
    State of Connecticut v. James Kristy
    (7771)
    Borden, Daly and Norcott, Js.
    Argued November 7, 1989
    decision released January 16, 1990
    
      Vincent J. Dooley, deputy assistant state’s attorney, with whom, on the brief, were Mary Galvin, state’s attorney, and Mark Hurley, deputy assistant state’s attorney, for the appellant (state).
    
      Timothy H. Everett, with whom were Michael R. Sheldon and Christine Curtiss, certified legal intern, and, on the brief, ToddFemow, for the appellee (defendant).
   Norcott, J.

The state appeals, with the permission of the trial court, from the judgment of the court granting the defendant’s motion to dismiss the information on double jeopardy grounds.. On appeal, the state argues that the trial court erred in concluding that the institution of this second prosecution against the defendant violated his constitutional protection against successive prosecutions for the same offense. We find no error.

The following facts are relevant to this appeal. On December 21, 1983, at approximately 9:45 p.m., the defendant, while accompanied by four passengers, was operating a motor vehicle on the Boston Post Road in Milford. The defendant failed to negotiate a turn at the intersection of West Street and the Boston Post Road, and lost control of the vehicle causing it to slide and then collide with a telephone pole and guard rail. It was later determined that the speed of the defendant’s vehicle at the time of the accident was 61.6 miles per hour and that the defendant had been drinking prior to the accident. Two of the passengers died as a result of the crash.

At the first trial, the defendant was charged with two counts of manslaughter in the second degree with a motor vehicle while intoxicated in violation of General Statutes § 53a-56b (a). At the close of the trial, the trial court instructed the jury, at the state’s request, on the purported “lesser included offense” of misconduct with a motor vehicle in violation of General Statutes § 53a-57 (a). The jury subsequently returned a verdict of guilty of two counts of misconduct with a motor vehicle.

Thereafter, the defendant appealed to this court, arguing that because misconduct with a motor vehicle was not a lesser included offense of manslaughter in the second degree with a motor vehicle while intoxicated, his conviction of that crime violated his constitutional right to be apprised of the charges against him. We agreed, reversed the convictions, and remanded the case with direction to render judgment of not guilty to the charge of manslaughter in the second degree with a motor vehicle while intoxicated. See State v. Kristy, 11 Conn. App. 473, 481-85, 528 A.2d 390, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987) (Kristy I).

After our decision in Kristy I, the state charged the defendant with two counts of misconduct with a motor vehicle arising out of this same incident. On April 18, 1988, the defendant filed a motion to dismiss on double jeopardy grounds. On September 20,1988, the defendant entered a plea of guilty to both counts of the information, and the case was continued until October 20, 1988, for a presentence investigation. On that date, the defendant filed a supplemental memorandum in support of his motion to dismiss on double jeopardy grounds dealing primarily with this court’s decision in State v. Lonergan, 16 Conn. App. 358, 548 A.2d 718 (1988), aff’d, 213 Conn. 74, 566 A.2d 677 (1989). Thereafter, on November 15,1988, the state filed a memorandum in opposition to the defendant’s motion to dismiss. On November 23, 1988, the court, Gray, J., heard oral argument on the motion and continued the hearing until January 5,1989, so that the parties could submit additional briefs addressing Lonergan and so that the state could determine whether it would be relying upon the same evidence for the second prosecution.

At the hearing on January 5, 1989, the court reviewed the defendant’s supplemental memorandum and ascertained from the state that it planned to rely upon the same evidence in the second prosecution. The court, relying on our decision in Lonergan, vacated the defendant’s guilty pleas and granted the defendant’s motion to dismiss on double jeopardy grounds. This appeal ensued. The defendant now contends that the Supreme Court’s recent resolution of the appeal in State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), is dis-positive of this case and requires that we affirm the trial court’s action in this case. We agree.

In Lonergan, our Supreme Court adopted the test, initially applied in that case by this court, that in successive prosecutions, “ ‘if the same evidence offered to prove a violation of the offense charged in the first prosecution is the sole evidence offered to prove an element of the offense charged in the second prosecution, then prosecution of the second offense is barred on double jeopardy grounds, regardless of whether either offense requires proof of a fact that the other does not.’ State v. Lonergan, supra, [16 Conn. App. 358,] 368.” State v. Lonergan, supra, 213 Conn. 74, 92. Here, the state concedes, as it did in Lonergan, that the present prosecution arises out of the same transaction as did the prior prosecution and that the state will rely on the same evidence this second time. Nevertheless, it argues that the second prosecution does not violate the double jeopardy protection because Lonergan is distinguishable from this case. The essence of the state’s argument is that in Kristy I, unlike Lonergan, the state obtained a jury conviction, albeit on an erroneous basis, and that conviction was later successfully appealed. Arguing that retrial after a successful appeal of previously litigated matters does not offend double jeopardy rights, the state cites Ball v. United States, 163 U.S. 662,16 S. Ct. 1192, 41 L. Ed. 300 (1896), for the proposition that the successive prosecution here does not involve a double jeopardy analysis. We are not persuaded by this argument.

In Kristy I, the acquittal on the charges of manslaughter in the second degree, not the conviction on the erroneously charged misconduct counts, is the proper judgment on which we must focus our attention for the purposes of our double jeopardy analysis. In Kristy I, had the trial court not instructed the jury, at the state’s request, on misconduct with a motor vehicle as a “lesser included offense,” and had the jury acquitted the defendant of manslaughter with a motor vehicle while intoxicated, as it actually did, the state would now be barred under Lonergan from reprosecuting the defendant for misconduct with a motor vehicle. Having obtained an improper conviction because of the érroneous jury charge in Kristy I, the state would enjoy an unjust benefit if we were to allow it to reprosecute the defendant on the same charges in a second trial.

We note that the state correctly draws our attention to a footnote in Kristy I suggesting that there would be no double jeopardy bar to the reprosecution of the defendant for misconduct with a motor vehicle. See Kristy I, supra, 483-84 n.6. This court, of course, did not have the benefit of the Supreme Court’s recent Lonergan decision. In light of that decision, the footnote language in Kristy I to which the state refers, has been superseded by the Supreme Court’s decision in Lonergan.

There is no error.

In this opinion the other judges concurred. 
      
       General Statutes § 53a-56b provides: “manslaughter in the second DEGREE WITH A MOTOR VEHICLE: CLASS C FELONY, (a) A person ÍS guilty of manslaughter in the second degree with a motor vehicle when, while operating a motor vehicle under the influence of intoxicating liquor or any drug or both, he causes the death of another person as a consequence of the effect of such liquor or drug.”
     
      
       General Statutes § 53a-B7 provides: “misconduct with a motor vehicle: class d felony, (a) A person is guilty of misconduct with a motor vehicle when, with criminal negligence in the operation of a motor vehicle, he causes the death of another person.”
     
      
       The court noted that the state had filed no memorandum.
     
      
       In State v. Lonergan, 213 Conn. 74, 92, 566 A.2d 677 (1989), our Supreme Court, applying this test, held that the prosecution of the defendant for operating a motor vehicle while under the influence of liquor or drugs, which followed his acquittal in a prior trial of the charge of manslaughter in the second degree with a motor vehicle while intoxicated, violated the double jeopardy clause.
     
      
       We note that, at the time of oral argument in this court, the Supreme Court’s decision in State v. Lonergan, 213 Conn. 74, 566 A.2d 677 (1989), had not yet been released. At oral argument, however, the state argued that if affirmed, the Lonergan case would be distinguishable from the present case, but, if reversed, Lonergan would be undistinguishable and dispositive.
     
      
       The case of Ball v. United States, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896), dealt with a fatally defective indictment from which a guilty verdict was obtained. The defendants successfully appealed, and the guilty verdicts were overturned. When the state corrected the defects and reprosecuted the defendants for the same crime, the United States Supreme Court held that the defendants’ double jeopardy rights were not violated because they waived those rights by appealing from the convictions. The state argues that Ball stands for the proposition that whenever a defendant successfully challenges on appeal a jury’s verdict of guilt, on retrial, double jeopardy conditions are not at play.
     