State v. Davis

• Decision Date: 24 April 2001
• Citation: 772 A.2d 559
• Court: Connecticut Supreme Court
• Parties: (Conn. 2001) STATE OF CONNECTICUT v. TODD DARNELL DAVIS SC 16329

772 A.2d 559 (Conn. 2001)

STATE OF CONNECTICUT v. TODD DARNELL DAVIS

SC 16329

THE SUPREME COURT OF THE STATE OF CONNECTICUT

Argued December 6, 2000

April 24, 2001

Pamela S. Nagy, special public defender, with whom were Donald LaRoche, certified legal intern, and, on the brief, Christopher N. Parlato, certified legal intern, for the appellant (defendant).

Timothy J. Sugrue, senior assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and Donna Mambrino, senior assistant state's attorney, for the appellee (state).

Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

Norcott, J.

OPINION

The dispositive issue in this appeal is whether General Statutes §§ 53-202k,¹ which requires that a defendant receive an additional five year sentence when a firearm is involved in the commission of certain felonies, applies to unarmed accomplices. A jury convicted the defendant, Todd Darnell Davis, of robbery in the first degree in violation of General Statutes §§ 53a-134 (a) (2),² and burglary in the first degree in violation of General Statutes §§ 53a-101 (a) (1).³ After the trial court rendered judgment sentencing the defendant for these offenses, it imposed two additional five year terms of imprisonment for the commission of a class A, B or C felony with a firearm, pursuant to §§ 53-202k. The defendant appeals claiming, inter alia, that his convictions of robbery in the first degree and burglary in the first degree are not amenable to enhancement under §§ 53-202k because that provision applies only to convictions based on principal, not accessorial, liability.⁴ We conclude that the application of the sentence enhancement statute to an accessory was proper and, therefore, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 19, 1997, the defendant and another man entered a Burger King restaurant by hurling a cement block through a locked glass door. The men subsequently entered the establishment wearing masks and jumped over the service counter. Two employees, who were in the process of closing the restaurant for the evening, described one of the men as tall, thin and armed with a handgun, and described the other man as being of medium build and height. In an effort to appease the men, one of the employees offered them the money in the restaurant's safe. As the employee worked to open the safe, the tall, thin man held a gun to the employee's head. Once the safe was opened, the two men seized the cash and exited through the rear door. As the men drove out of the parking lot, the employee gained an unobstructed view of their vehicle. The employee instructed someone to call 911 with a description of the vehicle, which included the license plate number VMGEEN.

As the police dispatcher reported the armed robbery and a description of the vehicle involved, a police officer observed a vehicle that matched the description traveling at a high rate of speed and bearing the license plate number VMGEER. A chase of the vehicle ensued. After briefly losing sight of the vehicle, the police located it in the parking lot of an apartment complex. The car was abandoned but still running. Inside the vehicle, the police discovered a nine millimeter Smith and Wesson handgun, a cash drawer, a ski mask and cash strewn about.

A certified canine police dog was used to track the scent from the driver's seat area and led the police to the discovery of a backpack hidden in the nearby woods. The backpack contained approximately $3261.25 in cash and a Burger King bank deposit slip. Thereafter, the police dog continued to track the scent and followed it to the defendant, whom the police temporarily had detained for questioning. The dog indicated through its actions that the suspect was the same individual who previously had been in the driver's seat of the abandoned vehicle. Upon questioning by the police, the defendant explained that he was coming from a friend's house and had been out for a jog. The defendant was unable to say where his friend lived or the friend's last name. The defendant's girlfriend, who also lived in the area, was unable to confirm that the defendant had been jogging. The second robber has never been identified or apprehended.

Prior to trial, the state served notice on the defendant that, in the event of his conviction for a class A, B or C felony with a firearm, he would be subject to the mandatory sentence enhancement provisions of §§ 53-202k. At trial, the state provided evidence that footprints at the restaurant were made by the defendant's sneakers. In addition, there was evidence that hair strands recovered from the mask located in the abandoned vehicle were similar to hair strands belonging to the defendant. The defendant did not testify at trial and presented no witnesses at trial. The jury ultimately convicted the defendant of robbery in the first degree in violation of §§ 53a-134 (a) (2), and burglary in the first degree in violation of §§ 53a-101 (a) (1).

At the sentencing hearing, the defense counsel remarked, and the state agreed, that there was testimony at trial indicating that the defendant, if present at the crime scene, was unarmed. Thereafter, the court imposed a sentence of eighteen years for the robbery conviction, plus a consecutive five year enhancement pursuant to §§ 53-202k. Additionally, the court imposed a sentence of five years for the burglary conviction, plus a five year enhancement pursuant to §§ 53-202k, to run concurrently with the robbery sentence. Thus, the total effective sentence was twenty-three years.⁵ Regarding the application of the sentence enhancement, the court explained: "As to any language interpretation of §§ 53-202k, it's the court's position that even though the language says `any person,' that it does not make clear that he has to be the actual person who possesses the gun; that just like any automatic accessorial language that a principal and accessory are equally guilty, that must also apply to the §§ 53-202k language and that, therefore, he is guilty also under the §§ 53-202k language under accessorial liability."

The defendant's appeal from the judgment of the trial court is limited to the following issues: (1) whether the trial court properly imposed an additional five year imprisonment to both the defendant's sentences, pursuant to §§ 53-202k, where he was an unarmed accomplice; (2) if so, whether the defendant's sentences under §§ 53-202k should be vacated because the trial court imposed the mandatory five year sentences without having the jury determine whether a firearm was used during the commission of the crimes; and (3) whether the trial court's jury instructions improperly invaded the province of the jury by suggesting that certain elements of the state's case had been proven and that the defendant was guilty. We conclude that: (1) the trial court properly applied §§ 53-202k to an unarmed accomplice; (2) the defendant's sentences under §§ 53-202k should not be vacated because the trial court's failure to instruct the jury to determine whether a firearm was used during the commission of the crimes was harmless; and (3) the trial court's instructions to the jury were not unfairly suggestive. Accordingly, we affirm the judgment of the trial court.

I.

The defendant first claims that the trial court's application of §§ 53-202k, which resulted in an enhanced sentence, is inapplicable to him as an unarmed accomplice. Specifically, the defendant contends that the plain language and legislative history of §§ 53-202k demonstrate the legislature's intent that the statute apply only to an individual who actually uses a firearm during the commission of a felony. The state, on the other hand, urges application of the enhancement statute to the defendant because the basic theory of accessorial liability requires such an interpretation. We agree with the state and, therefore, we conclude that an unarmed accomplice is subject to an enhanced penalty under §§ 53-202k.⁶

Our analysis is governed by well established principles of statutory construction. "Statutory construction is a question of law and, therefore, our review is plenary.... [O]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Citation omitted; internal quotation marks omitted.) State v. Velasco, 253 Conn. 210, 219-20, 751 A.2d 800 (2000); see also State v. Parra, 251 Conn. 617, 622, 741 A.2d 902 (1999); State v. Dash, 242 Conn. 143, 146-47, 698 A.2d 297 (1997).

When the statute in question is one of a criminal nature, we are guided by additional tenets of statutory construction. First, it is axiomatic that we must refrain from imposing criminal liability where the legislature has not expressly so intended. State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Second, "[c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant." (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995). Finally, "unless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state." State v. Ross, 230 Conn. 183, 200, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995).

With these guidelines in mind, we look to the text of §§ 53-202k. The statute provides for a mandatory five year term of imprisonment whenever a defendant, "in the commission of ...