STATE v. ANDRE D. MARTIN, SC 18261

Judicial District of Fairfield at Bridgeport

     Criminal; Double Jeopardy; Did the Defendant's Conviction for Both Attempted Possession of Marijuana and Possession of Marijuana Violate the Constitutional Prohibition Against Double Jeopardy Because, if not for the Intervening Conduct of the Police, There Would have been Only One Offense.  The defendant was convicted of, inter alia, the crimes of attempt to possess one kilogram or more of marijuana with intent to sell in violation of General Statutes §§ 21a-278 (b) and 53a-49, and possession of four ounces or more of marijuana in violation of General Statutes § 21a-179 (b).  The defendant's conviction stemmed from an incident involving the transportation of a package containing marijuana from a freight company in Middletown to a private residence in Bridgeport.  The police, who had intercepted the package and decided to conduct a controlled delivery of it, had removed all but 4.4 ounces of the marijuana in the package, and the remainder of the package was filled so as to approximate its original weight.  Thereafter, the police observed two vehicles, one of which contained the defendant, engage in a concerted effort to transport the package to the residence.  Once the package and the individuals were inside the residence, the police executed a search and seizure warrant.  They discovered the defendant in the living room and the unopened package in the bathroom.  The defendant was charged with possession of marijuana based on the 4.4 ounces of marijuana that was in the package and attempted possession of marijuana based on the marijuana that been removed from the package by the police.  On appeal, the defendant claimed that his conviction and sentence for both attempted possession of marijuana with intent to sell and possession of marijuana violated his constitutional right against double jeopardy because, if not for the intervening conduct of the police, there would have been only one offense.  The Appellate Court (110 Conn. App. 171) agreed with the defendant.  The court observed that the marijuana that supported the possession charge and the marijuana that supported the charge of attempted possession with intent to sell were part of the same transaction and the same common scheme or plan.  It then held that the action of the police in separating out the marijuana from the package, albeit out of a concern for public safety, nevertheless created two offenses, possession and attempted possession, when only one offense should have arisen; therefore, the defendant's conviction and sentence for both crimes violated the constitutional prohibition against double jeopardy.  Accordingly, because the trial court deemed the attempt charge to be the greater charge and the possession charge to be the lesser charge, the Appellate Court remanded with direction to combine the conviction of attempted possession of one kilogram or more of marijuana with intent to sell with the conviction of possession of four ounces or more of marijuana and to vacate the sentence on the conviction of possession of four ounces or more of marijuana.  In this appeal, the Supreme Court will review the Appellate Court's ruling.