State v. Pond ( 2015 )

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STATE v. POND—DISSENT
ESPINOSA, J., dissenting. I disagree with the majori-
ty’s conclusion that in order for a defendant to be con-
victed of conspiracy in violation of General Statutes
§ 53a-48 (a), the state is required to prove that the defen-
dant specifically intended that every element of the
conspired offense be accomplished, even an element
that itself carries no specific intent requirement.
Instead, I conclude that pursuant to the plain language
of § 53a-48 (a), the only specific intent required for the
crime of conspiracy is an intent ‘‘that conduct constitut-
ing a crime be performed . . . .’’ I would therefore
conclude that the Appellate Court improperly reversed
the judgment of conviction of the defendant, Terrell
Williams Pond.
Moreover, I agree with the observation of Judge Bor-
den, concurring in the decision of the Appellate Court,
that our recent decisions have created an anomaly in
our criminal law that is unlikely to have been intended
by the legislature. Specifically, according to the majority
in the present case, pursuant to our decision in State
v. Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005), our
law requires that the state ‘‘prove a greater mens rea
for an inchoate crime—conspiracy—than for the com-
pleted crime itself.’’ (Emphasis in original.) State v.
Pond, 138 Conn. App. 228, 247, 50 A.3d 950 (2012) (Bor-
den, J., concurring). I further agree with Judge Borden
that it is the role of this court to correct that anomaly.
The majority’s decision, by contrast, perpetuates it.
Accordingly, I respectfully dissent.
I first explain why the plain language of the statute
controls. Section 53a-48 (a) provides: ‘‘A person is guilty
of conspiracy when, with intent that conduct constitut-
ing a crime be performed, he agrees with one or more
persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in
pursuance of such conspiracy.’’ Pursuant to the plain
language of § 53a-48 (a), the only intent required in
order to commit the crime of conspiracy is the ‘‘intent
that conduct constituting a crime be performed . . . .’’
Our decisions have characterized conspiracy as a spe-
cific intent crime. See, e.g., State v. Padua, supra, 273
Conn. 167. We have explained the distinction between
specific intent and general intent thusly: ‘‘When the
elements of a crime consist of a description of a particu-
lar act and a mental element not specific in nature, the
only issue is whether the defendant intended to do the
proscribed act. If he did so intend, he has the requisite
general intent for culpability. When the elements of a
crime include a defendant’s intent to achieve some
result additional to the act, the additional language dis-
tinguishes the crime from those of general intent and
makes it one requiring a specific intent.’’ (Internal quo-
tation marks omitted.) State v. Salamon, 287 Conn. 509,
572, 949 A.2d 1092 (2008).
Specific intent, then, is ‘‘an intent to bring about a
certain result.’’ Id. The plain language of § 53a-48 (a)
expressly identifies the ‘‘certain result’’ that must be
intended in order for participants to be convicted of
conspiracy—they must enter into the agreement with
the specific intent ‘‘that conduct constituting a crime
be performed . . . .’’ General Statutes § 53a-48 (a). The
specific intent identified in § 53a-48 is a broad one. All
that the conspirators need to intend is that conduct
constituting a crime be performed. For example, actors
who enter into an agreement with the intent that a
robbery be performed are participants in a conspiracy.
The mere fact that one of the conspirators may subse-
quently, without the knowledge of the coconspirators,
engage in conduct that constitutes an aggravating fac-
tor, such as displaying or threatening the use of what
he represents to be a deadly weapon or dangerous
instrument; see General Statutes § 53a-135 (a); does not
change the fact that the conspirators entered into the
agreement with the requisite specific intent to perform
a robbery. As support for its position that the state is
required to prove that a defendant specifically intended
that all of the elements of the predicate offense be
committed, the majority relies on this court’s statement
in State v. Beccia, 199 Conn. 1, 3–4, 505 A.2d 683 (1986),
that ‘‘[c]onspiracy is a specific intent crime, with the
intent divided into two elements: (a) the intent to agree
or conspire and (b) the intent to commit the offense
which is the object of the conspiracy. . . . To sustain
a conviction for conspiracy to commit a particular
offense, the prosecution must show not only that the
conspirators intended to agree but also that they
intended to commit the elements of the offense.’’
(Emphasis in original; internal quotation marks omit-
ted.) In the present case, that reliance is erroneous. In
State v. Beccia, supra, 1, this court was not focused on
the question of whether § 53a-48 (a) required the state
to prove that the defendant held a specific intent with
respect to each element of the predicate offense.
Rather, in that case, the issue before the court was
whether conspiracy would lie when one of the elements
of the purported predicate offense required a specific
intent of recklessness. Id., 5. We answered that question
in the negative. Id. Thus, the principle relied on in Bec-
cia is that participants cannot agree to ‘‘accomplish an
unintended result [i.e., recklessness].’’ Id. Accordingly,
the language in the decision focused on the requirement
that conspirators must intend, when they enter into
the agreement, to engage in conduct that constitutes
a crime.
The plain meaning of § 53a-48 (a) further explains
why, by contrast, additional language was necessary
to clarify the requisite mental state for the offense of
criminal attempt, General Statutes § 53a-49. Because
§ 53a-48 (a) expressly identifies the specific intent
required for conspiracy as merely the intent that a crime
be performed, it was not necessary for the legislature
to include language in § 53a-48 (a) that tethered the
mental state required for conspiracy to that required
for the predicate offense. In § 53a-49, however, because
the definition of criminal attempt does not expressly
identify a requisite specific intent, it was logical for the
legislature to identify the requisite mens rea for that
offense as being the same mental state as required for
the predicate offense.
The majority’s reliance on accessory liability, as
defined in General Statutes § 53a-8, is misplaced
because that statute is fundamentally different from
either conspiracy or criminal attempt, because it is not
a separate offense from the substantive crime. We have
explained: ‘‘There is . . . no such crime as ‘being an
accessory.’ . . . ‘[T]he accessory statute merely pro-
vides alternate means by which a substantive crime may
be committed.’ ’’ (Citations omitted.) State v. Foster,
202 Conn. 520, 528, 522 A.2d 277 (1987). Section 53a-
8, accordingly, simply reaffirms that because one may
commit the same crime either as a principal or as an
accessory, the same mens rea is required regardless of
the means by which the defendant is criminally liable.
Despite the express language setting forth the requi-
site specific intent for conspiracy, the majority con-
cludes that the statutory language is ambiguous. The
task, therefore, that the majority must accomplish,
based on that conclusion, is to discern the intent of
the legislature. The majority correctly states that ‘‘New
York law is particularly instructive [in discerning legis-
lative intent with respect to our state’s Penal Code].
See Commission to Revise the Criminal Statutes, [Penal
Code Comments, Conn. Gen. Stat. Ann. § 53a-48 (West
2012)] comment, p. 10 (language of Connecticut con-
spiracy statute is based on revised New York Penal
Law); see also State v. Havican, 213 Conn. 593, 601,
569 A.2d 1089 (1990) (because drafters of Connecticut
Penal Code relied heavily on New York Penal Law,
Connecticut courts look to New York law for guidance
in interpreting ambiguous criminal statutes).’’ (Internal
quotation marks omitted.) After acknowledging this
principle of statutory construction, however, the major-
ity improperly relies on People v. Joyce, 100 App. Div.
2d 343, 474 N.Y.S.2d 337, appeal denied, 62 N.Y.2d 807(1984), a decision of the Appellate Division of New York.
The majority claims that Joyce is ‘‘squarely on point
with respect to the present case.’’ It is not. Joyce con-
strued § 105.10 of the New York Penal Law, which pro-
vides in relevant part: ‘‘A person is guilty of conspiracy
in the fourth degree when, with intent that conduct
constituting . . . a class B or class C felony be per-
formed, he [or she] agrees with one or more persons
to engage in or cause the performance of such conduct
. . . .’’ The court in Joyce concluded that § 105.10
required the state to prove that the defendant had the
specific intent that a participant would display a pur-
ported weapon in order to be convicted of conspiracy
to commit burglary in the second degree. People v.
Joyce, supra, 100 App. Div. 2d 347. The majority in the
present case relies on that construction of § 105.10 of
the New York Penal Law to support its construction of
§ 53a-48 (a).
The source statute for § 53a-48 (a), however, was not
§ 105.10, but instead was § 105.00 of the New York Penal
Law, which contains almost identical language to § 53a-
48 (a). Section 105.00 of the New York Penal Law pro-
vides: ‘‘A person is guilty of conspiracy in the sixth
degree when, with intent that conduct constituting a
crime be performed, he agrees with one or more per-
sons to engage in or cause the performance of such
conduct.’’ With respect to the more general provision
of § 105.00, the court in Joyce noted that it may be
appropriate to state ‘‘that one who joins a conspiracy
after its inception, knowing of its central criminal
design, may be held accountable for the actions and
declarations of his coconspirators which occurred
before his entry into the conspiracy . . . .’’ (Citations
omitted.) People v. Joyce, supra, 100 App. Div. 2d 347.
Joyce, accordingly, extends criminal liability further
than the state is seeking in the present case, contemplat-
ing that a defendant may be held liable for actions
undertaken by coconspirators even before the defen-
dant entered the conspiracy. Id. I therefore read Joyce
to favor my interpretation of § 53a-48 (a).
By its interpretation of § 53a-48 (a), the majority
grafts an additional element on to the crime of conspir-
acy. It is well settled that in order to establish the crime
of conspiracy in Connecticut, the state must prove the
three elements of conspiracy: (1) that there was an
agreement between two or more persons (2) to engage
in criminal conduct, and (3) that the agreement was
followed by an overt act in furtherance of the conspir-
acy. State v. Allan, 311 Conn. 1, 12, 83 A.3d 326 (2014).
The majority’s interpretation of § 53a-48 (a), however,
adds the requirement that the state must prove that
conspirators had the specific intent to commit every
element of the predicate offense, even when the predi-
cate offense does not require such specific intent, thus
adding the additional element to the crime of con-
spiracy.
This additional requirement is inconsistent with our
precedent stating that it is not necessary for the state
to prove the existence of a formal or express agreement
between the conspirators. State v. Millan, 290 Conn.
816, 826, 966 A.2d 699 (2009). We have recognized, in
fact, that ‘‘[a] conspiracy can be formed . . . in a very
short time period . . . .’’ (Internal quotation marks
omitted.) Id. Additionally, circumstantial evidence is
sufficient to prove that there was an agreement because
‘‘[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 omitted.) State v. Lewis, 220 Conn. 602, 607,
600 A.2d 1330 (1991). ‘‘[T]he requisite agreement or
confederation may be inferred from proof of the sepa-
rate acts of the individuals accused as coconspirators
and from the circumstances surrounding the commis-
sion of these acts. . . . Further, [c]onspiracy . . .
may be inferred from the activities of the accused per-
sons.’’ (Internal quotation marks omitted.) State v.
Bova, 240 Conn. 210, 245–46, 690 A.2d 1370 (1997).
As an illustration of how inconsistent the majority’s
interpretation is with our existing law on conspiracy,
consider the following hypothetical. Consider a sce-
nario in which, during the course of the attempted rob-
bery of the victim, the other participant displayed,
instead of a carbon dioxide pistol, a gun that was capa-
ble of being discharged. Under those facts, the state
would have charged the defendant with conspiracy to
commit robbery in the first degree in violation of Gen-
eral Statutes § 53a-134 (a).1 Under the majority’s holding
today, the state would be required to prove that the
defendant agreed that the other participant would dis-
play a gun that could be discharged. That level of speci-
ficity of agreement is not consistent with our cases
stating that the state is not required to prove the exis-
tence of a formal agreement, and that the conspiracy
may be inferred from conduct and circumstantial evi-
dence.2 After today’s decision, the state will be required
to prove a formal agreement as to the elements of the
predicate offense. Rarely will coconspirators sign
papers, shake hands or utter the words, ‘‘I agree to X
and Y, but not Z.’’ See State v. Millan, supra, 290 Conn.
826 (‘‘[c]onspiracy can seldom be proved by direct evi-
dence’’ [internal quotation marks omitted]).
I observe, further, that the new element that the
majority now requires the state to prove is also at odds
with our criminal jury instructions, which have long
provided that ‘‘it is not essential that [a defendant] know
the complete plan of the conspiracy in all of its details.
It is enough if [the defendant] knows that a conspiracy
exists or that [he] is creating one and that [he] is joining
with at least one person in an agreement to commit a
crime.’’ Connecticut Criminal Jury Instructions § 3.3-1
(4th Ed. 2011), available at http://jud.ct.gov/ji/criminal/
part3/3.3-1.htm (last visited January 20, 2015). Those
instructions also provide that ‘‘[i]n order to convict a
person of conspiracy, the state need not show that
such person had direct communication with all other
conspirators. It is not necessary that each conspirator
be acquainted with all others or even know their
names.’’ Id. The rule that the majority announces today
effectively requires the state to prove the existence of
a formal agreement, and also now requires that the
state prove that the defendant did know all the details
of the conspiracy, despite the fact that our courts have
long delivered the opposite instruction.
The primary policy reason that the majority offers in
support of its conclusion that the legislature is not likely
to have intended that a defendant be held liable for the
subsequent actions of a coconspirator is the concern
that persons not be held liable for the actions of others
unless they have agreed to those actions. As the majority
explains, ‘‘[u]nder the state’s reading of the statute,
an individual who plans a simple, unarmed robbery
nevertheless can be convicted of the more serious crime
of conspiracy to commit robbery in the first or second
degree if weapons are ultimately used without his
knowledge or consent.’’ Subsection (b) of § 53a-48,
however, specifically provides: ‘‘It shall be a defense
to a charge of conspiracy that the actor, after conspiring
to commit a crime, thwarted the success of the conspir-
acy, under circumstances manifesting a complete and
voluntary renunciation of his criminal purpose.’’ If a
defendant does not agree to the use of a weapon during
a robbery, the defendant has the option to engage in
conduct manifesting his renunciation of his criminal
purpose.
As Judge Borden observed in his concurring opinion
in the Appellate Court, it is unlikely that the legislature
intended to require the state to prove a greater mens
rea for the inchoate crime of conspiracy than it is
required to prove for the completed crime. State v.
Pond, supra, 138 Conn. App. 247. Both the nature of
conspiracy as an inchoate crime, as well as the penalty
that the legislature deemed appropriate for the crime of
conspiracy, support the conclusion that the legislature
views the crime of conspiracy as at most equal in sever-
ity to the completed offense. This court previously has
defined the term ‘‘inchoate’’ to mean ‘‘imperfect; partial;
unfinished; begun, but not completed.’’ (Internal quota-
tion marks omitted.) State v. Trent, 182 Conn. 595, 600,
438 A.2d 796 (1981). Inherent in that definition is that
an inchoate crime is predicated on, but in some respects
lesser than, the completed offense. And the punishment
for conspiracy is equal to, not greater than, the punish-
ment for the completed offense. That is, the crime of
conspiracy is of the same grade and degree as is the
object of the conspiracy. General Statutes § 53a-51. If
the penalty for the two crimes is the same, and if the
crime of conspiracy is an ‘‘incomplete’’ version of the
predicate offense, it is not rational to require the state
to bear a higher burden of proof for the crime of con-
spiracy.
As Judge Borden explained, ‘‘[o]ur statutes are to be
read, where possible, with common sense; see State v.
Courchesne, 296 Conn. 622, 710, 998 A.2d 1 (2010); and
as forming a coherent, rational whole, rather than as
forming an anomalous, inconsistent scheme. See Aspet-
uck Valley Country Club, Inc. v. Weston, 292 Conn. 817,
829, 975 A.2d 1241 (2009) (we read related statutes to
form a consistent, rational whole, rather than to create
irrational distinctions . . .). That principle is particu-
larly appropriate for interpretation of the Penal Code,
which was enacted to rationalize our state’s former
patchwork quilt of criminal laws.’’ (Internal quotation
marks omitted.) State v. Pond, supra, 138 Conn. App.
246 (Borden, J., concurring). Put briefly, the majority’s
interpretation of § 53a-48 (a) does not adhere to these
principles of statutory construction.
Finally, the majority devotes a significant amount of
time to discussing other theories of criminal liability
that the state can or should have relied on in the present
case, such as criminal attempt, accessory liability, and
liability pursuant to Pinkerton v. United States, 328
U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946). First, I
observe that the fact that the state may have other
means, both statutory and at common law, by which it
may obtain a conviction is irrelevant to the task before
the court in this appeal, which is limited to the statutory
construction of § 53a-48 (a). Second, I note that the
majority’s discussion of alternative theories on which
the state could rely indirectly demonstrates yet another
weakness in the majority’s interpretation—it has con-
strued § 53a-48 (a) to require a specificity of intent so
high that it is reasonable to question why the state
would ever from this point on rely on § 53a-48 (a).
The majority’s interpretation of the statute effectively
removes conspiracy as a viable tool from the state’s
arsenal, thus nullifying the legislature’s intent to punish
the crime of conspiracy.
For the foregoing reasons, I respectfully dissent.
1
General Statutes § 53a-134 (a) provides in relevant part: ‘‘A person is
guilty of robbery in the first degree when, in the course of the commission
of the crime of robbery as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . . (4) displays or threat-
ens the use of what he represents by his words or conduct to be a pistol,
revolver, rifle, shotgun, machine gun or other firearm, except that in any
prosecution under this subdivision, it is an affirmative defense that such
pistol, revolver, rifle, shotgun, machine gun or other firearm was not a
weapon from which a shot could be discharged. . . .’’
2
The majority states that its new rule does not require the state to prove
the existence of a formal agreement in order to sustain its burden to prove
conspiracy, and suggests that because the state may prove the existence of
the agreement as to each and every element of the offense by circumstantial
evidence, the nature of the agreement that the state will be required to prove
is not a formal one. The type of evidence, whether direct or circumstantial, by
which the state may prove the existence of the agreement does not change
the fact that the majority’s rule now requires the state to prove a very
specific and highly detailed agreement, known to all participants in the
conspiracy, without explaining the abandonment of our well established
rules concerning what constitutes an agreement to commit a crime. Indeed,
if the agreement envisioned by the majority does not constitute a formal
agreement, it is entirely unclear what the majority would consider to consti-
tute a formal agreement.