State v. Flemke

• Decision Date: 10 February 2015
• Docket Number: No. 19244.,19244.
• Citation: 108 A.3d 1073,315 Conn. 500
• Parties: STATE of Connecticut v. Anthony FLEMKE.
• Court: Connecticut Supreme Court

315 Conn. 500

108 A.3d 1073

STATE of Connecticut

v.Anthony FLEMKE.

No. 19244.

Supreme Court of Connecticut.

Argued Feb. 10, 2014.

Decided Feb. 10, 2015.

Glenn W. Falk, assigned counsel, Madison, 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).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

Opinion

PALMER, J.

A jury found the defendant, Anthony Flemke, 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 state also sought a sentence enhancement under General Statutes § 53–202k,⁴ which provides for a mandatory, consecutive five year prison term when a person uses, or is armed with and threatens to use, a firearm in the commission of a class A, B or C felony, the jury further found that a firearm had been used⁵ in the commission of the robbery, a class B felony.⁶ Although it is undisputed that only the defendant's accomplice was armed during the commission of the robbery, the trial court sentenced the defendant under § 53–202k to a term of imprisonment of five years to be served consecutively with the eighteen month sentence that the court imposed for the defendant's conviction of robbery in the first degree as an accessory.⁷ On appeal,⁸ the defendant contends that we should overrule our holding in State v. Davis, 255 Conn. 782, 784, 792, 772 A.2d 559 (2001), that § 53–202k applies to unarmed accomplices. The defendant also contends that, if we decline to overrule Davis, we should limit the applicability of § 53–202k to unarmed accomplices who intended that a firearm be used in the commission of the underlying offense. We reject the defendant's claims and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following relevant facts. At all times relevant to this appeal, the defendant, his girlfriend, Kelly Ann Danforth, and their mutual friend, Chadwick Matzdorff, resided together in an apartment in the town of Lebanon. On October 19, 2010, Danforth learned that Charissa McDonald, from whom she frequently purchased prescription drugs, including Percocet

, illegally, was in possession of a large quantity of such drugs. Danforth proposed to the defendant and Matzdorff that they rob McDonald of the drugs, and, together, they devised a plan for doing so. Specifically, they agreed that Danforth would arrange to meet McDonald later that evening in the parking lot of a gas station in the town of Bolton, purportedly to purchase ten Percocet

pills from her. Because McDonald was acquainted with the defendant and Danforth, they decided that Matzdorff should carry out the robbery using an airsoft pellet gun and ski mask belonging to the defendant. They also agreed that the defendant, using Danforth's car, would serve as Matzdorff's driver. According to the plan, while Danforth waited at home, the defendant would drive Matzdorff to the gas station where Danforth and McDonald had agreed to meet, and then wait in a nearby parking lot while Matzdorff carried out the robbery.

Later that evening, Danforth called McDonald and arranged to meet her at the gas station. McDonald subsequently sent a text message to Danforth and told her to meet her at a 7–Eleven store in the town of Andover instead. A friend of McDonald's, Kelly D'Aprile, then drove McDonald, in McDonald's car, to that location. While the women were waiting for Danforth to arrive, Matzdorff ran up to their car, opened the driver's 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. On their way home, Matzdorff and the defendant discovered that Matzdorff had grabbed D'Aprile's purse, which contained no drugs.

A few months later, police interviewed Matzdorff about the robbery. At that time, he confessed to his role in the crime and implicated the defendant and Danforth as his accomplices.

The defendant and Danforth were subsequently arrested, and each was charged with robbery in the first degree as an accessory and conspiracy to commit robbery in the first degree. Additionally, the state sought a mandatory five year sentence enhancement for both the defendant and Danforth pursuant to § 53–202k on the basis of Matzdorff's use of a firearm during the commission of the robbery.⁹ Following a joint trial, the jury found the defendant and Danforth guilty on both robbery counts. After accepting the verdicts, and, in accordance with § 53–202k, the court submitted the following interrogatory to the jury: “Has the state proven to all of you unanimously 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 his words or conduct that he possessed a firearm?” The jury answered the interrogatory in the affirmative.¹⁰ The trial court rendered judgment in accordance with the jury verdicts, and, with respect to the charge of commission of a class A, B or C felony with a firearm in violation of § 53–202k, the court sentenced the defendant to a prison term of five years, to be served consecutively with the sentence imposed by the court for the conviction of robbery in the first degree as an accessory, as § 53–202k requires. In overruling the defendant's objection to the five year sentence enhancement, the trial court relied on State v. Davis, supra, 255 Conn. at 784, 792, 772 A.2d 559, in which this court concluded that § 53–202k applies to unarmed accomplices who are charged and found guilty of being accessories pursuant to § 53a–8 (a). This appeal followed.

On appeal, the defendant claims that his sentence was improperly enhanced under § 53–202k because that provision, by its terms, applies only to a person or persons who actually use a firearm during the commission of a class A, B or C felony. Although the defendant acknowledges that this court rejected an identical claim in Davis, he urges us to overrule Davis in light of the legislature's subsequent enactment of General Statutes § 1–2z,¹¹ which codified the common-law plain meaning rule. Alternatively, the defendant contends that we should limit this court's 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 in the commission of the offense by another participant.

We decline the defendant's invitation to overrule or otherwise limit Davis for several reasons. First, this court previously has concluded that the legislature, in enacting § 1–2z, did not intend to overrule any case decided prior to its enactment that construed a statute in a manner that conflicts with the dictates of § 1–2z. Hummel v. Marten Transport, Ltd., 282 Conn. 477, 501, 923 A.2d 657 (2007). Second, contrary to the defendant's claim, our conclusion in Davis that § 53–202k applies to unarmed accomplices is in no way inconsistent with the plain meaning rule set forth in § 1–2z. Third, even if we agreed with the defendant that we should reconsider our interpretation of § 53–202k in Davis, the legislature has given no indication since Davis was decided that it disagrees with our construction of § 53–202k in that case, thereby giving rise to an inference that the legislature approves of our reading of the statute. Finally, our reasoning in Davis forecloses the defendant's contention that we should limit our holding in that case by construing § 53–202k to apply to an unarmed accomplice only if that accomplice intends that another participant in the underlying class A, B or C felony would use a firearm in the commission of the offense.

As we have observed, we do not write on a blank slate with respect to the issue of whether § 53–202k applies to an unarmed accomplice. In Davis, a jury found the defendant, Todd Darnell Davis, guilty of first degree robbery and first degree burglary in connection with an armed robbery of a restaurant. State v. Davis, supra, 255 Conn. at 783–84, 772 A.2d 559. At trial, the evidence established that Davis and another man, who never was apprehended, had entered the restaurant wearing masks and that one of them held a gun to an employee's head while forcing the employee to open the restaurant's safe. Id., at 784, 772 A.2d 559. Prior to trial, the state informed Davis that it intended to seek the five year sentence enhancement authorized by § 53–202k. Id., at 785, 772 A.2d 559. At the sentencing hearing following the return of the jury's verdict, the state agreed with Davis that the evidence presented at trial indicated that he was likely unarmed at the time of the robbery. See id., at 786, 772 A.2d 559. The trial court nevertheless sentenced Davis to a five year consecutive term of imprisonment in accordance with § 53–202k, concluding that it made no difference whether he personally was armed during the robbery, because, under well established principles of accessorial liability, he was liable for the criminal conduct of the person who was armed. See id.

On appeal to this court, Davis claimed, inter alia, that, contrary to the determination of the trial court, the plain language and legislative history of § 53–202k made it clear that the legislature intended that § 53–202k would apply only to persons who actually use a firearm during the commission of a class A, B or C felony, and that the legislature's failure to include accessory language in § 53–202k constituted “an affirmative decision by the legislature to apply § 53–202k only to principals.”...