State v. Flemke ( 2015 )

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STATE v. FLEMKE—CONCURRENCE
ESPINOSA, J., concurring. Although I agree with the
majority that the judgment of the trial court should be
affirmed, I write separately to emphasize that, despite
the majority’s suggestion to the contrary in dictum, the
present case does not provide support for the new rule
adopted by this court in State v. Pond, 315 Conn. 451,
A.3d (2015), namely, that in order for a defendant
to be convicted of conspiracy in violation of General
Statutes § 53a-48 (a), the state is required to prove that
the defendant specifically intended that every element
of the conspired offense be accomplished, even an ele-
ment that itself carries no specific intent requirement.
In my dissenting opinion in Pond, I observed that the
new rule created by that decision would require the
state to prove the existence of a formal or express
agreement between the conspirators. Id., 497. The prob-
lem with that new rule, I explained, is that ‘‘[i]t is only
in rare instances that conspiracy may be established
by proof of an express agreement to unite to accomplish
an unlawful purpose.’’ (Internal quotation marks omit-
ted.) State v. Lewis, 220 Conn. 602, 607, 600 A.2d 1330(1991). As I explain in my concurring opinion in the
companion case released today, State v. Danforth, 315
Conn. 518, 538, A.3d (2015), the present case
is one of those rare instances in which the state was able
to provide evidence that the coconspirators actually sat
down together prior to committing the crime that was
the subject of the conspiracy and arrived at a ‘‘collective
agreement’’ regarding its details, including the use of
an airsoft pellet gun during the robbery. Accordingly,
the present case illustrates the stringent burden now
placed on the state by Pond, and should not be used
as a representative example useful in establishing that
the new rule set forth in Pond will be a workable one.
Accordingly, I concur.