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State v. Turner

Court of Appeals of Connecticut

June 25, 2019

STATE OF CONNECTICUT
v.
ELIZABETH K. TURNER

          Argued January 11, 2019

         Procedural History

         Substitute information, in the first case, charging the defendant with the crimes of conspiracy to commit larceny in the third degree and accessory to larceny in the third degree, and substitute information, in the second case, charging the defendant with three counts of the crime of robbery in the first degree, two counts of the crime of felony murder, and with the crimes of criminal attempt to possess narcotics, larceny in the third degree, burglary in the third degree, hindering prosecution in the second degree, forgery in the second degree, conspiracy to commit robbery in the first degree, and tampering with evidence, and substitute information, in the third case, charging the defendant with the crimes of larceny in the second degree, using a motor vehicle without the owner's permission, and forgery in the second degree, brought to the Superior Court in the judicial district of Waterbury, where the cases were consolidated; thereafter, the matter was tried to the jury before Cremins, J.; verdicts and judgments of guilty, from which the defendant appealed. Affirmed.

          Mark Rademacher, assistant public defender, for the appellant (defendant).

          Ronald G. Wetter, senior assistant state's attorney, with whom, on the brief, were Maureen Piatt, state's attorney, and Terence D. Mariani and Cynthia S. Sera-fini, senior assistant state's attorneys, for the appellee (state).

          Lavine, Prescott and Bright, Js.

          OPINION

          LAVINE, J.

         This case tragically exemplifies the adage that no good deed goes unpunished. In February, 2012, Donna Bouffard invited a homeless couple, the defendant, Elizabeth K. Turner, and her husband, Claude Turner, to live with her in her home.[1] In June of the same year, Turner brutally murdered both Bouffard and her adult son, Michael Perkins, in Bouffard's Watertown home. The defendant appeals from the judgments of conviction, rendered after a jury trial, of two counts of felony murder in violation of General Statutes § 53a-54c, [2] one count of criminal attempt to possess narcotics in violation of General Statutes § 53a-49 and General Statutes (Rev. to 2011) § 21a-279 (a), one count of larceny in the third degree in violation of General Statutes § 53a-124 (a), one count of burglary in the third degree in violation of General Statutes § 53a-103 (a), one count of hindering prosecution in the second degree in violation of General Statutes § 53a-166 (a), two counts of forgery in the second degree in violation of General Statutes § 53a-139 (a) (1), two counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (1), one count of robbery in the first degree in violation of § 53a-134 (a) (3), one count of conspiracy to commit robbery in the first degree in violation of General Statutes §§ 53a-48 (a) and 53a-134 (a), one count of tampering with evidence in violation of General Statutes (Rev. to 2011) § 53a-155 (a) (1), one count of conspiracy to commit larceny in the third degree in violation of §§ 53a-48 and 53a-124, one count of accessory to larceny in the third degree in violation of General Statutes §§ 53a-8 and 53a-124, one count of larceny in the second degree in violation of General Statutes § 53a-123, and one count of using a motor vehicle without the owner's permission in violation of General Statutes § 53a-ll9b. On appeal, the defendant claims that (1) the trial court improperly allowed the jury to consider a legally invalid but factually supported theory for the robbery and felony murder convictions, specifically, that a larceny by false pretenses that is part of a continuous course of larcenous conduct culminating in a murder can provide the predicate felony for a robbery and felony murder, and (2) there was insufficient evidence to support the conviction of attempted possession of narcotics. We affirm the judgments of the trial court.

         The record discloses the following facts that the jury reasonably could have found on the basis of the evidence presented at trial. In February, 2012, Christine Perkins, Bouffard's daughter, and Christine Perkins' then husband, David Ortiz, met the Turners at the Water-bury mall. Christine Perkins recognized Turner from previously having seen him in a Salvation Army food line. As the defendant was noticeably pregnant at the time, Christine Perkins and Ortiz invited her and Turner to stay with them in Bouffard's home. As a result, the Turners moved into Bouffard's home. Eventually, the relationship between the Turners and Bouffard deepened, and the defendant and Turner started calling Bouffard, "mom."

         In April, 2012, Bouffard received a disability settlement of $13, 000, which she put in an envelope that she hid under her mattress. When money began to disappear from the envelope, she moved it into a safe. Her relationship with the Turners soured, and Bouffard accused the defendant of stealing from her. On April 19, 2012, the same day that she left for vacation, Bouffard served eviction papers on Christine Perkins and Ortiz so that Michael Perkins, who had moved out of her house due to a conflict with Ortiz, could return to the home.

         At the end of April, 2012, upon returning from vacation, Bouffard noticed that the safe had been moved and pried open, and approximately $6000 was missing. Bouffard accused the defendant of taking the money. The defendant later admitted to police that she had told Turner to take money from under the mattress and from the safe. The defendant explained that Turner did everything for her, that he did all he could to try to keep her happy, that she and Turner used the stolen money to buy drugs, and that she was "in her glory."

         As indicated, the relationship between Bouffard and the Turners deteriorated. The defendant, on more than one occasion, expressed her desire to put rat poison into Bouffard's and Michael Perkins' food because they were "always in her business." The defendant also mentioned to a stranger that she and Turner didn't like Bouffard and Michael Perkins. After Bouffard had been killed, the defendant explained to police that Bouffard would lecture her about how she, Bouffard, was unhappy, which the defendant described as "[condescending. Poor me, poor me. . . . Everyone needs to wait on me." The defendant admitted to having arguments with Bouffard, and that when Bouffard would start "running her mouth," the defendant would "usually go upstairs because [she didn't] want to hear it because [she would] cuss [Bouffard] out and make her cry." Bouffard asked the defendant and Turner to leave in May, 2012, but they did not.

         In June, 2012, only Bouffard, Michael Perkins, Turner, and the defendant lived in the home. On June 28, 2012, the defendant directed Turner to tell Bouffard that she was in jail and needed $50 for bail, which was untrue. After Bouffard gave Turner the $50, Turner and the defendant used the money to buy drugs. The defendant and Turner performed the ruse one more time that evening, with Turner explaining to Bouffard that the bond was actually $100, and he needed another $50 to get the defendant out of jail. Bouffard gave Turner the additional $50.[3]

         When the Turners returned to Bouffard's home in the early hours of June 29, 2012, Michael Perkins was asleep on the couch and Bouffard was awake in her bedroom. The defendant later stated to police that Bouffard was "running her mouth" and "she didn't want to listen to [Bouffard] run her mouth, so she went upstairs, but she was curious about what might be taking place downstairs, so she lowered the sound on the television so that she could listen in." She heard some banging and Michael Perkins yelling, and went downstairs. She saw Turner stabbing Michael Perkins in the stomach, but did not protest or intercede. Michael Perkins was saying, "please stop, I love you." Bouffard did not come out of her room, which led the defendant to believe that Turner had already killed her. Turner told the defendant to go back upstairs, which she did. A short while later, Turner went upstairs and handed the defendant Bouf-fard's purse. The defendant went through the purse and took money, gift cards, and the keys to Bouffard's Lincoln town car. The defendant went downstairs and walked past the lifeless bodies of Bouffard and Michael Perkins, each with numerous stab wounds, to go into Bouffard's room and look for the paperwork for Bouffard's car.

         The Turners took Bouffard's car and picked up Anthony Acosta, a friend of Turner's; Turner stopped to buy marijuana and cocaine. They returned to the house, at which point Acosta saw the bodies of Bouffard and Michael Perkins lying on the floor. The three proceeded to use the drugs. The defendant told Acosta that she regretted telling Turner to kill the victims. When the defendant was rifling through the victims' belongings, she discovered that Bouffard had been served with an eviction notice, and commented to Acosta, "good for them. They deserved it."

         In the following days, the Turners, accompanied by Acosta, sold Michael Perkins' scooter, guitar, and Wii system, as well as Bouffard's camper, phone, and jewelry. They also attempted to sell a television and took a gun from Bouffard's home. The defendant later admitted to police that both she and Turner had the idea to sell Bouffard's camper and other items. The defendant also made an effort to take money out of Bouffard's bank account by means of a check that she had forged. She additionally took Michael Perkins' debit card, and because she knew his pin number, took money out of his account and got cash back on items purchased with the card. The Turners continued to use Bouffard's Lincoln town car and ultimately sold the car for $400. The defendant spent the money she procured from the sale of Bouffard's and Michael Perkins' possessions on food, hotels, and cocaine.

         The Turners then traveled to Baltimore, where they were arrested. The defendant was interviewed by Watertown police in Baltimore, after which the Turners were extradited to Connecticut. After a follow-up inter- view with police in Watertown, the defendant was seen kissing Turner through the bars of her cell. While in prison awaiting trial, she wrote a letter to a friend in which she acknowledged that she "made a huge mistake" that resulted in "lives [being] lost." Following a jury trial, the defendant was sentenced to a total effective sentence of sixty years. Additional facts, as they reasonably could have been found by the jury, will be set forth as necessary.

         I

         The defendant has conflated some of her arguments and legal theories in a way that requires us to recharacterize them. The defendant claims that her due process rights were violated because the trial court improperly allowed the jury to base a guilty verdict on a legally invalid but factually supported theory that a completed larceny by false pretenses[4] that precedes a use of force, and is part of a continuous course of larcenous conduct, can be the predicate felony for robbery and felony murder. The larceny by false pretenses accomplished by the bail scheme ended prior to the murders, the defendant contends, and was not accompanied by force. Consequently, the bail scheme lacked a nexus to the murders. The essence of the defendant's claim is that the trial court improperly instructed the jury in this regard, and, as such, the defendant's robbery and felony murder convictions may have been predicated on an inadequate legal theory that was purportedly argued by the state.[5]The larceny by false pretenses, the defendant contends, could not have provided the basis for a predicate felony for a robbery because it was not accompanied by force, but the court's charge, in light of the state's position during trial and in its closing argument, mistakenly created the impression that it could.[6]

         Although it is possible to construe the defendant's claim that the court permitted the state to make a legally invalid but factually supported claim to be, in reality, a camouflaged claim of prosecutorial impropriety, the defendant specifically disavows that she is raising a prosecutorial impropriety claim and does not provide briefing on prosecutorial impropriety. Similarly, the defendant's claim could be construed that the court abused its discretion by allowing the state to make an improper closing argument, but, again, the defendant has not briefed such a claim. Consequently, any claim that the court improperly allowed the state's argument is, therefore, inadequately briefed and will not be considered. Appellate courts "are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than [mere] abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed." (Internal quotation marks omitted.) McClancy v. Bank of America, N.A., 176 Conn.App. 408, 414, 168 A.3d 658, cert, denied, 327 Conn. 975, 174 A.3d 195 (2017). Thus, we are left with the defendant's claim that the court erred in its instruction to the jury.

         Because the jury instruction included a definition of larceny by false pretenses, the defendant argues that the jury might have found her guilty of robbery and felony murder under the misguided understanding that a completed larceny by false pretenses that preceded the use of force can be the predicate crime of a robbery and felony murder. Thus, the defendant in essence makes an instructional error claim and argues that her conviction may have resulted from a legally invalid but factually supported theory. Citing Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), [7]the defendant argues that the verdict must be reversed if this court cannot be certain that the jury found her guilty under a valid legal theory. In response, the state argues that the defendant is really challenging a factually unsupported instruction, not a legally invalid one. Consequently, the holding in Stromberg does not apply. We agree with the state.[8]

         Before turning to the defendant's principal claim, it is necessary to discuss the crimes of robbery and felony murder. "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." General Statutes § 53a-133.

         "Felony murder[9] occurs when, in the course of and in furtherance of another crime, one of the participants in that crime causes the death of a person who is not a participant in the crime. . . . The two phrases, in the course of and in furtherance of, limit the applicability of the statute with respect to time and causation." (Footnote added; internal quotation marks omitted.) State v. Johnson, 165 Conn.App. 255, 290, 138 A.3d 1108, cert, denied, 322 Conn. 904, 138 A.3d 933 (2016).

         "In order to obtain a conviction for felony murder the state must prove, beyond a reasonable doubt, all the elements of the statutorily designated underlying felony, and in addition, that a death was caused in the course of and in furtherance of that felony." (Internal quotation marks omitted.) State v. Lewis, 245 Conn. 779, 786, 717 A.2d 1140 (1998). "The requirement that the death be 'in the course of the felony focuses on the temporal relationship between the killing and the underlying felony." State v. Cooke, 89 Conn.App. 530, 536, 874 A.2d 805, cert, denied, 275 Conn. 911, 882 A.2d 677 (2005). "[I]f the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be in the course of the robbery or the attempted robbery within the meaning of [§ 53a-133]." (Emphasis added; internal quotation marks omitted.) State v. Ghere, 201 Conn. 289, 297, 513 A.2d 1226 (1986).

         The defendant argues that a larceny by false pretenses could not be a predicate felony for robbery or felony murder because no force was used to obtain the property. Once the property was obtained, the defendant argues, the larceny by false pretenses was complete and any subsequent use of force would not have a nexus to the larceny. According to the defendant, the theory that the larceny by false pretenses could support the felony murder and robbery conviction was not legally valid and, thus, her convictions must be reversed. The state argues that, at most, the facts of this case would not support the legal theory, but that that the theory itself is legally valid. The state argues that because there were other facts that the defendant concedes support the felony murder and robbery convictions, the defendant's claim fails.

         The United States Supreme Court and our Supreme Court have discussed the significant difference between a legally invalid basis and a factually unsupported basis for a conviction. In Griffin v. United States, 502 U.S. 46, 47-48, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), a jury instruction included a charge of defrauding the Drug Enforcement Administration despite the lack of supporting evidence. When analyzing how a reviewing court should treat such an instructional error, the United States Supreme Court rejected the argument that Stromberg should apply and limited Stromberg's application by stating that" [the] language, and the holding of Stromberg, do not necessarily stand for anything more than the principle that, where a provision of the Constitution forbids conviction on a particular ground, the constitutional guarantee is violated by a general verdict that may have rested on that ground." Id., 53.

         Furthermore, Griffin distinguished the situation before it, where the instruction was challenged for including a theory of liability that was not supported by the evidence, from situations where one of the possible grounds for conviction was legally insufficient, such as in Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds by Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), where a jury instruction included a charge that was barred by a statute of limitations. Grif-fin\. United States, supra, 502 U.S. 55-56. The Supreme Court reasoned, that "[j]urors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law- whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory, since jurors are well equipped to analyze the evidence . . . ." (Citation omitted; emphasis omitted.) Id., 59. The Supreme Court concluded that "if the evidence is insufficient to support an alternative legal theory of liability, it would generally be preferable for the court to give an instruction removing that theory from the jury's consideration. The refusal to do so, however, does not provide an independent basis for reversing an otherwise valid conviction." Id., 60.

         Building on Griffin, our Supreme Court in State v. Chapman,229 Conn. 529, 643 A.2d 1213 (1994), explained that when a court charges the jury on a legally adequate theory for which there was no evidence, "[t]he jurors . . . were in a position to be able to evaluate the testimony presented and to assess whether the charged theory was supported by the evidence." Id., 540. Our Supreme Court noted that "a factual insufficiency regarding one statutory basis, which is accompanied by a general ...


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