 1118 (2002). In the

present appeal, the defendant’s claim implicates the

last of these three functions.

‘‘The double jeopardy analysis in the context of a

single trial is a two part 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. . . . With respect to cumulative sentences imposed in a single trial, the [d]ouble

[j]eopardy [c]lause does no more than prevent the sentencing court from prescribing greater punishment than

the legislature intended. . . . [T]he role of the constitutional guarantee [against double jeopardy] is limited to

assuring that the court does not exceed its legislative

authorization by imposing multiple punishments for the

same offense. . . . On appeal, the defendant bears the

burden of proving that the prosecutions are for the same

offense in law and fact.’’ (Citations omitted; emphasis

added; internal quotation marks omitted.) Id., 361.

With respect to the first part of this two part process,

‘‘it is not uncommon that we look to the evidence at trial

and to the state’s theory of the case . . . in addition

to the information against the defendant, as amplified
by the bill of particulars. . . . If it is determined that

the charges arise out of the same act or transaction,

then the court proceeds to [part two of the analysis],

where it must be determined whether the charged

crimes are the same offense. . . . At this second step,

we [t]raditionally . . . have applied the Blockburger

test26 to determine whether two statutes criminalize

the same offense, thus placing a defendant prosecuted

under both statutes in double jeopardy: [W]here the

same act or transaction constitutes a violation of two

distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one,

is whether each provision requires proof of a fact [that]

the other does not.27 . . . In applying the Blockburger

test, we look only to the information and bill of particulars—as opposed to the evidence presented at trial—

to determine what constitutes a lesser included offense

of the offense charged.’’ (Citations omitted; footnotes

added; internal quotation marks omitted.) State v. Porter, 328 Conn. 648, 662, 182 A.3d 625 (2018).28 Stated

differently, only ‘‘[i]f the elements of one offense as

defined by the statute include the elements of a lesser

offense; or if one offense is merely nominally distinct

from the other’’ will double jeopardy attach. State v.

McCall, 187 Conn. 73, 91, 444 A.2d 896 (1982).

The state does not dispute seriously the defendant’s

assertion that his conviction of both counts arose from

the same act or transaction.29 As the defendant correctly

notes, with respect to the charges of attempted murder

and assault in the first degree, the information alleged

that those crimes involved the same victim, B, and had

occurred on the same date, at the same time and at the

same location. For purposes of our analysis, we will

assume without deciding that the first step of the double

jeopardy analysis is met and proceed directly to the

second step of the analysis to determine if the charged

crimes each contain a statutory element that the other

does not. The state asserts that they do and cites to

State v. Sharpe, 195 Conn. 651, 655, 491 A.2d 345 (1985),

as controlling precedent holding that punishment for

both assault in the first degree and attempted murder

in the same prosecution does not violate double jeopardy. We agree with the state.

We begin by comparing the statutory elements of

attempted murder and assault in the first degree to

determine if each offense contains an element not contained in the other. Section 53a-49 provides in relevant

part: ‘‘(a) A person is guilty of an attempt to commit a

crime if, acting with the kind of mental state required

for commission of the crime, he . . . (2) intentionally

does . . . anything . . . constituting a substantial

step in a course of conduct planned to culminate in

his commission of the crime. . . .’’ Section 53a-54a (a)

provides in relevant part: ‘‘A person is guilty of murder

when, with intent to cause the death of another person,

he causes the death of such person . . . .’’ Accordingly,
‘‘[a] conviction for attempted murder requires proof

of intentional conduct constituting a substantial step

toward intentionally causing the death of another person.’’ State v. Sharpe, supra, 195 Conn. 655.

By comparison, § 53a-59 (a) provides in relevant part:

‘‘A person is guilty of assault in the first degree when: (1)

With intent to cause serious physical injury to another

person, he causes such injury to such person or to a

third person by means of a . . . dangerous instrument

. . . .’’ Looking at the elements of the two crimes,

attempted murder requires proof that the defendant

intended to cause the death of the victim, which is not

an element of assault in the first degree, which requires

only the intent to cause serious physical injury. Conviction for assault in the first degree requires proof that

the defendant (1) seriously injured the victim (2) with

a dangerous instrument. The state is not required to

prove either of those elements to obtain a conviction

for attempted murder. Mindful that a Blockburger analysis is technical in nature in that it requires us to focus

only on the statutory elements and not on the evidence

adduced at trial to prove those elements, we are compelled to conclude that attempted murder and assault

in the first degree are not the same offense for purposes

of double jeopardy.

Our conclusion is consistent with and controlled by

our Supreme Court’s decision in State v. Sharpe, supra,

195 Conn. 651. In Sharpe, the victim was in a vehicle,

backing out of the driveway of his house, when the

defendant approached the front of the vehicle, carrying

a gun. Id., 653. He first fired a shot into the front of the

vehicle that hit the victim, and then moved around to

the driver’s side of the car and fired five or six additional

shots, further injuring the victim. Id., 653–54. The defendant was charged with both attempted murder in violation of §§ 53a-49 and 53a-54a (a) and with assault in

the first degree in violation of § 53a-59 (a) (1), each

predicated on his shooting of the victim. Id., 652. The

court denied the defendant’s pretrial motion that sought

the dismissal of either the attempted murder charge or

the assault charge on the grounds that they rose out of

the same transaction and, thus, were ‘‘multiplicitous’’

and violated his right to be free from double jeopardy.

Id., 654, 656 n.3.

On appeal, our Supreme Court rejected the defendant’s double jeopardy claim, holding that it failed

under theBlockburger test. Id., 655–56. The court stated:

‘‘A conviction for attempted murder requires proof of

intentional conduct constituting a substantial step

toward intentionally causing the death of another person. . . . No showing of actual injury is required. Conversely, a conviction for assault in the first degree

requires proof that the defendant actually caused serious physical injury to another person. No showing of

intent to cause death is necessary. Therefore, each
offense requires proof of a fact which the other does

not. Consequently, the statutory violations charged,

attempted murder and assault in the first degree, are

not the same offense for double jeopardy purposes.

This conclusion disposes of the defendant’s argument

that he was subjected to double jeopardy by being punished twice upon the same evidence and essentially the

same offense. He was not twice punished for the same

crime.’’ (Citation omitted; footnote omitted.) Id.

This court previously has relied on the holding in

Sharpe to reject a claim that charges of attempted murder and assault in the first degree by means of a dangerous instrument with respect to the actions of a single

defendant against a single victim in the same transaction are the same offense for double jeopardy purposes

under the Blockburger test. See State v. Glover, 40 Conn.

App. 387, 391–92, 671 A.2d 384, cert. denied, 236 Conn.

918, 673 A.2d 1145 (1996). In Glover, as in Sharpe and

the present case, ‘‘the information charged the defendant with committing both crimes in the same place at

the same time.’’ Id., 391.

Although the defendant attempts to distinguish the

outcome in Sharpe from the present action, his arguments are unavailing. Sharpe remains good law and is

binding authority under the facts of the present case

as it pertains to the defendant’s double jeopardy claim.

The defendant argues that the holding in Sharpe ‘‘cannot be baldly applied to every double jeopardy claim

premised on concomitant convictions of attempted

murder and assault in the first degree.’’ In support of

this argument, the defendant attempts to attach far too

great significance to language from another case that

relied on Sharpe, suggesting that the outcome of the

Blockburger analysis in that case turned on the defendant’s concession that the attempted murder and

assault were charged as separate offenses rather than

as ‘‘offenses standing in a greater-lesser relationship.’’

State v. Gilchrist, 24 Conn. App. 624, 629, 591 A.2d 131,

cert. denied, 219 Conn. 905, 593 A.2d 131 (1991); see

also State v. McCall, 187 Conn. 73, 91, 444 A.2d 896

(1982) (similar concession made by defendant). The

defendant clarifies that, in the present case, he is

expressly asserting that ‘‘the [two] charges . . . stand

in the relation of greater to lesser included offenses.’’

By definition, however, ‘‘[a] lesser included offense

is one that does not require proof of elements beyond

those required by the greater offense.’’ (Internal quotation marks omitted.) State v. Johnson, 316 Conn. 34,

44, 111 A.3d 447 (2015). Because, as we already have

explained, a conviction for assault in the first degree

requires proof of actual serious physical injury whereas

attempted murder requires no such proof, by definition,

assault in the first degree cannot be a lesser included

offense of attempted murder.

Furthermore, the defendant has pointed us to nothing
in the present record that would support the novel legal

theory he advances, which stands counter to traditional

Blockburger analysis. The operative information in this

case charged attempted murder and assault in the first

degree by way of two separate and distinct counts.

Despite the allegations that the crimes were committed

contemporaneously, nothing in the language of those

counts reasonably can be construed as evincing any

intent on the part of the state to charge the defendant

in the alternative. The counts were not pursued by the

state at trial in an alternative manner nor was such a

theory discussed in closing argument. No instruction

was requested by the defendant, nor was any instruction

given to the jury, indicating that it should consider the

charges only ‘‘as standing in a greater-lesser relationship.’’30 Although certainly not dispositive by itself, the

defendant’s failure to raise the double jeopardy claim

that he now advances either by way of a pretrial motion

to dismiss or postconviction belies any implication that

the double jeopardy claim was obvious on the face of

the information or the manner in which the case was

charged.

Because we have concluded that attempted murder

and assault in the first degree are not the same offense

under a traditional Blockburger analysis, the defendant

can only prevail on his double jeopardy claim by making

a showing that the legislature intended to preclude multiple punishments for those crimes. The defendant, who

has the burden of proof on that issue; State v. Alvaro

F., 291 Conn. 1, 13, 966 A.2d 712, cert. denied, 558 U.S.

882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009); has

advanced nothing from which to discern any legislative

intent to preclude prosecution of a criminal defendant

for both assault in the first degree and attempted murder. The defendant has not directed us to any statutory

language or other evidence from which we could discern a clear legislative intent to preclude a conviction

as occurred in the present case. Accordingly, the defendant’s double jeopardy claim fails.

The judgment is affirmed.

In this opinion the other judges concurred.

* In accordance with our policy of protecting the privacy interests of the

victims of the crime of risk of injury to a child, we decline to identify the

defendant or others through whom the victim’s identity may be ascertained.

See General Statutes § 54-86e.

** The listing of judges reflects their seniority status on this court as of

the date of oral argument.

1 For clarity, we discuss the defendant’s claims in the reverse order in

which they were briefed.

2

In addition to being the father of S, the defendant was the father of three

other children from relationships with two different women.

3 B testified that she remembered asking the defendant what he was doing

but that she had no further memories of what transpired immediately after

she came upon the defendant and N. Her next recollection of events was

being on the floor with the defendant thrusting something into her lower

back.

4 One of the landlords testified at trial that she was awoken at about 2

a.m. by noises and heard B saying, ‘‘Oscar, no, she’s my friend.’’ She also

reported later hearing the shower running.
5 According to the autopsy report admitted at trial, N was stabbed seven

times in the neck. Her carotid artery was completely severed, causing her

death. The toxicology report showed that she had a blood alcohol content

of 0.142.

6 B suffered substantial injuries to both her neck and abdomen. Many of

the muscles and nerves on the left side of her neck were completely severed.

Her abdominal wound ran from her right kidney past her spine and into

her liver. When she arrived at the hospital, she had lost between 40 and 50

percent of her blood and was in shock. According to her treating physician,

she had a number of severe defensive wounds on both of her hands. The

doctor described her left thumb as ‘‘dangling’’ and her right pinkie finger

as having been ‘‘nearly amputated . . . .’’

7 Norris had removed a photograph of the defendant and S from the

bedroom of the apartment, which was used as part of the information

provided for the Amber Alert.

8 The police observed that a chair also had been placed over N’s body.

9 We note that, although the defendant filed a pretrial motion to dismiss,

he did not raise double jeopardy as an issue in that motion or in his later

oral motions for a judgment of acquittal.

10 The state charged the defendant under the situational prong of the risk

of injury statute. Its theory with respect to that charge was that, given the

bloody and violent incident that transpired in the living area of the small

apartment, there was a grave risk that, if S had awoken and walked out

into the room, she would have been exposed to and potentially endangered

by the defendant’s violent conduct. In addition, by later removing S from

the apartment, the defendant necessarily would have carried her through

the bloody crime scene, exposing her to the risk of psychic harm.

11 According to the defendant’s testimony, N and B were both intoxicated

when they picked him up from work. When they returned to the Bridgeport

apartment after he visited his son, B had initiated the plan to go out and,

although N asked him to join them, he chose to stay home to watch S. The

defendant testified that, when N and B returned from the club, he declined

N’s invitation to drink more beer with them, choosing to listen to music on

his phone in the bedroom. He claimed that, at some point, N called him

into the living room and told him that B had accused him of breaking her

cell phone. He claimed that the three began to argue. When the argument

began ‘‘escalating,’’ N purportedly grabbed his hand to take him to the

bathroom to speak to him away from B, at which point she referred to B

as a slut and accused B of being ungrateful for them allowing her to move

in with them. B allegedly overheard this, including the reference to her

being a slut, and responded that at least she was single whereas N was also

a slut despite living with the defendant. Although the defendant stated that

he construed B’s statement as a confirmation of his belief that N was cheating

on him, he claimed that he saw no point in discussing this with N at that

time because she was intoxicated and, instead, he chose to return to the

bedroom and resume listening to music.

At some point, he claimed, he heard bottles crashing in the living room,

and, when he came out of the bedroom to investigate, he found N ‘‘holding

a knife, she was all bloody—and she was leaning on the stove holding a

knife . . . .’’ According to the defendant, B was standing by the refrigerator

also covered in blood. Despite this purported evidence of a brutal fight

between the two women, the defendant maintained that he never heard any

shouts or screams, only the sound of the bottles crashing. According to the

defendant, he moved toward N to take away the knife but slipped in blood

that was all over the floor. When he fell to the floor, B supposedly first

struck him in the back of the head with a plate or bottle, and then ‘‘threw

herself on top’’ of him. He claims that it was at this point that he realized

that B also had a knife. He allegedly was able to get the knife from B, who

continued to hit him in an effort to get the knife back. According to the

defendant, he was eventually able to repel B, and, when he got to his feet,

he saw N lying on the floor, unresponsive. When he returned his attention

back to B, she also was on the floor and unresponsive. At that time, the

defendant claimed, he looked in on S, who was still sleeping. He claimed

that, when he returned to the living room and found the women still unconscious, he contemplated calling the police but feared they would blame him.

Instead, he decided to take a shower, so that his daughter would not have

to see him covered in blood when he woke her up, and thereafter fled the

apartment. In sum, the defendant denied ever stabbing N, or intentionally

stabbing B, insisting that B had ‘‘injured herself when she was attacking

[him], when [he] had a knife in [his] hand.’’
12 Specifically, the court sentenced the defendant as follows: fifty years

for the murder conviction with a concurrent twenty year sentence on the

attempted murder count; twenty years for the assault conviction, five of

which was a mandatory minimum, to run consecutively to the other sentences; and an additional five year consecutive sentence on the risk of

injury count.

13 The state contends that we should decline to review this claim because,

although the defendant challenged the admission of B’s deposition at trial,

he did so on a different basis than the one advanced on appeal, and, therefore,

the defendant’s claim is unpreserved. According to the state, the defendant’s

objection at trial was limited to the state’s alleged failure to establish that

B actually was in Guatemala. Our review of the trial transcript convinces

us, however, that the defendant’s argument was not so narrowly confined.

Part of the objection raised by the defendant at trial more broadly encompassed the state’s general failure to exercise due diligence in securing B’s

trial testimony, which certainly included allegedly doing nothing to verify

her whereabouts. For example, part of the defendant’s argument to the trial

court was that, ‘‘[w]hen the state’s attorney’s office wants individuals to

come back and testify, as the court knows, they can be fairly persuasive

. . . .’’ We construe this as an argument that the state could have done

more to entice B to return voluntarily. Accordingly, we are satisfied that

the present claim was adequately preserved for appellate review.

14 The court concluded that the state lacked the legal authority to subpoena

an individual residing in Guatemala, and the defendant does not challenge

this determination on appeal.

15 The state responded as follows to the defendant’s argument: ‘‘[W]e

actually moved for deposition because we had a reasonable belief, but

nothing firm, that she might not have been—I don’t—I never saw any documents, is what I’m saying—that she might not have been a citizen of the

United States. In which case, there would have been a possibility that she

could have been made unavailable by some other process. Also, there’s no

obligation for a witness to stay in the country. You know, unless we secured

a material witness warrant against them, and—and lodged them in jail. And

that would be the—the only way that we would do that. And that’s an

unusual procedure.’’

16 Section 8-6 of the Connecticut Code of Evidence provides in relevant

part:

‘‘The following are not excluded by the hearsay rule if the declarant is

unavailable as a witness:

‘‘(1) Former Testimony. Testimony given as a witness at another hearing

of the same or a different proceeding, provided (A) the issues in the former

hearing are the same or substantially similar to those in the hearing in which

the testimony is being offered, and (B) the party against whom the testimony

is now offered had an opportunity to develop the testimony in the former

hearing. . . .’’

The commentary to § 8-6 provides in relevant part: ‘‘The proponent of

evidence offered under Section 8-6 carries the burden of proving the declarant’s unavailability. . . . To satisfy this burden, the proponent must show

that a good faith, genuine effort was made to procure the declarant’s attendance by process or other reasonable means. . . . [S]ubstantial diligence

is required . . . but the proponent is not required to do everything conceivable to secure the witness’ presence. . . . A trial court is not precluded

from relying on the representations of counsel regarding efforts made to

procure the witness’ attendance at trial if those representations are based

on counsel’s personal knowledge. . . .’’ (Citations omitted; internal quotation marks omitted.) Conn. Code Evid. § 8-6, commentary.

17 At the time B was deposed, the parties had agreed that B’s deposition

testimony would be subject to impeachment at trial to the same degree as

if it were live testimony. The state brought this to the trial court’s attention

at the time it ruled on the admissibility of B’s videotaped deposition, stating

as follows:

‘‘[The Prosecutor]: I just would note in passing, for the record, that, under

[§] 8-8 of the Code of Evidence, that impeachment and supporting credibility

of a hearsay declarant may be done to the same extent as if it was live

testimony. So that, for example, inconsistent statements—

‘‘The Court: Inconsistent statement.

‘‘[The Prosecutor]: —and extrinsic impeachment for bias, motive, interest

in the outcome of the case, et cetera, can still be introduced against her; even

though there’s no opportunity to confront her with it, it can be introduced.

‘‘The Court: For the jury’s consideration of that witness.
‘‘[The Prosecutor]: Yes.’’

The defendant did not indicate to the court at that time that he intended

to introduce any impeachment evidence and expressly declined an invitation

to do so after the videotaped testimony was played for the jury.

18 In Lebrick, our Supreme Court instructed that courts in this state, in

considering whether a witness is ‘‘unavailable’’ for purposes of the former

testimony exception to the hearsay rule under our Code of Evidence, should

follow the definition of ‘‘unavailable’’ used by federal courts in the Federal

Rules of Evidence. State v. Lebrick, supra, 334 Conn. 507.

19 The state knew that the witness was a New York City resident, but

when it tried to contact her at about the time that jury selection had begun

to secure her testimony at trial, it was unable to reach her at her last known

address and telephone number. State v. Lebrick, supra, 334 Conn. 500–501.

An investigator for the state unsuccessfully searched several state and federal databases for a current address or phone number, eventually discovering

two addresses associated with the witness in New York and several phone

numbers. Id. The investigator called the phone numbers, ‘‘but two were

not in service, and one was not receiving phone calls.’’ Id., 501. The state

nonetheless prepared an interstate summons that was sent by e-mail to the

Kings County District Attorney’s Office in New York City. Id. The e-mail

contained the addresses the state had discovered in its electronic search

as well as the last known address of the witness’ mother in Brooklyn, New

York. Id. An investigator with the district attorney’s office attempted to

serve the summons at the addresses provided; he was not tasked with

conducting an independent investigation into the witness’ whereabouts and

did not undertake such a task on his own initiative. Id. The investigator

visited the addresses he was provided, including twice visiting the address

for the witness’ mother but was unable to locate the witness. Id., 501–502.

He also never encountered anyone whom he was able to question regarding

the witness’ location. Id., 502. His attempts to contact the witness by phone

at the numbers provided by the state also proved unsuccessful. Id., 501–502.

20 We are cognizant that the court in Morquecho applied the now defunct

abuse of discretion standard; see State v. Morquecho, supra, 138 Conn.

App. 862; rather than the more exacting plenary review established by our

Supreme Court in Lebrick. See State v. Lebrick, supra, 334 Conn. 507. Nonetheless, the court’s discussion in Morquecho remains instructive in evaluating

the state’s efforts in the present case.

21 The Supreme Court in Mancusi granted certiorari from a ruling by the

United States Court of Appeals for the Second Circuit. Mancusi v. Stubbs,

404 U.S. 1014, 92 S. Ct. 671, 30 L. Ed. 2d 661 (1972). The Second Circuit

had stated that the witness’ absence from the United States was not ‘‘per

se a sufficient reason to broaden the exception to the [c]onfrontation [c]lause

allowing the admission of prior testimony of a presently unavailable witness.

Although there is a much greater chance that it will not be possible to bring

before the court a witness residing abroad, the possibility of a refusal is

not the equivalent of asking and receiving a rebuff.’’ (Internal quotation

marks omitted.) United States ex rel. Stubbs v. Mancusi, 442 F.2d 561, 563

(2d Cir. 1971), rev’d, Mancusi v. Stubbs, 408 U.S. 204, 92 S. Ct. 2308, 33 L.

Ed. 2d 293 (1972). The Second Circuit’s conclusion that the state had failed

to meet its burden of establishing due diligence appears to have turned on

the fact that the record contained no evidence that the state ever asked the

witness whether he would be willing to voluntarily return and testify. In

reversing the judgment of the Second Circuit, the Supreme Court’s decision

implicitly rejected the Second Circuit’s reasoning that, to establish due

diligence in procuring the attendance of a witness located outside of the

United States, a state cannot solely rely on the witness’ absence but must,

at a minimum, also produce evidence demonstrating that it sought the

witness’ voluntary attendance and that that request was rejected. Nevertheless, in the present case, there was testimony presented at trial that the

state had asked Peche to determine on its behalf whether B would be willing

to return and that B had indicated that she would not be willing to return

to the jurisdiction. Accordingly, even the more exacting standard applied

by the Second Circuit would be met in the present case.

22 We note that, since Mancusi was decided, relevant federal statutes have

been amended and now permit a state to seek a subpoena of a United States

citizen residing abroad. See 28 U.S.C. § 1783 (a) (2018). These changes do

not affect Mancusi’s holding, however, with respect to a foreign national,

such as in the present case. In the absence of a treaty or federal statute, a

foreign citizen is simply outside the subpoena power of the state.

23 Golding provides that ‘‘a defendant can prevail on a claim of constitu-
tional error not preserved at trial only if all of the following conditions are

met: (1) the record is adequate to review the alleged claim of error; (2) the

claim is of constitutional magnitude alleging the violation of a fundamental

right; (3) the alleged constitutional violation . . . exists and . . . deprived

the defendant of a fair trial; and (4) if subject to harmless error analysis,

the state has failed to demonstrate harmlessness of the alleged constitutional

violation beyond a reasonable doubt.’’ (Emphasis in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40; see also In re Yasiel R.,

supra, 317 Conn. 781 (eliminating Golding’s use of ‘‘clearly’’ in describing

requirements under third prong of test).

24 Although, in its appellate brief, the state primarily responds to the merits

of the defendant’s double jeopardy claim, in a lengthy footnote at the end

of its double jeopardy analysis, the state also argues that we should treat

the defendant’s failure to raise his double jeopardy claim at trial as an implied

waiver of any double jeopardy protection. In support of that argument, the

state notes that appellate courts in this state have relied on waiver to resolve

unpreserved double jeopardy claims arising in the context of a successive

prosecution; see, e.g., State v. Ledbetter, 240 Conn. 317, 325–26, 692 A.2d

713 (1997); State v. Belcher, 51 Conn. App. 117, 122–23, 721 A.2d 899 (1998);

but nonetheless have afforded Golding review to unpreserved double jeopardy claims arising in the course of a single trial without providing any

analysis to explain this apparently disparate treatment of similar claims.

See, e.g., State v. Chicano, 216 Conn. 699, 704, 584 A.2d 425 (1990), overruled

in part on other grounds by State v. Polanco, 308 Conn. 242, 61 A.3d 1084

(2013); see also State v. Barber, 64 Conn. App. 659, 671, 781 A.2d 464 (‘‘[i]f

double jeopardy claims arising in the context of a single trial are raised for

the first time on appeal, these claims are reviewable’’ (internal quotation

marks omitted)), cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001).

The state also argues in the same footnote that the defendant’s failure to

raise his double jeopardy concern at trial unfairly prejudiced the state and

potentially resulted in an inadequate record for review on appeal because,

if the state had known of the double jeopardy claim at trial, it might have

marshaled the evidence differently or made additional arguments to the

jury. Specifically, the state notes that, given the multiple injuries to B, it

could have argued that ‘‘the defendant initially attacked B with an intent

to inflict serious physical injury and then, prior to thrusting an object in

her neck after she came to on the floor and begged for her life, engaged in

a separate act of attempted murder.’’

As discussed in this part of the opinion, the defendant’s claim fails on its

merits under established precedent and, therefore, he cannot demonstrate

the existence of a constitutional violation as alleged on the basis of the

facts in the record on which he relies. Consequently, we elect not to resolve

these alternative arguments advanced by the state.

25 The Connecticut constitution does not contain an express prohibition

against double jeopardy, but the due process guarantees of article first,

§ 8, of the constitution of Connecticut have been interpreted to include a

protection against double jeopardy. See State v. Michael J., 274 Conn. 321,

349–50, 875 A.2d 510 (2005). The scope of this state constitutional protection

consistently has been construed to mirror, rather than to exceed, the protection afforded under the federal constitution. Id.

26 See Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.

Ed. 306 (1932).

27 Both our Supreme Court and the United States Supreme Court have

clarified that the Blockburger test, which also is referred to as the ‘‘sameelements’’ test, ‘‘inquires whether each offense contains an element not

contained in the other; if not, they are the ‘same offence’ and double jeopardy

bars additional punishment and successive prosecution.’’ (Emphasis added.)

United States v. Dixon, 509 U.S. 688, 696, 113 S. Ct. 2849, 125 L. Ed. 2d 556

(1993). In State v. Bernacki, 307 Conn. 1, 21–22, 52 A.3d 605 (2012), cert.

denied, 569 U.S. 918, 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013), our Supreme

Court emphasized that it is irrelevant for purposes of a Blockburger analysis

‘‘that the state may have relied on the same evidence to prove that the

elements of both statutes were satisfied’’; id., 21; and that proper application

of the Blockburger test looks at whether ‘‘each statute contains a different

statutory element requiring proof of a fact that the other does not . . . .’’

(Emphasis added.) Id., 22. The court further noted that ‘‘emphasis on the

conduct at issue, rather than purely on the statutory language and charging

instruments, is not consistent with our well established case law holding

that the Blockburger analysis is theoretical in nature and not dependent on

the actual evidence adduced at trial.’’ Id., 21 n.16.
28 As our Supreme Court has stated, the Blockburger test is, at its core,

a rule of statutory construction, and ‘‘because it serves as a means of

discerning [legislative] purpose the rule should not be controlling [if], for

example, there is a clear indication of contrary legislative intent. . . . Thus,

the Blockburger test creates only a rebuttable presumption of legislative

intent, [and] the test is not controlling [if] a contrary intent is manifest. . . .

[If] the conclusion reached under Blockburger is that the two crimes do

not constitute the same offense, the burden remains on the defendant to

demonstrate a clear legislative intent to the contrary.’’ (Citations omitted;

internal quotation marks omitted.) State v. Alvaro F., 291 Conn. 1, 12–13,

966 A.2d 712, cert. denied, 558 U.S. 882, 130 S. Ct. 200, 175 L. Ed. 2d 140 (2009).

29 To the extent that the state suggests in a footnote in its brief that the

jury reasonably could have viewed the evidence at trial as supporting a

conclusion that the defendant engaged in separate acts for which separate

punishment would be permissible; see footnote 24 of this opinion; without

additional briefing of the issue, the state’s brief is inadequate to raise any

challenge to whether the defendant’s double jeopardy claim fails under the

‘‘ ‘same act or transaction’ ’’ prong of double jeopardy analysis. See State

v. Ferguson, supra, 260 Conn. 361.

30 The defendant relies on this court’s analysis in State v. Tinsley, 197

Conn. App. 302, 232 A.3d 86, cert. granted, 335 Conn. 927, 234 A.3d 979

(2020), to support his insistence that assault in the first degree should be

treated as a lesser included offense of attempted murder. In Tinsley, the

defendant was convicted of both manslaughter in the first degree and risk

of injury to a child on the basis of his having brutally beaten a fifteen month

old child, who later died of his injuries. Id., 304–306. This court found that

each of those statutes contained an element that the other does not and

thus were not the same offense under a traditional Blockburger analysis.

Id., 323. Nevertheless, the court agreed with the position advanced by the

defendant that the dual convictions still violated double jeopardy if it was

not possible to commit the greater offense in the manner described in the

information without having first committed the lesser offense. Id., 324–25.

The court determined that, ‘‘one cannot cause the death of another in the

manner described in the information, without first inflicting trauma to the

victim’s body, which is an act likely to impair the health of the minor victim.’’

Id., 323. The court in Tinsley held, on the basis of that determination, that

‘‘risk of injury to a child is a lesser included offense and, thus, the same

offense for purposes of double jeopardy, as manslaughter in the first

degree.’’ Id.

To the extent that the defendant asks us to follow the alternative analytical

path utilized by this court in Tinsley, we decline to expand Tinsley’s holding

beyond the precise circumstances of that case. Whereas our Supreme Court’s

analysis in Sharpe is essentially ‘‘on all fours’’ with the present case because

the same statutory crimes were at issue, the court in Tinsley was comparing

simultaneous convictions of charges of risk of injury and manslaughter,

neither of which is implicated in the present case.