State v. Biggs
| Decision Date | 26 September 2017 |
| Docket Number | AC 38528 |
| Citation | 176 Conn.App. 687,171 A.3d 457 |
| Court | Connecticut Court of Appeals |
| Parties | STATE of Connecticut v. Frank Edward BIGGS |
David B. Bachman, assigned counsel, for the appellant (defendant).
Rita M. Shair, senior assistant state's attorney, with whom were Brian Preleski, state's attorney, and, on the brief, David Clifton, assistant state's attorney, for the appellee (state).
Sheldon, Prescott and Bear, Js.
The defendant, Frank Edward Biggs, appeals from the judgment of conviction rendered against him following a jury trial in the judicial district of New Britain on charges of larceny in the second degree as an accessory in violation of General Statutes §§ 53a–123 (a) (3)1 and 53a–8 (a) ; conspiracy to commit larceny in the second degree in violation of General Statutes §§ 53a–48 (a) and 53a–123 (a) (3) ; larceny in the third degree as an accessory in violation of General Statutes §§ 53a–124 (a) (2)2 and 53a–8 (a) ; conspiracy to commit larceny in the third degree in violation of General Statutes §§ 53a–48 (a) and 53a–124 (a) (2) ; and engaging police in pursuit in violation of General Statutes § 14–223 (b). After the jury returned its guilty verdict, the trial court found the defendant guilty on additional charges of being a persistent felony offender in violation of General Statutes (Rev. to 2011) § 53a–40 (f) and being a persistent serious felony offender in violation of General Statutes § 53a–40 (c), upon his plea of nolo contendere to those charges under a part B information. The defendant ultimately was given a separate sentence on each of the seven charges for a total effective term of nine years of incarceration followed by five years of special parole.3
The defendant claims on appeal that the court (1) abused its discretion and violated his right to an impartial jury by failing to conduct an adequate investigation as to a claim of juror misconduct that he brought to its attention on the date originally scheduled for his sentencing and (2) violated his constitutional right against double jeopardy by imposing separate sentences upon him on two counts of conspiracy that were based upon a single conspiratorial agreement. The state disputes the defendant's juror misconduct claim, contending that the court adequately investigated and properly disposed of that claim. It agrees with the defendant, however, that the court violated his right against double jeopardy by imposing separate sentences upon him on two counts of conspiracy that were based upon a single conspiratorial agreement. We agree with the state, and therefore we affirm the trial court's judgment on all charges except for conspiracy to commit larceny in the third degree, and remand this case to the court with direction that the defendant's sentence and resulting conviction on that charge be vacated pursuant to State v. Polanco , 308 Conn. 242, 259–60, 61 A.3d 1084 (2013).
On the basis of the evidence presented at trial, the jury reasonably could have found the following facts. During the early afternoon of August 27, 2011, James Peterson, the eighty-eight year old uncle of the owner of Hooters Restaurant in Wethersfield, transported two bags of daily proceeds from Hooters to the TD Bank in Berlin to make a cash deposit in the amount of $7242. In the parking lot outside of the bank, Peterson encountered and briefly chatted with a friend, Dean Clemens. After their conversation was over, and while Clemens was returning to his truck, he saw a man in the entrance to the bank grab the deposit bags in from Peterson and run away. Peterson first screamed at the man, who ran north, around the bank, and then cut through the neighboring Dunkin' Donuts parking lot. Thereafter, while attempting to follow the man in his truck, Clemens saw the man enter the passenger side of a newer black or dark blue Cadillac in the parking lot adjacent to the Dunkin' Donuts parking lot. As soon as the man entered the Cadillac, Clemens saw it speed out of the parking lot and turn east onto Farmington Avenue. Due to traffic in the bank parking lot, Clemens was initially unable to follow the Cadillac directly. He did, however, immediately notify the local police of what he had just seen by calling 911. Clemens told the 911 operator that there had been a "bank robbery" at the TD Bank and he was then pursuing the robbers' getaway vehicle. After accelerating to catch up to the Cadillac, he eventually was able to see its license plate number, which he relayed to the 911 operator. The license plate was registered to Whitney L. Johnson of Hamden. When Clemens was stopped behind the Cadillac at a stop light, he saw someone sit up in its backseat. He also noticed that the driver of the Cadillac was wearing a Boston Red Sox hat. After police officers joined in the pursuit of the Cadillac, Clemens returned to the bank and gave a statement to the officers from the Berlin Police Department who had responded to that location after the incident occurred.
Kelly Waas was getting coffee at the Dunkin' Donuts next to TD Bank when the incident occurred. While seated in her car in the drive-through lane, she saw a dark Cadillac driving back and forth in the adjacent parking lot. She noticed that the driver of the Cadillac was a black man with a husky build who was wearing a red baseball cap. She then saw a young black man run past her car and get into the rear passenger seat of the Cadillac, after which the Cadillac "took off like a bullet." Waas also reported her observations to the Berlin police officers who had responded to the bank after the incident was reported.
Also on the morning of the incident, patrol Officer Eric Chase of the Berlin Police Department was on duty in his marked police cruiser when his dispatcher radioed a "BOLO"4 for a Cadillac that had reportedly been involved in a "robbery" at TD Bank. Recalling that a Cadillac matching the dispatcher's description had just passed him as he was driving southbound on the Berlin Turnpike, Chase accelerated to overtake the Cadillac, and eventually was able to maneuver his cruiser behind it so he could see its license plate. By so doing, he was able to confirm that it was the Cadillac described in the BOLO. He then activated his lights and siren in an unsuccessful attempt to pull over the Cadillac.
As Chase's pursuit continued, other officers were setting up emergency operations at a firehouse farther south along the Berlin Turnpike in advance of an impending hurricane. When Lieutenant James Gosselin, a member of the hurricane response team, heard the broadcast about the fleeing Cadillac, he maneuvered his vehicle across the southbound lanes of the highway in an effort to stop it. To get around the vehicle, however, the operator of the Cadillac drove over the right curb of the highway, across the grass, and around some vehicles stopped at a nearby intersection. Chase initially followed the Cadillac around the vehicle and continued to pursue it southbound on the Berlin Turnpike, reporting as he did so that there appeared to be two people in the vehicle, one in the driver's seat and the other in the front passenger's seat. He ended his pursuit, however, at the Meriden city line because by then he could no longer see the Cadillac.
Later on the day of the incident, Hamden police officers went to the address of Johnson, the registered owner of the Cadillac, who was then the defendant's fiancée. Johnson told the police officers that the defendant had been using the Cadillac that day, and that he in fact had been using it throughout the month of August, 2011. Johnson stated that her brother had called her earlier in the day when police officers first went to her residence to inquire about the Cadillac. During that call, her brother had told her that the police were investigating a vehicle that had been involved in the commission of a crime. Johnson then called the defendant and informed him that the police were at her residence looking for the Cadillac. Sounding upset, the defendant then told Johnson that he, too, was looking for the Cadillac because it had been stolen from him earlier. The day of the incident was to have been the day of Johnson's and the defendant's wedding shower. When Johnson asked the defendant over the telephone what he was going to do about the shower, the defendant replied that he would not be coming to the shower. When Johnson later asked him about their wedding plans, moreover, he told her that the wedding would not be taking place, and, in fact, that he was unsure if or when she would ever see him again.
A couple of days later, Chase was dispatched to Meriden to investigate an abandoned motor vehicle. Upon his arrival, Chase recognized the vehicle from its license plate as the Cadillac he had pursued on the Berlin Turnpike after hearing the report of its use in a bank robbery. He took photographs of the Cadillac, including one of its untampered-with locking mechanism to show that a key must have been used to start and stop the vehicle. The Cadillac was then towed to the Berlin Police Department, where it was searched pursuant to a warrant.
The search of the Cadillac led to the discovery of the defendant's driver's license, along with receipts from an AutoZone store in Hamden and a Dunkin' Donuts in Wethersfield. The receipt from Dunkin' Donuts was dated about one-half hour before the start of the incident at TD Bank, and the contents of the cup found in the vehicle matched the order of coffee that was documented on the Dunkin' Donuts receipt. Police subsequently examined surveillance videos from AutoZone and Dunkin' Donuts from the morning of the incident, which showed the defendant, wearing a Boston Red Sox hat, making purchases in both establishments. The surveillance video from AutoZone also showed the blue Cadillac the defendant was reportedly driving on the day of the incident.
Steven Kostka, a Berlin police officer assigned to the investigation, later interviewed...
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