State v. Bernacki
Chief Justice Rehnquist's analysis in his concurrence in the 1993 U.S. Supreme Court case of U.S. v. Dixon applying the 1932 U.S. Supreme Court case of Blockburger v. U.S., is more consistent with Connecticut's contemporary double jeopardy jurisprudence than that of Justice Scalia and was adopted. Gary Bernacki, Sr., found to have firearms in his home while subject to a protective order, was convicted and sentenced for criminal possession of a firearm in violation of C.G.S. §53a-217(a)(3)(A) and criminal violation of a protective order in violation of C.G.S. §53a-223(a). The Appellate Court affirmed the judgment. Bernacki appealed contending that the Appellate Court improperly concluded that the legislature clearly intended to permit multiple punishments for the same offense and that his two convictions are not a double jeopardy violation. The majority of the Supreme Court affirmed the Appellate Court's judgment concluding that C.G.S. §53a-217(a)(3)(A) and §53a-223(a) are not the "same offense" under Chief Justice Rehnquist's Blockburger analysis in U.S. v. Dixon and there was no evidence that the legislature clearly intended to preclude defendants from being convicted of, and punished for, committing both offenses. The defendant had posited that C.G.S. §53a-223(a) and §53a-217(a)(3)(A), are the "same offense" under the analysis articulated by Justice Scalia's separate opinion in U.S. v. Dixon. The majority found Connecticut's well established technical double jeopardy analysis since the 2001 case of State v. Alvarez, which focuses on the elements of the statutes at issue and the charging instruments without regard to the evidence adduced at trial, more consistent with Rehnquist's than Scalia's approach. Adopting that approach and confining the "same offense" analysis to the statutes and charging documents, without regard to the specific terms of the protective order that the defendant was convicted of violating under C.G.S. §53a-223(a), the majority found each statute contained a different statutory element requiring proof of a fact that the other does not leading to the presumption that they are not the same offense for double jeopardy purposes. The defendant failed to rebut the Blockburger presumption. Justice Eveleigh, with whom Justices Palmer and Harper joined, dissented. They disagreed that the crimes are not the same offense under either Scalia or Rehnquist's analytical approach and that a double jeopardy violation existed.