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 ...