State v. Danforth

315 Conn. 518

108 A.3d 1060

STATE of Connecticut

v.Kelly Ann DANFORTH.

No. 19243.

Supreme Court of Connecticut.

Argued Feb. 10, 2014.

Decided Feb. 10, 2015.

Annacarina Jacob, senior assistant public defender, with whom, on the brief, was James B. Streeto, assistant public defender, for the appellant (defendant).

Kathryn W. Bare, assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Andrew Reed Durham, assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

PALMER, J.

A jury found the defendant, Kelly Ann Danforth, guilty of robbery in the first degree as an accessory in violation of General Statutes §§ 53a–134 (a)(4)¹ and 53a–8 (a),² and conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a–134 (a)(4) and 53a–48 (a).³ Because the jury further found that a firearm had been used in the commission of the robbery, the trial court concluded that the defendant was subject to a sentence enhancement under General Statutes § 53–202k,⁴ which provides for the mandatory imposition of a consecutive five year term of imprisonment when a person uses, or is armed with and threatens to use, a firearm in the commission of a class A, B or C felony.⁵ The trial court rendered judgment in accordance with the jury verdict and finding, and sentenced the defendant to a total effective term of imprisonment of six years.⁶ On appeal,⁷ the defendant claims that (1) the evidence was insufficient to support her conviction of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree, (2) she was not subject to sentence enhancement under § 53–202k because that provision should be construed to apply only to persons who either use a firearm in the commission of the offense or intend that another participant in the offense do so,⁸ and because it is undisputed that the defendant was unarmed when the robbery occurred and the jury was not asked to decide whether she intended that a firearm be used in the robbery, and (3) the trial court improperly instructed the jury regarding the state's burden of proof. We reject the defendant's claims and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In October, 2010, the defendant, her boyfriend, Anthony Flemke, and their mutual friend, Chadwick Matzdorff, resided together in an apartment in the town of Lebanon. On October 19, 2010, the defendant learned that Charissa McDonald, from whom she frequently purchased prescription drugs, including Percocet, illegally, was in possession of a large quantity of such drugs. The defendant proposed to Flemke and Matzdorff that they rob McDonald of the drugs, and, together, they devised a plan for doing so. Specifically, they agreed that the defendant would arrange to meet McDonald later that evening in the parking lot of a gas station in the town of Bolton, ostensibly for the purpose of purchasing ten Percocet pills from her. Because McDonald knew both the defendant and Flemke, they decided that Matzdorff should carry out the robbery and that Flemke, using the defendant's car, would serve as Matzdorff's driver. The plan called for Flemke to drive Matzdorff to the gas station where the defendant and McDonald had agreed to meet. The defendant would wait at home and Flemke would wait in a nearby parking lot while Matzdorff carried out the robbery. Once the robbery was completed, the defendant would call McDonald's cell phone from her home telephone to establish an alibi for the whereabouts of the defendant, Flemke and Matzdorff during the robbery. While the defendant, Flemke and Matzdorff were planning the robbery, Flemke had provided Matzdorff with a ski mask and an airsoft pellet gun to use during the robbery.

In accordance with the plan, the defendant arranged to meet McDonald at the Bolton gas station where they usually met when the defendant purchased drugs from her. Flemke then drove Matzdorff to that location to wait for McDonald. When McDonald arrived at the gas station with her friend, Kelly D'Aprile, they saw that the station was closed and decided that it was unsafe to complete the transaction there. At that time, McDonald, who was sitting in the passenger seat, sent a text message to the defendant's cell phone, instructing the defendant to meet her at a 7–Eleven store in the town of Andover instead. Flemke, who had taken the defendant's cell phone with him, responded to the text message, pretending to be the defendant. Flemke informed McDonald that they would meet at the 7–Eleven store. Flemke then drove Matzdorff to that location. Once there, Matzdorff waited in the woods behind the store until all other customers had left the parking lot. He then ran up to McDonald's car, opened the driver's side door, pointed the gun at D'Aprile's head, and demanded that she give him “everything” she had. Before D'Aprile could respond, Matzdorff reached into the car, grabbed a purse from the backseat and ran off to meet up with Flemke. When Matzdorff got back to the car, he discovered that he had stolen D'Aprile's purse, which contained no drugs. As Flemke and Matzdorff drove home, Matzdorff called the defendant to inform her that the robbery was completed, and that she should call McDonald to establish their alibi. McDonald did not answer her phone at that time, however, because she was busy speaking to police officers who had responded to the robbery. The defendant eventually spoke with McDonald later that evening and informed her that she had gone to the 7–Eleven store as planned but did not stop because there were police cars in the parking lot.

When speaking to police on the night of the robbery, McDonald did not reveal that she was at the 7–Eleven store to sell prescription medication to the defendant. Over the next few days, however, she began to suspect that the defendant was involved in the robbery, and she ultimately told the police about the planned drug transaction. She also told the police that the perpetrator resembled Matzdorff, whom she previously had met through the defendant. After learning that McDonald had informed the police of her suspicions regarding the defendant and Matzdorff, Flemke and Matzdorff disposed of the gun. Matzdorff was eventually arrested and charged with the robbery, and he gave a statement to the police confessing to the crime and implicating Flemke and the defendant as his accomplices.

The defendant thereafter was arrested and charged with robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree. Additionally, the state sought a mandatory five year sentence enhancement pursuant to § 53–202k on the basis of Matzdorff's use of a firearm during the commission of the robbery, even though it was undisputed that the defendant was neither armed nor present at the scene of the robbery. Following a trial, a jury found the defendant guilty of both charges. After accepting the verdict, the court instructed the jury to answer the following interrogatory: “Has the state proven to all of you unanimously beyond a reasonable doubt, that the defendant was convicted of a class B felony and in the commission of such felony the perpetrator used or was armed with and threatened the use of, or displayed, or represented by her words or conduct that she possessed a firearm?” The jury answered the question in the affirmative. The trial court thereafter sentenced the defendant to a total effective term of imprisonment of six years, including a consecutive five year prison term under § 53–202k.⁹ This appeal followed.

I

We first address the defendant's claim that the evidence was insufficient to support her conviction of robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree. The defendant contends that the state failed to adduce sufficient evidence to establish that (1) she intentionally aided Matzdorff and Flemke in the commission of the robbery, which was required to support her conviction of robbery in the first degree as an accessory, and (2) she intended that Matzdorff would use a firearm in the commission of the robbery, which was required to support her conviction of conspiracy to commit robbery in the first degree. We reject both contentions.¹⁰

The following additional facts and procedural history are relevant to our analysis of these claims. At trial, the state relied principally on the testimony of Matzdorff and, to a lesser extent, the testimony of McDonald, to prove its case against the defendant. Matzdorff testified that, on the day of the robbery, the defendant and Flemke had told him that McDonald was in possession of a significant quantity of prescription drugs and that the defendant wanted to rob McDonald of them. Matzdorff further testified that the defendant called McDonald to arrange to meet her at a local gas station so that the defendant could purchase some of the drugs. Matzdorff also testified that, while they were working out the details of the robbery, Flemke went to the bedroom that he shared with the defendant and retrieved a ski mask and an airsoft pellet gun for Matzdorff to use during the robbery. According to Matzdorff, the defendant told him that he “had to be the one to do it [because] Flemke was too much of a bitch. He wouldn't do it—he'd punk out.” Matzdorff further testified that they all agreed that he “was the only one [who] could really do it” because McDonald knew both the defendant and Flemke, and would recognize them. Matzdorff also testified that, immediately after the robbery, he called the defendant from the car and told her to call McDonald to establish their alibi. Specifically, Matzdorff instructed the defendant to tell McDonald that she had driven by the 7–Eleven store but “saw the cops there. That's why [she] didn't stop.” Finally, Matzdorff testified that, when he and Flemke...