State v. Lavigne, SC 18675

• Decision Date: 25 December 2012
• Docket Number: SC 18675
• Court: Connecticut Supreme Court
• Parties: STATE OF CONNECTICUT v. KATHLEEN PAMELA LAVIGNE

STATE OF CONNECTICUT v. KATHLEEN PAMELA LAVIGNE

SC 18675

Supreme Court of Connecticut

Argued September 25, 2012

officially released December 25, 2012

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The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut.Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh and Vertefeuille, Js.

Martin Zeldis, public defender, for the appellant (defendant).

Melissa L. Streeto, senior assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Brenda Hans, assistant state's attorney, for the appellee (state).

Opinion

ROGERS, C. J. This appeal raises the question of whether a party who is named as a joint holder of a bank account necessarily is a joint owner of the funds deposited in that account and, therefore, may not be criminally prosecuted for the wrongful withdrawal of those funds. The defendant, Kathleen Pamela Lavigne, appeals¹ from the judgment of the Appellate Court upholding her conviction, after a jury trial, of larceny in the second degree by embezzlement from a person who is sixty years of age or older in violation of General Statutes § 53a-123 (a) (5).² State v. Lavigne, 121 Conn. App. 190, 192, 995 A.2d 94 (2010). The defendant claims that the Appellate Court improperly concluded that the trial court correctly instructed the jury that the ownership of funds in a jointly held account is a factual issue for the jury to resolve. According to the defendant, the trial court's instruction was improper because a joint holder of an account, as a matter of law, jointly owns the funds in the account and, consequently, cannot be charged with stealing those funds. We disagree and affirm the judgment of the Appellate Court.

The Appellate Court opinion recites the following relevant facts, which the jury reasonably could have found, and procedural history. ''In February, 2002, the defendant went to Nashua, New Hampshire, to visit the home of the victim, her aunt, Cleopatra Matlis. Matlis, who was then eighty-seven years old, was born in New Hampshire and had lived there until 2002. On or about February 19, 2002, Matlis left New Hampshire and traveled with the defendant to Connecticut. On that same date, before departing from New Hampshire, the defendant and Matlis visited two banks in Nashua. At the first bank, the defendant removed stock certificates from a safe deposit box. At the second bank, Fleet Bank, Matlis withdrew $10,000 in cash. Once in Connecticut, the defendant and Matlis visited other banks and created accounts that named them as joint account holders. These accounts were opened with money obtained from accounts that were previously in the name of Matlis alone, as well as the proceeds from the sale of stocks that had been in Matlis' name. Two months later, on April 15, 2002, using Matlis' money for the down payment, the defendant purchased a house in Ellington. The defendant and Matlis lived together in this new house. The state alleged that over the next several months, Matlis' spending habits changed dramatically [from her previous style, which had been very frugal]. Prior to that, between February 27 and March 4, 2002, Matlis cashed stock certificates that she had inherited from her father, totaling $134,063.49. On August 2, 2002, the defendant executed a listing agreement with a realtor for the sale of Matlis' home in Nashua.

''On October 4, 2002, Matlis was diagnosed with pri-mary degenerative dementia. On October 10, 2002, the Ellington Probate Court found that she was incapable of managing her affairs because of her dementia and that irreparable injury to her financial and legal affairs would result if a temporary conservator was not appointed. The Probate Court appointed attorney Steven Allen as the temporary conservator of her estate. On November 7, 2002, Allen accepted his appointment as permanent conservator of the estate and person of Matlis. Between October 10 and 22, 2002, the defendant withdrew approximately $3307 from two checking accounts jointly held by Matlis and the defendant at [the] Savings Bank of Manchester. Matlis died on November 18, 2002.

''On January 25, 2007, the state filed an amended information charging the defendant with five counts of larceny in the first degree in violation of General Statutes § 53a-122 (a) (2) and five counts of larceny in the second degree in violation of § 53a-123 (a) (2) and (5). A jury trial began on February 13, 2007, and on March 27, 2007, the defendant was found guilty of one count of larceny in the second degree in violation of § 53a-123 (a) (5). The court declared a mistrial as to the nine remaining counts. On May 30, 2007, the defendant was sentenced to five years imprisonment, execution suspended after six months, and five years probation. She also was required to pay $3307 restitution to the estate of Matlis as a condition of probation.'' Id., 193-94. The defendant's appeal to the Appellate Court followed.

In the Appellate Court, the defendant claimed, inter alia, that she could not be held criminally liable under § 53a-123 (a) (5) because she was a joint holder, along with Matlis, of the bank account from which she was accused of making illegal withdrawals. Id., 200. She argued specifically that the trial court improperly had instructed the jurors to the contrary, namely, that it was their duty to determine who owned the funds that were held jointly by the defendant and Matlis. Id. The Appellate Court rejected the defendant's claim, reasoning that General Statutes § 36a-290,³ a provision of Connecticut's banking statutes that governs joint deposit and share accounts, was not dispositive of the question of ownership. Id., 203-204. Because the Appellate Court was unaware of any Connecticut case law governing legal rights to funds as between joint holders, it concluded that the trial court properly had instructed the jurors that the issue of ownership rights was a factual one for the jurors to resolve. Id., 204. This appeal followed.

The defendant claims that the Appellate Court improperly upheld the trial court's jury instructions because, as a joint holder of the accounts in question, she cannot, as a matter of law, be found criminally liable for withdrawing funds from those accounts. She contends that the trial court misinterpreted § 36a-290when it concluded that the statute was not dispositive as to the ownership of funds in a jointly held account. According to the defendant, the ''clear effect of [§ 36a-290] is to establish equal ownership rights in all the joint account holders during their lifetime and beyond.'' Consequently, the defendant claims, she wrongfully ''has been convicted of a felony for taking her own money.'' The state contends, to the contrary, that the trial court properly instructed the jury that the ownership rights in the jointly held accounts presented issues of fact for the jury's determination. We agree with the state.⁴

Because the defendant did not preserve this issue in the trial court by raising an objection to the relevant jury instructions, she seeks to prevail pursuant to the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).⁵ A defendant can prevail on an unpreserved constitutional claim under Golding ''only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.'' (Emphasis in original.) Id., 239-40. ''The first two [prongs of Golding] involve a determination of whether the claim is reviewable; the second two . . . involve a determination of whether the defendant may prevail.'' State v. George B., 258 Conn. 779, 784, 785 A.2d 573 (2001). We agree with the Appellate Court that the record is adequate to review the defendant's claim and that the claim, which alleges an improper instruction on an element of an offense, is of constitutional magnitude. See State v. DeJesus, 260 Conn. 466, 472-73, 797 A.2d 1101 (2002). We conclude, however, that the Appellate Court properly determined that the alleged constitutional violation did not clearly exist or deprive the defendant of a fair trial.

We review the defendant's claim of instructional impropriety pursuant to the following standard of review. ''The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the...