State v. Danforth

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STATE OF CONNECTICUT v. KELLY ANN DANFORTH
(SC 19243)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued February 10, 2014—officially released February 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).
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 imprison-
ment when a person uses, or is armed with and threat-
ens 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 sen-
tenced the defendant to a total effective term of impris-
onment 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 undis-
puted that the defendant was unarmed when the rob-
bery 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 judg-
ment 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, ille-
gally, was in possession of a large quantity of such
drugs. The defendant proposed to Flemke and Matz-
dorff 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 mes-
sage to the defendant’s cell phone, instructing the defen-
dant to meet her at a 7-Eleven store in the town of
Andover instead. Flemke, who had taken the defen-
dant’s cell phone with him, responded to the text mes-
sage, 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 discov-
ered that he had stolen D’Aprile’s purse, which con-
tained 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. Addi-
tionally, the state sought a mandatory five year sentence
enhancement pursuant to § 53-202k on the basis of Mat-
zdorff’s use of a firearm during the commission of the
robbery, even though it was undisputed that the defen-
dant 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 inter-
rogatory: ‘‘Has the state proven to all of you unani-
mously 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 evi-
dence was insufficient to support her conviction of
robbery in the first degree as an accessory and conspir-
acy to commit robbery in the first degree. The defendant
contends that the state failed to adduce sufficient evi-
dence to establish that (1) she intentionally aided Matz-
dorff and Flemke in the commission of the robbery,
which was required to support her conviction of rob-
bery 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 sup-
port 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. Matz-
dorff further testified that the defendant called McDon-
ald 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 bed-
room 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 defen-
dant 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, Matz-
dorff 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 arrived home after
the robbery, he entertained the defendant and Flemke
by describing the terrified looks on McDonald’s and
D’Aprile’s faces when he pointed the gun at D’Aprile’s
head. According to Matzdorff, ‘‘[they] all [kind of]
laughed about it.’’
McDonald confirmed much of Matzdorff’s testimony,
explaining that, on the day of the robbery, the defendant
had called her to arrange to meet at a local gas station
so that the defendant could purchase drugs from her.
McDonald also confirmed that, shortly after the rob-
bery, the defendant called her and told her that she had
driven by the 7-Eleven store but did not stop because
of the police presence in the parking lot. The state
also presented cell phone records from the night of the
robbery, which corroborated Matzdorff’s and McDon-
ald’s testimony regarding the timing of the calls and
text messages between the defendant’s cell phone and
McDonald’s cell phone.
‘‘We review a claim of evidentiary insufficiency by
applying a two-part test. First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt. . . . [I]n viewing evi-
dence which could yield contrary inferences, the jury
is not barred from drawing those inferences consistent
with guilt and is not required to draw only those infer-
ences consistent with innocence. The rule is that the
jury’s function is to draw whatever inferences from the
evidence or facts established by the evidence it deems
to be reasonable and logical.’’ (Internal quotation marks
omitted.) State v. Fourtin, 307 Conn. 186, 197–98, 52
A.3d 674 (2012).
Additionally, ‘‘proof beyond a reasonable doubt does
not mean proof beyond all possible doubt . . . nor
does proof beyond a reasonable doubt require accep-
tance of every hypothesis of innocence posed by the
defendant that, had it been found credible by the [jury],
would have resulted in an acquittal. . . . On appeal,
we do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis of
innocence. We ask, instead, whether there is a reason-
able view of the evidence that supports the jury’s verdict
of guilty. . . . Thus, [w]e do not sit as a thirteenth juror
who may cast a vote against the verdict based [on] our
feeling that some doubt of guilt is shown by the cold
printed record. . . . Rather, we must defer to the jury’s
assessment of the credibility of the witnesses based on
its firsthand observation of their conduct, demeanor
and attitude.’’ (Citation omitted; internal quotation
marks omitted.) State v. Patterson, 276 Conn. 452, 461,
886 A.2d 777 (2005).
A
We first address the defendant’s claim that the evi-
dence was insufficient to support her conviction of
robbery in the first degree as an accessory because
the state failed to prove that she intentionally aided
Matzdorff and Flemke in the commission of that
offense. The defendant argues that the evidence was
insufficient to establish that she assisted in the commis-
sion of the robbery because, although there was proof
that she initially had arranged to meet McDonald at the
gas station, it was undisputed that Flemke arranged to
meet McDonald at the 7-Eleven store after McDonald
chose not to stop at the gas station in Bolton. The
defendant further contends that her telephone call to
McDonald following the robbery, to explain why she
had not stopped at the 7-Eleven store, did not aid in
the commission of the offense because the crime had
been committed before she made that call.
To establish the defendant’s guilt with respect to the
offense of robbery in the first degree as an accessory
under §§ 53a-134 (a) (4) and 53a-8 (a), the state was
required to prove: (1) that a robbery in the first degree
was committed; see General Statutes §§ 53a-133 and
53a-134; (2) that the defendant had the intent to commit
the robbery; see, e.g., State v. Avila, 223 Conn. 595,
603–604, 613 A.2d 731 (1992); and (3) that the defendant
‘‘solicit[ed], request[ed], command[ed], importune[ed]
or intentionally aid[ed]’’ in the commission of the
offense.11 General Statutes § 53a-8 (a). ‘‘[A] conviction
under § 53a-8 requires [the state to prove the defen-
dant’s] dual intent, [first], that the accessory have the
intent to aid the principal and [second] that in so aiding
he intend to commit the offense with which he is
charged.’’ (Emphasis omitted; internal quotation marks
omitted.) State v. Foster, 202 Conn. 520, 525–26, 522
A.2d 277 (1987). ‘‘This is because accessorial liability
is designed to punish one who intentionally aids another
in the commission of a crime and not one whose inno-
cent acts in fact aid one who commits an offense. . . .
Mere presence as an inactive companion, passive acqui-
escence, or the doing of innocent acts which may in
fact aid the one who commits the crime must be distin-
guished from the criminal intent and community of
unlawful purpose [that is] shared by one who knowingly
and wilfully assists the perpetrator of the offense in the
acts which prepare for, facilitate or consummate it.’’
(Internal quotation marks omitted.) State v. Gonzalez,
311 Conn. 408, 421, 87 A.3d 1101 (2014).
We agree with the state that the evidence amply sup-
ported the jury’s finding that the defendant solicited
Matzdorff to commit the robbery, and that she intention-
ally aided in the commission of the offense by arranging
to meet McDonald at a gas station, by allowing Matz-
dorff and Flemke to use her car to drive to that location,
and by allowing Flemke to use her cell phone at or
around the time of the robbery. Indeed, according to
Matzdorff, the defendant hatched the plan to rob
McDonald and proposed that Matzdorff carry it out. All
of this evidence, if credited by the jury, was more than
sufficient to support a finding that the defendant solic-
ited Matzdorff to commit the robbery and wilfully
assisted him in carrying it out. See, e.g., State v. Harris,
32 Conn. App. 831, 841, 632 A.2d 50 (1993) (‘‘ ‘solicits,
requests, commands, importunes or intentionally aids’
requires only an asking or insistence that an act be
done’’), appeal dismissed, 230 Conn. 347, 644 A.2d 911(1994). The defendant’s argument that she did not aid
in the robbery because it was Flemke, posing as her,
who arranged to meet McDonald at the 7-Eleven store
after McDonald chose not to stop at the gas station in
Bolton, ignores the fact that McDonald would not have
been in contact with Flemke in the first place if the
defendant had not lured McDonald to the gas station
and given Flemke her cell phone so that he could com-
municate with McDonald while pretending to be the
defendant. See State v. Haddad, 189 Conn. 383, 399–400,
456 A.2d 316 (1983) (there was sufficient evidence to
support defendant’s conviction of burglary and attempt
to commit larceny as accessory even though defendant
was not present during commission of offenses, when
evidence established that he devised plan, solicited per-
petrators to carry out offenses, and encouraged them
to proceed with plan); State v. Conde, 67 Conn. App.
474, 476–77, 487–89, 787 A.2d 571 (2001) (evidence that
gang leader created conditions to facilitate murder by
approving killing and ensuring that certain gang mem-
bers would not retaliate was sufficient to support con-
viction for murder as accessory), cert. denied, 259 Conn.
927, 793 A.2d 251 (2002). There is no merit to the defen-
dant’s contention that the evidence was insufficient to
support her conviction of robbery in the first degree
as an accessory.
B
We next consider the defendant’s contention that the
evidence was insufficient to support her conviction of
conspiracy to commit robbery in the first degree. The
defendant argues that, in order to establish her guilt
with respect to that crime, the state was required to
prove that she had the specific intent to bring about
all of the elements of the underlying offense, including
that she intended for Matzdorff to use a firearm during
the robbery. See General Statutes § 53a-134 (a) (4). The
defendant further contends that the evidence was insuf-
ficient to support such a finding because Matzdorff did
not testify that the defendant was present when Flemke
handed him the gun or that she acquiesced in Matz-
dorff’s use of the gun during the robbery.
‘‘To establish the crime of conspiracy under § 53a-48
. . . it must be shown that an agreement was made
between two or more persons to engage in conduct
constituting a crime and that the agreement was fol-
lowed by an overt act in furtherance of the conspiracy
by any one of the conspirators. The state must also
show intent on the part of the accused that conduct
constituting a crime be performed.’’ (Internal quotation
marks omitted.) State v. Booth, 250 Conn. 611, 657–58
737 A.2d 404 (1999), cert. denied sub nom. Brown v.
Connecticut, 529 U.S. 1060, 120 S. Ct. 1568, 146 L. Ed.
2d 471 (2000). ‘‘Conspiracy 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. . . .
Thus, [p]roof of a conspiracy to commit a specific
offense requires proof that the conspirators intended
to bring about the elements of the conspired offense.’’
(Citation omitted; internal quotation marks omitted.)
State v. Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005).
In the present case, the state alleged that the object
of the conspiracy was robbery in the first degree in
violation of § 53a-134 (a) (4), the elements of which
require proof that a ‘‘participant in the crime . . . dis-
plays or threatens the use of what he represents by his
words or conduct to be a pistol, revolver, rifle, shotgun,
machine gun or other firearm . . . .’’ Thus, in order to
establish that the defendant was guilty of the conspiracy
charge, the state was required to prove that the defen-
dant agreed that Matzdorff would use, display or
threaten the use of a firearm during the robbery. See
State v. Pond, 315 Conn. 451, 489, A.3d (2015)
(to prove that defendant was guilty of conspiracy to
commit second degree robbery, state was required to
prove that defendant agreed that weapon would be used
in commission of that offense). We previously have held
that ‘‘the existence of a formal agreement between the
conspirators need not be proved 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. . . . [T]he requisite agreement
or confederation may be inferred from proof of the
separate acts of the individuals accused as coconspira-
tors and from the circumstances surrounding the com-
mission of these acts. . . . Further, [c]onspiracy can
seldom be proved by direct evidence. It may be inferred
from the activities of the accused persons.’’ (Internal
quotation marks omitted.) State v. Millan, 290 Conn.
816, 826, 966 A.2d 699 (2009). Finally, ‘‘[b]ecause direct
evidence of the accused’s state of mind is rarely avail-
able . . . intent is often inferred from conduct . . .
and from the cumulative effect of the circumstantial
evidence and the rational inferences drawn therefrom.’’
(Internal quotation marks omitted.) State v. Otto, 305
Conn. 51, 66, 43 A.3d 629 (2012).
Construing the evidence in the light most favorable
to the state, we conclude that it is readily apparent that
the evidence supported a finding that the defendant
intended for Matzdorff to use a firearm during the rob-
bery. Although it is true, as the defendant argues, that
Matzdorff did not expressly testify that the defendant
was present at the precise moment when Flemke
handed him the gun, it was reasonable to infer from
Matzdorff’s testimony that the defendant was present
at that time and that, in any event, she knew full well
that Matzdorff would use the gun to rob McDonald. For
example, when the assistant state’s attorney (prosecu-
tor) asked Matzdorff whether there was any discussion
as to how the robbery would be committed, he stated:
‘‘Yeah. There was a lot . . . of discussion about how
we would do it to get away with it because, obviously,
I didn’t want to get caught [because] I would be the
one [doing] most of the time for the crime.’’ The prose-
cutor then asked Matzdorff: ‘‘And . . . were all three of
you involved in this discussion, or only certain parties?’’
Matzdorff responded: ‘‘Yeah, all three of us. . . . [It]
was a collective . . . agreement.’’ The prosecutor also
asked Matzdorff: ‘‘And, out of that discussion, did you
come up with a plan?’’ Matzdorff responded: ‘‘Yes, we
did.’’ After Matzdorff generally described the plan, the
prosecutor asked him, ‘‘[a]nd, how were you supposed
to rob them?’’ Matzdorff responded: ‘‘I had [an] . . .
airsoft pellet gun. . . . It was [Flemke’s], I guess. . . .
[He and the defendant] had pulled it out before, shot
it a couple of times. But it wasn’t something that was
out all the time [because] we had a lot of young kids
around the house all the time. . . . It was in their
room.’’ Matzdorff further explained that, while they
were planning the robbery, Flemke had gone to the
bedroom that he shared with the defendant to retrieve
the gun, as well as a ski mask for Matzdorff to wear
during the robbery. Finally, the fact that the defendant
laughed as Matzdorff was recounting the terrified looks
on McDonald’s and D’Aprile’s faces when he pointed
the gun at D’Aprile’s head is wholly consistent with her
knowledge that the gun would be used.
We agree with the state that this testimony, combined
with Matzdorff’s testimony regarding the defendant’s
central role in planning the robbery, was more than
sufficient to support a finding that the defendant was
aware that a gun would be used to commit the offense.
See, e.g., State v. Millan, supra, 290 Conn. 828–30 (there
was sufficient evidence that agreement included use of
knife when coconspirators continued with assault after
one of them pulled out knife); State v. Crosswell, 223
Conn. 243, 256, 612 A.2d 1174 (1992) (fact that defendant
stood by silently when gun was displayed was sufficient
to support finding that he agreed that gun would be
used during robbery). Indeed, to conclude otherwise
would effectively require the state to adduce testimony
that each coconspirator expressly agreed to every act
that was part of the conspiracy. Such a requirement,
however, runs counter to well established principles of
conspiracy law. Indeed, we repeatedly have recognized
that, ‘‘[b]ecause of the secret nature of conspiracies, a
[conspiracy] conviction usually is based on circumstan-
tial evidence. . . . Consequently, it is not necessary
to establish that the defendant and his coconspirators
signed papers, shook hands, or uttered the words we
have an agreement. . . . [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.’’12 (Citation omitted; internal quota-
tion marks omitted.) State v. Patterson, supra, 276
Conn. 462. Accordingly, we reject the defendant’s claim
that the jury reasonably could not have found that she
intended that Matzdorff would use a gun to commit
the robbery.
II
The defendant next claims that the trial court improp-
erly concluded that she was subject to a sentence
enhancement under § 53-202k. Specifically, the defen-
dant claims that § 53-202k does not apply to unarmed
accomplices and that, because it is undisputed that she
was not armed during the commission of the robbery,
she could not be subject to a sentence enhancement
under § 53-202k. Although acknowledging that we
rejected an identical claim in State v. Davis, 255 Conn.
782, 784, 792, 772 A.2d 559 (2001), the defendant con-
tends that we should overrule our holding in that case.
Alternatively, the defendant urges us to limit the 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 by
another participant in the underlying felony.
The defendant cannot prevail on this claim in light
of our decision today in the companion case of State
v. Flemke, 315 Conn. 500, A.3d (2015). In particu-
lar, in Flemke, we reaffirmed our conclusion in Davis
that the language of § 53-202k, when read in light of
the principles codified in the accessory statute, § 53a-
8 (a), does not require proof that an accomplice actually
used, displayed or threatened to use a firearm in the
commission of a class A, B or C felony. See id., 511.
We also declined to limit Davis as the defendant in the
present case advocates because the reasoning on which
our holding in Davis was founded, namely, that an
accomplice and principals are to be treated identically
for all purposes, including sentence enhancement under
§ 53-202k, negates the contention that an unarmed
accomplice is entitled to a jury finding that he intended
that another participant in the robbery would use a
firearm. See id., 515–17. Thus, in light of our decision
in Flemke, the defendant cannot prevail on her claim
under § 53-202k.
III
The defendant’s final contention is that the trial court
improperly instructed the jury concerning the state’s
burden of proof. Specifically, the defendant challenges
three separate statements that the trial court made in
explaining the meaning of reasonable doubt: (1) that a
reasonable doubt is ‘‘a real doubt, an honest doubt’’;
(2) that a reasonable doubt is ‘‘such a doubt as, in the
serious affairs that concern you, you would heed’’; and
(3) that ‘‘[t]he meaning of reasonable doubt can be
arrived at by emphasizing the word reasonable.’’ The
defendant also argues that the ‘‘cumulative effect’’ of
these instructions diluted the state’s burden of proof
and deprived her of a fair trial. Although the defendant
acknowledges that this court repeatedly has rejected
these claims in prior cases; see, e.g., State v. Winfrey,
302 Conn. 195, 218–19, 24 A.3d 1218 (2011); State v.
Mark R., 300 Conn. 590, 616–17, 17 A.3d 1 (2011); State v.
Bowman, 289 Conn. 809, 811 n.2, 960 A.2d 1027 (2008),
overruled in part on other grounds by State v. Elson,
311 Conn. 726, 91 A.3d 862 (2014); State v. Patterson,
supra, 276 Conn. 491 n.26; she explains that she has
raised them to preserve them for future federal habeas
review. The state argues that the defendant waived her
claims under State v. Kitchens, 299 Conn. 447, 482–83,
10 A.3d 942 (2011),13 by failing to object to the chal-
lenged jury instructions after the trial court provided
the parties with copies of its proposed instructions and
afforded the parties a meaningful opportunity to review
them. Alternatively, the state argues that the defendant
has provided no reason why we should overrule our
precedent rejecting identical claims of instructional
impropriety.
It is unnecessary to decide whether the defendant
waived her claim under Kitchens because, even if she
did not, she has offered no convincing reason why we
should reconsider our prior case law. ‘‘Moreover, as in
those prior cases, we see no reasonable possibility that
the challenged language, when read in the context of
the entire charge regarding reasonable doubt, misled
the jury in its understanding of the state’s burden of
proving the defendant’s guilt beyond a reasonable
doubt.’’ State v. Winfrey, supra, 302 Conn. 219.
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 at 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
Although § 53-202k is a sentence enhancement provision and not a sepa-
rate crime, and ‘‘does not expressly delegate to the jury the task of determin-
ing 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.’’
State v. Patterson, 276 Conn. 452, 477, 886 A.2d 777 (2005).
6
The trial court sentenced the defendant to a term of imprisonment of
one year on the conviction of robbery in the first degree as an accessory,
a consecutive five year term of imprisonment under § 53-202k, and a term
of imprisonment of six years on the conviction of conspiracy to commit
robbery in the first degree. The six year term on the conspiracy count is to
run concurrently with the sentences imposed for the accessory count and
under § 53-202k. The six year term of imprisonment is to be followed by
ten years of special parole.
7
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.
8
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.
9
The defendant was tried with Flemke, who also was convicted of robbery
in the first degree as an accessory and conspiracy to commit robbery in
the first degree. See State v. Flemke, 315 Conn. 500, 504–505, A.3d
(2015). In light of the jury’s finding that a firearm had been used in the
commission of the robbery, the court determined that Flemke also was
subject to a sentence enhancement under § 53-202k. Id., 502–503.
10
The defendant filed motions for judgment of acquittal at the close of
the state’s case, at the close of evidence, and after the jury returned its
verdict. Although the state notes that the defendant did not challenge the
sufficiency of the evidence on the specific grounds that she raises on appeal,
it concedes that, even if the defendant’s claims were not properly preserved,
they are nonetheless reviewable under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). See, e.g., State v. Adams, 225 Conn. 270, 275–76
n.3, 623 A.2d 42 (1993) (unpreserved claims of evidentiary insufficiency are
reviewable on appeal).
11
We note that the defendant does not claim that there was insufficient
evidence to support a finding that Matzdorff committed the crime of robbery
in the first degree, nor does she claim that there was insufficient evidence
to support a finding that she ‘‘act[ed] with the mental state required for
commission of an offense,’’ as § 53a-8 (a) requires. We therefore focus our
discussion on the third element of § 53a-8 (a), namely, whether there was
sufficient evidence to establish that the defendant ‘‘solicit[ed], request[ed],
command[ed], importune[ed] or intentionally aid[ed]’’ in the commission of
the offense.
12
As we explained in State v. Pond, supra, 315 Conn. 451, and contrary
to the view expressed by the concurring justice, our decision in Pond is
fully consistent with these principles concerning the law of conspiracy and
the manner in which a conspiracy may be proved.
13
In Kitchens, this court concluded that, ‘‘when the trial court provides
counsel with a copy of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from counsel regarding
changes or modifications and counsel affirmatively accepts the instructions
proposed or given, the defendant may be deemed to have knowledge of any
potential flaws therein and to have waived implicitly the constitutional right
to challenge the instructions on direct appeal.’’ State v. Kitchens, supra,299 Conn. 482–83.