State v. Flemke

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STATE OF CONNECTICUT v. ANTHONY FLEMKE
(SC 19244)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued February 10, 2014—officially released February 10, 2015
Glenn W. Falk, assigned counsel, 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).
Opinion
PALMER, J. A jury found the defendant, Anthony
Flemke, guilty of robbery in the first degree as an acces-
sory 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 state also sought
a sentence enhancement under General Statutes § 53-
202k,4 which provides for a mandatory, consecutive five
year prison term 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, the jury further found that a
firearm had been used5 in the commission of the rob-
bery, a class B felony.6 Although it is undisputed that
only the defendant’s accomplice was armed during the
commission of the robbery, the trial court sentenced the
defendant under § 53-202k to a term of imprisonment of
five years to be served consecutively with the eighteen
month sentence that the court imposed for the defen-
dant’s conviction of robbery in the first degree as an
accessory.7 On appeal,8 the defendant contends that we
should overrule our holding in State v. Davis, 255 Conn.
782, 784, 792, 772 A.2d 559 (2001), that § 53-202k applies
to unarmed accomplices. The defendant also contends
that, if we decline to overrule Davis, we should limit
the applicability of § 53-202k to unarmed accomplices
who intended that a firearm be used in the commission
of the underlying offense. We reject the defendant’s
claims and, therefore, affirm the judgment of the trial
court.
The jury reasonably could have found the following
relevant facts. At all times relevant to this appeal, the
defendant, his girlfriend, Kelly Ann Danforth, and their
mutual friend, Chadwick Matzdorff, resided together in
an apartment in the town of Lebanon. On October 19,
2010, Danforth learned that Charissa McDonald, from
whom she frequently purchased prescription drugs,
including Percocet, illegally, was in possession of a
large quantity of such drugs. Danforth proposed to the
defendant and Matzdorff that they rob McDonald of the
drugs, and, together, they devised a plan for doing so.
Specifically, they agreed that Danforth would arrange
to meet McDonald later that evening in the parking lot
of a gas station in the town of Bolton, purportedly to
purchase ten Percocet pills from her. Because McDon-
ald was acquainted with the defendant and Danforth,
they decided that Matzdorff should carry out the rob-
bery using an airsoft pellet gun and ski mask belonging
to the defendant. They also agreed that the defendant,
using Danforth’s car, would serve as Matzdorff’s driver.
According to the plan, while Danforth waited at home,
the defendant would drive Matzdorff to the gas station
where Danforth and McDonald had agreed to meet, and
then wait in a nearby parking lot while Matzdorff carried
out the robbery.
Later that evening, Danforth called McDonald and
arranged to meet her at the gas station. McDonald sub-
sequently sent a text message to Danforth and told her
to meet her at a 7-Eleven store in the town of Andover
instead. A friend of McDonald’s, Kelly D’Aprile, then
drove McDonald, in McDonald’s car, to that location.
While the women were waiting for Danforth to arrive,
Matzdorff ran up to their car, opened the driver’s 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. On their way
home, Matzdorff and the defendant discovered that Mat-
zdorff had grabbed D’Aprile’s purse, which contained
no drugs.
A few months later, police interviewed Matzdorff
about the robbery. At that time, he confessed to his
role in the crime and implicated the defendant and
Danforth as his accomplices.
The defendant and Danforth were subsequently
arrested, and each was 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 for both
the defendant and Danforth pursuant to § 53-202k on
the basis of Matzdorff’s use of a firearm during the
commission of the robbery.9 Following a joint trial, the
jury found the defendant and Danforth guilty on both
robbery counts. After accepting the verdicts, and, in
accordance with § 53-202k, the court submitted the fol-
lowing interrogatory to the jury: ‘‘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 his words or conduct that
he possessed a firearm?’’ The jury answered the inter-
rogatory in the affirmative.10 The trial court rendered
judgment in accordance with the jury verdicts, and,
with respect to the charge of commission of a class A,
B or C felony with a firearm in violation of § 53-202k,
the court sentenced the defendant to a prison term of
five years, to be served consecutively with the sentence
imposed by the court for the conviction of robbery in
the first degree as an accessory, as § 53-202k requires.
In overruling the defendant’s objection to the five year
sentence enhancement, the trial court relied on State
v. Davis, supra, 255 Conn. 784, 792, in which this court
concluded that § 53-202k applies to unarmed accom-
plices who are charged and found guilty of being acces-
sories pursuant to § 53a-8 (a). This appeal followed.
On appeal, the defendant claims that his sentence
was improperly enhanced under § 53-202k because that
provision, by its terms, applies only to a person or
persons who actually use a firearm during the commis-
sion of a class A, B or C felony. Although the defendant
acknowledges that this court rejected an identical claim
in Davis, he urges us to overrule Davis in light of the
legislature’s subsequent enactment of General Statutes
§ 1-2z,11 which codified the common-law plain meaning
rule. Alternatively, the defendant contends that we
should limit this court’s holding in Davis to cases in
which the jury is instructed that, to find an unarmed
accomplice subject to sentence enhancement under
§ 53-202k, the state must prove that he or she intended
that a firearm would be used in the commission of the
offense by another participant.
We decline the defendant’s invitation to overrule or
otherwise limit Davis for several reasons. First, this
court previously has concluded that the legislature, in
enacting § 1-2z, did not intend to overrule any case
decided prior to its enactment that construed a statute
in a manner that conflicts with the dictates of § 1-2z.
Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501,
923 A.2d 657 (2007). Second, contrary to the defendant’s
claim, our conclusion in Davis that § 53-202k applies
to unarmed accomplices is in no way inconsistent with
the plain meaning rule set forth in § 1-2z. Third, even if
we agreed with the defendant that we should reconsider
our interpretation of § 53-202k in Davis, the legislature
has given no indication since Davis was decided that
it disagrees with our construction of § 53-202k in that
case, thereby giving rise to an inference that the legisla-
ture approves of our reading of the statute. Finally, our
reasoning in Davis forecloses the defendant’s con-
tention that we should limit our holding in that case
by construing § 53-202k to apply to an unarmed accom-
plice only if that accomplice intends that another partic-
ipant in the underlying class A, B or C felony would
use a firearm in the commission of the offense.
As we have observed, we do not write on a blank
slate with respect to the issue of whether § 53-202k
applies to an unarmed accomplice. In Davis, a jury
found the defendant, Todd Darnell Davis, guilty of first
degree robbery and first degree burglary in connection
with an armed robbery of a restaurant. State v. Davis,
supra, 255 Conn. 783–84. At trial, the evidence estab-
lished that Davis and another man, who never was
apprehended, had entered the restaurant wearing
masks and that one of them held a gun to an employee’s
head while forcing the employee to open the restau-
rant’s safe. Id., 784. Prior to trial, the state informed
Davis that it intended to seek the five year sentence
enhancement authorized by § 53-202k. Id., 785. At the
sentencing hearing following the return of the jury’s
verdict, the state agreed with Davis that the evidence
presented at trial indicated that he was likely unarmed
at the time of the robbery. See id., 786. The trial court
nevertheless sentenced Davis to a five year consecutive
term of imprisonment in accordance with § 53-202k,
concluding that it made no difference whether he per-
sonally was armed during the robbery, because, under
well established principles of accessorial liability, he
was liable for the criminal conduct of the person who
was armed. See id.
On appeal to this court, Davis claimed, inter alia,
that, contrary to the determination of the trial court,
the plain language and legislative history of § 53-202k
made it clear that the legislature intended that § 53-
202k would apply only to persons who actually use a
firearm during the commission of a class A, B or C
felony, and that the legislature’s failure to include acces-
sory language in § 53-202k constituted ‘‘an affirmative
decision by the legislature to apply § 53-202k only to
principals.’’ Id., 789. In rejecting this contention, we
recognized that ‘‘[c]riminal statutes are to be read no
more broadly than their language plainly requires’’ and
that we therefore ‘‘must refrain from imposing criminal
liability [when] the legislature has not expressly so
intended.’’ (Internal quotation marks omitted.) Id., 788.
We concluded, nevertheless, that § 53-202k applied to
Davis by virtue of § 53a-8 (a), which treats principals
and accomplices alike for purposes of criminal liability.
We explained that Davis, in arguing that § 53-202k did
not apply to him, was attempting ‘‘to draw a distinction
between principal and accessorial liability. Such a dif-
ferentiation, however, misconstrues the nature of
accessorial liability. This court has long since aban-
doned any practical distinction between the terms
‘accessory’ and ‘principal’ for the purpose of determin-
ing criminal liability. . . . Instead, ‘[t]he modern
approach is to abandon completely the old common
law terminology and simply provide that a person is
legally accountable for the conduct of another when
he is an accomplice of the other person in the commis-
sion of the crime.’ . . . The legislature adopted this
view and expressed it in . . . § 53a-8 (a). Accordingly,
‘accessorial liability is not a distinct crime, but only an
alternative means by which a substantive crime may
be committed . . . .’ ’’ (Citations omitted; footnote
omitted.) Id., 789–90.
We also stated that, although many penal statutes
speak to the criminal conduct of a principal actor only,
this does not mean that they do not also apply to accom-
plices. Id., 790 (‘‘[a]lthough, by its terms, our murder
statute encompasses only the principal actor, it
undoubtedly applies to all participants in the crime’’).
To the contrary, such statutes must be read together
with § 53a-8 (a), which provides that an accomplice is
subject to exactly the same liability and punishment
as the principal. We also explained that § 53a-8 (a) is
no less applicable to § 53-202k than it is to substantive
offenses: ‘‘The fact that § 53-202k is a sentence enhance-
ment provision rather than a separate and distinct
offense . . . is of no consequence to our analysis. [Sec-
tion 53a-8] permits an accessory to be prosecuted and
punished as if he were the principal offender. . . .
Thus, once convicted of armed robbery and armed bur-
glary, even if as an accessory, [Davis] is legally indistin-
guishable from the principal actor. Accordingly, [Davis]
is subject to the enhancement penalty that the principal
also would have received [if] he [had] been caught and
convicted. For purposes of legal analysis, it is irrelevant
that [Davis] did not actually possess the gun.’’ (Citations
omitted; emphasis omitted; internal quotation marks
omitted.) Id., 792. Finally, in reaching our determina-
tion, we observed that, because the legislature is pre-
sumed to know the state of the law when it enacts a
statute, it would not be appropriate for this court to
attribute to the legislature an intent to alter settled
principles of accessorial liability through its enactment
of § 53-202k. See id., 791 (‘‘we refuse to adopt an inter-
pretation of § 53-202k that would require courts to
retreat to the days of determining which actors should
be identified as principals and which should be identi-
fied as accomplices’’); see also State v. Apodaca, 303
Conn. 378, 396, 33 A.3d 224 (2012) (observing that
‘‘accessorial liability . . . was firmly rooted in this
state’s criminal jurisprudence prior to the enactment
of § 53-202k’’).
Although acknowledging that he cannot prevail on
his claim concerning the applicability of § 53-202k to
unarmed accomplices in light of our holding in Davis,
the defendant contends that we should overrule that
holding because of § 1-2z, which was enacted subse-
quent to our decision in Davis and requires courts to
adhere to the plain and unambiguous meaning of the
statutory language, and to eschew the use of extratex-
tual sources as an interpretative aid, unless a construc-
tion of the statute in accordance with its plain meaning
leads to bizarre or unworkable results. The defendant’s
claim founders on this court’s decision in Hummel v.
Marten Transport, Ltd., supra, 282 Conn. 501, in which
we expressly held that the enactment of § 1-2z did not
signal an intent by the legislature to overrule cases in
which our courts, prior to the passage of § 1-2z, had
interpreted a statute in a manner inconsistent with the
plain meaning rule as articulated in § 1-2z. Conse-
quently, Hummel alone is sufficient to defeat the defen-
dant’s claim.
More important for present purposes, however, there
is nothing about our analysis in Davis that is in any
way inconsistent with the rule of § 1-2z. Although, as
the defendant asserts, the language of § 53-202k refers
to the principal actor only, under § 1-2z, we also must
look to other relevant statutes to determine whether
the meaning of § 53-202k may be ascertained without
resort to extratextual evidence. As we explained in
Davis, reading § 53-202k together with the accessory
statute, § 53a-8 (a), leads to the conclusion that § 53-
202k applies to an unarmed accomplice no less than it
applies to an armed participant ‘‘because the basic the-
ory of accessorial liability requires such an interpreta-
tion.’’12 (Emphasis added.) State v. Davis, supra, 255
Conn. 787. The defendant’s plain meaning argument
simply ignores the import of § 53a-8 (a), and, therefore,
that argument must fail. Indeed, it reasonably may be
argued that, when § 53-202k is considered in conjunc-
tion with § 53a-8 (a), those statutory provisions lead to
the opposite conclusion, namely, that § 53-202k plainly
and unambiguously does apply to an unarmed accom-
plice. We need not resolve that question in the present
case, however, because the defendant has identified
nothing in the legislative history of § 53-202k or in any
other extratextual source, and we know of none, that
would support the interpretation that he advances.13
Furthermore, even if the foregoing considerations do
not provide sufficient reason for us to refrain from
reconsidering our holding in Davis, the principle of
legislative acquiescence would provide such reason.
As we repeatedly have acknowledged, ‘‘our case law
dictates that we should be especially wary of overturn-
ing a decision that involves the construction of a statute.
. . . When we construe a statute, we act not as plenary
lawgivers but as surrogates for another policy maker,
[that is] the legislature. In our role as surrogates, our
only responsibility is to determine what the legislature,
within constitutional limits, intended to do. Sometimes,
when we have made such a determination, the legisla-
ture instructs us that we have misconstrued its inten-
tions. We are bound by the instructions so provided.
. . . More often, however, the legislature takes no fur-
ther action to clarify its intentions. . . . [W]e [there-
fore] have characterized the failure of the legislature
to take corrective action as [a manifestation of] the
legislature’s acquiescence in our construction of a stat-
ute. . . . Once an appropriate interval to permit legis-
lative reconsideration has passed without corrective
legislative action, the inference of legislative acquies-
cence places a significant jurisprudential limitation on
our own authority to reconsider the merits of our earlier
decision.’’ (Internal quotation marks omitted.) Ciarlelli
v. Hamden, 299 Conn. 265, 285 n.12, 8 A.3d 1093 (2010).
Davis was decided nearly fourteen years ago, a signifi-
cant enough period of time to give rise to an inference
that the legislature does not take issue with our interpre-
tation of § 53-202k. See, e.g., Commission on Human
Rights & Opportunities v. Sullivan, 285 Conn. 208,
221, 939 A.2d 541 (2008) (eight years without legislative
action was appropriate interval to support inference of
legislative acquiescence); Rivera v. Commissioner of
Correction, 254 Conn. 214, 252, 756 A.2d 1264 (2000)
(six year interval without legislative action supported
inference of legislative acquiescence).
The inference of legislative acquiescence is strength-
ened in this case in light of our reliance on our reasoning
in Davis in subsequent cases involving similar issues of
statutory interpretation. For example, in State v. Peeler,
271 Conn. 338, 857 A.2d 808 (2004), cert. denied, 546
U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005), we relied
on Davis in concluding that principles of accessorial
liability could be used to prove an aggravating factor
during the penalty phase of a capital felony trial even
though the defendant, Russell Peeler, was not present
during the commission of the underlying homicides.
See id., 430–31, 435–37. In support of his claim to the
contrary, Peeler argued, inter alia, that ‘‘nothing in Con-
necticut’s death penalty statutory framework allow[ed]
principles of vicarious liability to be used to prove
aggravating factors,’’ and that the state had failed to
present evidence that he had instructed the principal
to carry out the murders in a cruel, heinous or depraved
manner. Id., 432. In rejecting this claim, we observed
that General Statutes (Rev. to 1997) § 53a-46a (i), which
sets forth the aggravating factors that a jury must find
before a death sentence may be imposed, was analo-
gous to the sentence enhancement provision at issue in
Davis, and that principles of accessorial liability applied
equally to both statutes. Id., 437–38. Specifically, we
stated: ‘‘By its express terms, [§ 53a-8] provides that a
person may be prosecuted and punished as the principal
without actually committing the offense himself. [Peel-
er’s] interpretation, however, would have this court
focus solely [on] the use of accessorial liability to prose-
cute a defendant as if he were a principal . . . and
ignore the statute’s mandate that an accessory shall
also be punished as if he were the principal. Our well
established rules of statutory construction prohibit us
from interpreting a statute in such a way as to ignore
some of the express wording enacted by the legisla-
ture.’’ (Emphasis omitted.) Id., 435. To conclude other-
wise, we observed, ‘‘would vitiate one of the clearly
stated, overarching purposes of [§ 53a-8], i.e., the pun-
ishment of a person as if he were the principal, when,
with the requisite mental state, he solicits, requests,
commands, importunes or intentionally aids the person
who physically committed the crime.’’ (Emphasis omit-
ted.) Id.
We again relied on Davis in State v. Gonzalez, 300
Conn. 490, 507, 15 A.3d 1049 (2011), in which the defen-
dant, Alfredo Gonzalez, was convicted of manslaughter
in the first degree with a firearm as an accessory in
violation of General Statutes §§ 53a-55a (a) and 53a-8
(a). Id., 491–92. On appeal, Gonzalez claimed that the
trial court improperly failed to instruct the jury that it
must find that he intended that another participant in
the offense would use a firearm in order to find him
guilty. Id., 492. In rejecting this claim, we noted, first,
that the firearm element of manslaughter in the first
degree is an aggravating circumstance that does not
require proof of the perpetrator’s intent to use the fire-
arm. Id., 502–503. We further noted that ‘‘Connecticut
case law remains consistent . . . in permitting the
imposition of accessorial liability pursuant to § 53a-8,
without requiring that the defendant intend to satisfy
a criminal statute’s aggravating circumstance in cases
[in which] that aggravating circumstance does not
[require] a specific mental state and requires only that
the principal act with the general intent to perform the
proscribed act.’’ Id., 506. We therefore concluded that
the trial court was not required to instruct the jury that
it could find Gonzalez guilty only upon proof that he
intended that a firearm would be used in the commis-
sion of the offense. Id., 510. In reaching our determina-
tion, we once again relied on Davis, describing our
decision therein as this court’s ‘‘[m]ost significant’’ case
with respect to the issue of whether accessorial liability
may be imposed on a defendant without proof that he
‘‘intend[ed] to satisfy a criminal statute’s aggravating
circumstance [requirement] . . . .’’ Id., 506. What is
clear from our discussion of the foregoing cases is that
Davis has become an established part of our jurispru-
dence, and, as such, we will not disturb it in the absence
of a compelling reason to do so, which, in the present
case, the defendant has failed to provide.14
Finally, Davis did not expressly address the issue of
whether § 53-202k requires the state to prove that an
unarmed accomplice intended that another participant
in the offense would use a firearm in the commission
of the offense, as the defendant contends.15 Our analysis
in Davis, however, forecloses such a claim because, as
we have explained, our conclusion in that case was
predicated on the determination that Davis, having been
convicted of robbery in the first degree as an accessory,
was legally indistinguishable from the principal, and,
consequently, he was subject to precisely the same pun-
ishment to which the principal would have been subject
if the principal had been apprehended and convicted
along with Davis. See State v. Davis, supra, 255 Conn.
789–93. In light of Davis, therefore, it is perfectly clear
that, under § 53-202k, the state was required to prove
only that the defendant was guilty of being an accessory
to the underlying robbery and that a firearm was used
in the commission of the robbery; the state was not
required to also prove that the defendant intended that
a firearm would be used during the robbery.16 See id.,
795–96 (proof that one participant in class A, B or C
felony used firearm is all that is necessary to obtain
sentence enhancement under § 53-202k for all other
persons found guilty of that felony). Accordingly, we
decline to limit Davis as the defendant advocates.17
The judgment is affirmed.
In this opinion the other justices concurred.
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. Nothing contained in this
subdivision shall constitute a defense to a prosecution for, or preclude a
conviction of, robbery in the second degree, robbery in the third degree or
any other crime.’’
2
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
3
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting 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 con-
spiracy.’’
4
General Statutes § 53-202k provides: ‘‘Any person who commits any class
A, B or C felony and in the commission of such felony uses, or is armed
with and threatens the use of, or displays, or represents by his words or
conduct that he possesses any firearm, as defined in section 53a-3, except
an assault weapon, as defined in section 53-202a, shall be imprisoned for a
term of five years, which shall not be suspended or reduced and shall
be in addition and consecutive to any term of imprisonment imposed for
conviction of such felony.’’
5
Because the present case involves the actual use of a firearm, for the sake
of convenience, we refer to the statutory prohibition in terms of use only.
6
As we previously have held, ‘‘§ 53-202k is a sentence enhancement provi-
sion and not a separate crime. . . . Although § 53-202k does not expressly
delegate to the jury the task of determining whether a firearm was used in
the commission of a felony, we have interpreted [it] to require the jury to
perform that fact-finding function.’’ (Citation omitted.) State v. Patterson,
276 Conn. 452, 476–77, 886 A.2d 777 (2005).
7
The court also imposed a six and one-half year concurrent term of
imprisonment for the defendant’s conviction of conspiracy to commit rob-
bery in the first degree, for a total effective term of imprisonment of six
and one-half years. The term of imprisonment is to be followed by a term
of ten years of special parole.
8
The defendant appealed to the Appellate Court from the judgment of
the trial court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-2.
9
The state initially charged the sentence enhancement as a separate count
in the information. The state subsequently filed a two part substitute informa-
tion charging the defendant, in the first part, with robbery in the first degree
as an accessory and conspiracy to commit robbery in the first degree. In
the second part of the substitute information, the state sought the sentence
enhancement pursuant to § 53-202k. Thereafter, the trial court determined
that the sentence enhancement did not apply to the conspiracy count but
that the defendant could be subject to enhancement for the count charging
robbery in the first degree as an accessory if the defendant were to be
convicted on that count.
10
The interrogatory was submitted in the case against the defendant and
the case against Danforth. The jury also answered the interrogatory affirma-
tively in Danforth’s case.
11
General Statutes § 1-2z provides: ‘‘The meaning of a statute shall, in the
first instance, be ascertained from the text of the statute itself and its
relationship to other statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and unambiguous and
does not yield absurd or unworkable results, extratextual evidence of the
meaning of the statute shall not be considered.’’
12
Notably, in Davis, we did not go beyond the language of §§ 53-202k
and 53a-8 (a) in concluding that the former provision applies to unarmed
accomplices, even though Davis had argued that the legislative history of
§ 53-202k militated against such an interpretation. State v. Davis, supra, 255
Conn. 787.
13
The defendant contends that, if any part of § 53a-8 is relevant to clarifying
the legislative knowledge requirement for a firearm sentence enhancement
when a person allegedly provides a firearm to another, it is § 53a-8 (b) rather
than § 53a-8 (a). Section 53a-8 (b) provides in relevant part that ‘‘[a] person
who . . . delivers or provides any firearm . . . to another person to engage
in conduct which constitutes an offense knowing or under circumstances
in which he should know that such other person intends to use such firearm
in such conduct shall be criminally liable for such conduct and shall be
prosecuted and punished as if he were the principal offender.’’
In ascertaining the scope of § 53-202k in Davis, however, we considered
the general principles of accessorial liability, which are set forth in subsec-
tion (a) of § 53a-8, not the different, special form of vicarious liability set forth
in subsection (b) of § 53a-8, which ensures that any person who provides a
firearm to another with the knowledge that it will be used in the commission
of an offense may be held to answer for the offense as a principal even
though he otherwise may not have ‘‘act[ed] with the mental state required
for [the] commission of [that] offense,’’ as § 53a-8 (a) expressly requires.
Thus, although § 53a-8 (b) pertains to the sale, delivery or provision of a
firearm, it appears that that subsection merely was intended to cover persons
who might not be subject to accessorial liability under § 53a-8 (a) because
they otherwise lacked the intent necessary for the commission of the sub-
stantive offense. We are not persuaded that our reliance in Davis on § 53a-
8 (a) was improper because we have no reason to believe that § 53a-8 (b)
was intended to limit the extent to which the principles reflected in § 53a-
8 (a) apply to the use of firearms generally and to § 53-202k specifically.
14
In support of his contention that we should overrule Davis, the defen-
dant cites to case law from other jurisdictions declining to apply accessorial
liability principles to sentence enhancement provisions similar to § 53-202k.
See, e.g., People v. Walker, 18 Cal. 3d 232, 235–36, 555 P.2d 306, 133 Cal.
Rptr. 520 (1976); Garringer v. State, 80 Haw. 327, 333–34, 909 P.2d 1142(1996); State v. Thompson, 101 Idaho 430, 438, 614 P.2d 970 (1980); Brooks
v. State, 124 Nev. 203, 210, 180 P.3d 657 (2008); State v. Hicks, 38 Or. App.
97, 100, 589 P.2d 1130 (1979); Commonwealth v. Dickson, 591 Pa. 364,
386–87, 918 A.2d 95 (2007); Key v. State, 563 S.W.2d 184, 185–86 (Tenn. 1978).
However, only Brooks and Key, Nevada and Tennessee cases respectively,
involved an accessorial liability statute that, like § 53a-8 (a), provides that
an accomplice may be prosecuted ‘‘and punished’’ as if he were the principal
offender; (internal quotation marks omitted) Brooks v. State, supra, 210
n.26; accord Key v. State, supra, 187; language that we relied on in Davis
in concluding that § 53a-8 (a) applies to § 53-202k just as it applies to any
other criminal statute. See State v. Davis, supra, 255 Conn. 792. Although
courts in Nevada and Tennessee have reached a different conclusion than
this court did in Davis with respect to the applicability of their accessorial
liability statutes to sentence enhancement provisions, there is nothing in
the reasoning of those cases that calls into question the reasoning in Davis,
which, as we have observed, has not been legislatively overruled or limited.
Furthermore, as the state observes, other state courts have interpreted their
respective sentence enhancement and accomplice statutes in a manner
consistent with our interpretation of §§ 53-202k and 53a-8 (a) in Davis. See,
e.g., Battle v. United States, 515 A.2d 1120, 1128 (D.C. 1986) (‘‘[t]here is
no indication in the [relevant statutory scheme], or any case law of this
jurisdiction, to suggest that the principles enunciated in [the District of
Columbia accessorial liability statute] do not apply to enhance the sentence
of an aider and abettor who assists an armed principal’’); State v. Holmes,
451 So. 2d 1175, 1181 (La. App. 1984) (‘‘Although [the sentence enhancement]
statute is applicable to ‘any person who uses a firearm,’ it must be interpreted
in pari materia with [inter alia, the accessory liability statute]. . . . Although
[the defendant] did not have the gun, he is legally responsible for the person
that did and is subject to punishment under [the sentence enhancement
statute].’’).
15
Davis did not claim that he was unaware that the other participant in
the robbery intended to use a firearm in the commission of the offense.
Indeed, in Davis, there was no basis in fact for such a claim because Davis
and the other gun wielding participant jumped over the restaurant service
counter together, and Davis continued to act in concert with that other
participant while the other participant held a gun to the victim’s head and
demanded that the victim open the restaurant’s safe. State v. Davis, supra,
255 Conn. 784.
16
As the state notes, it was not required to prove that the defendant
intended that the principal would use the firearm, even with respect to the
underlying robbery, because the use of a firearm in the commission of that
offense is an aggravating circumstance that itself requires no proof of intent.
See, e.g., State v. Avila, 223 Conn. 595, 609, 613 A.2d 731 (1992) (when
defendant is charged with first degree robbery as accessory, state is not
required to prove that defendant intended that another participant in robbery
would be armed with weapon because possession of weapon is aggravating
circumstance and intent is not element of that aggravating circumstance).
We note, however, that the defendant also was convicted of conspiracy to
commit robbery in the first degree, which, as the trial court instructed the
jury, does require proof that the defendant intended that another participant
in the robbery would use a firearm in the commission of that offense. See,
e.g., State v. Pond, 315 Conn. 451, 489, A.3d (2015). In light of the
jury’s determination that the defendant conspired to commit robbery in the
first degree, the jury necessarily also found beyond a reasonable doubt that
the defendant had such an intent. Consequently, even if we were persuaded
by the defendant’s interpretation of § 53-202k as requiring proof by the state
that he intended that another participant in the robbery would use a firearm,
the defendant would not be entitled to a new trial because the court’s failure
to so instruct the jury was harmless.
17
The defendant contends that applying § 53-202k to an unarmed accom-
plice, without proof that that accomplice intended that another participant
in the underlying offense would use a firearm in the commission of the
offense, raises ‘‘serious constitutional concerns’’ under State v. Rice, 172
Conn. 94, 101–102, 374 A.2d 128 (1976). This claim is meritless. In Rice, we
concluded that, in a prosecution for knowingly possessing a weapon in a
motor vehicle in violation of General Statutes (Rev. to 1972) § 29-38, mere
proof of the weapon’s presence in the vehicle is insufficient to establish that
the defendant had knowledge of its presence, and requiring the defendant to
prove that he lacked such knowledge would violate his right to have the
state prove every element of the offense beyond a reasonable doubt. See
id., 101–102 and n.2. Rice is inapposite to the present case because, in Rice,
the issue was not what the statute required but, rather, whether the state’s
proof was sufficient under that statute. In the present case, the issue is
what the statute, namely, § 53-202k, requires, and not whether the state’s
proof was sufficient.