State v. Turner ( 2021 )

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STATE OF CONNECTICUT v. ELIZABETH
K. TURNER
(SC 20360)
Robinson, C. J., and McDonald, D’Auria,
Kahn, Ecker, and Keller, Js.
Syllabus
Convicted of robbery in the first degree and felony murder, among other
crimes, the defendant appealed. The defendant’s convictions stemmed
from her involvement in the murders of the victims, B and B’s son, P.
Prior to the murders, the defendant and her husband, C, lived in B’s
home. The defendant devised a scheme in order to steal from B, pursuant
to which the defendant instructed C to tell B that the defendant had
been arrested and that he needed money to bail the defendant out of
jail. B acquiesced and gave C the money, which C and the defendant
used to buy drugs. Subsequently, the defendant and C returned to B’s
home, where the defendant heard an altercation and subsequently wit-
nessed C stabbing P. The defendant did not intercede, and, according
to a statement the defendant later made to the police, it was apparent
to her at that point that B may have already been dead. After the killings,
the defendant went through B’s purse and removed money and personal
items, and the defendant and C jointly sold B’s and P’s personal property
for cash. In her appeal before the Appellate Court, the defendant claimed
that the trial court’s instructions violated her due process rights on the
ground that the court, in referring to a larceny by false pretenses in its
instructions on the first degree robbery and felony murder charges,
improperly presented the jury with a legally invalid but factually sup-
ported basis for finding her guilty with respect to those charges. In
support of this claim, the defendant argued that a larceny by false
pretenses could not, as a matter of law, serve as the predicate felony
for robbery and felony murder. The Appellate Court concluded that the
trial court’s references to larceny by false pretenses presented the jury
with a legally valid basis for conviction, albeit one that was factually
unsupported by the evidence presented at trial, and that the improper
inclusion of the factually unsupported theory was harmless because the
post murder larcenies also presented the jury with a legally valid and
factually supported alternative basis for finding the defendant guilty of
robbery and felony murder. The Appellate Court affirmed the judgment
of conviction, and the defendant, on the granting of certification,
appealed to this court. Held that the jury having been instructed on an
alternative theory of conviction that was legally valid and factually
supported by the evidence, the Appellate Court properly upheld the
defendant’s conviction of first degree robbery and felony murder: a
larceny by false pretenses that precedes the use of force can satisfy the
larceny element of robbery if the force is used in order to retain the
property immediately after the taking, and, therefore, the trial court’s
references to larceny by false pretenses in its instructions presented
the jury with a legally valid theory for finding the defendant guilty of
robbery and felony murder; nevertheless, because the evidence estab-
lished that the defendant and C completed their scheme to take money
from B under the pretense that it was to bail the defendant out of jail
before B and P were murdered, that scheme could not serve as a factual
basis for finding the defendant guilty of robbery or felony murder, and,
accordingly, the trial court’s references to larceny by false pretenses in
its instructions in connection with that scheme was improper; however,
the submission of this factually unsupported theory of guilt to the jury
did not violate the defendant’s due process rights because the jury was
provided with a legally valid and factually supported alternative basis
for conviction insofar as the jury was instructed that it could find the
defendant guilty of first degree robbery and felony murder on the basis
of her participation in the larcenies that occurred after the murders
were committed, and this alternative theory of criminal liability was
amply supported by the evidence.
Argued March 24—officially released August 31, 2021*
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, 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 one count each of
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 sub-
stitute information, in the third case, charging the defen-
dant 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 Supe-
rior Court in the judicial district of Waterbury, where
the cases were consolidated; thereafter, the case was
tried to the jury before Cremins, J.; verdicts and judg-
ments of guilty, from which the defendant appealed;
subsequently, the Appellate Court, Lavine, Prescott,
and Bright, Js., which affirmed the judgments of the
trial court, and the defendant, on the granting of certifi-
cation, appealed to this court. Affirmed.
Mark Rademacher, assistant public defender, for the
appellant (defendant).
Ronald G. Weller, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Terence D. Mariani and Cynthia S. Sera-
fini, senior assistant state’s attorneys, for the appel-
lee (state).
Opinion
KAHN, J. This certified appeal requires us to consider
whether the defendant’s convictions of robbery in the
first degree in violation of General Statutes § 53a-134
(a) (1) and felony murder in violation of General Stat-
utes § 53a-54c should be reversed due to the trial court’s
references to larceny by false pretenses in its instruc-
tions to the jury on both offenses. The defendant, Eliza-
beth K. Turner, appeals from the judgment of the Appel-
late Court affirming her conviction on sixteen counts,1
including three counts of robbery in the first degree
and two counts of felony murder, for her involvement
in the murder of Donna Bouffard and her son, Michael
Perkins (Perkins).2 The defendant contends that the
trial court, by referring to larceny by false pretenses in
its instructions, improperly presented the jury with a
legally invalid but factually supported basis for finding
her guilty of both robbery and felony murder. The
Appellate Court rejected that claim, concluding that the
trial court’s instructions, although improper, provided
the jury with a legally valid but factually unsupported
basis for finding the defendant guilty and, as a result,
did not impact her due process right to a fair trial. See
State v. Turner, 190 Conn. App. 693, 709–15, 212 A.3d
715 (2019). The Appellate Court further held that the
trial court’s instructional error was harmless because
the jury had a legally valid and factually supported
alternative basis for finding the defendant guilty of rob-
bery and felony murder. Id., 711–15. We affirm the judg-
ment of the Appellate Court.
The jury reasonably could have found the following
relevant facts based on the evidence presented at trial.
In February, 2012, Bouffard invited the defendant and
her husband, Claude Turner, both of whom were home-
less at the time, to live with her in her Watertown home.
Bouffard’s generosity was an extension of a kindness
first offered by her daughter, Christine Perkins, who,
after seeing the Turners at a Waterbury mall and recog-
nizing Claude Turner from a Salvation Army food line,
invited the Turners to stay with her and her mother.
Bouffard provided the Turners with their own room on
the second floor.
At the beginning of April, 2012, Bouffard received a
disability settlement in the amount of $13,000. After
using a portion of the settlement to pay various bills,
Bouffard put the remaining $7000 in an envelope and
hid it under her bed. When she noticed that some of
the money was missing, she took the remaining cash
and placed it in a safe in her living room. Bouffard
accused the defendant and Claude Turner of the theft,
but allowed them to remain in her home.
On April 19, 2012, Bouffard traveled to Vermont for
a brief vacation with a friend. Prior to her departure,
Bouffard served eviction papers on her daughter and
her daughter’s husband, David Ortiz, so that her son,
Perkins, could move back into her home after having
moved out following a dispute with Ortiz. While Bouf-
fard was away, the defendant directed her husband to
break into the safe with a crowbar in order to access
the remainder of the money obtained from the disability
settlement. Claude Turner complied, and the couple
stole approximately $6000, all of which they used to
purchase drugs. When Bouffard returned from Vermont
and discovered the open, empty safe, she reported the
larceny to the police. In early May, 2012, Bouffard asked
the Turners to move out of her home. The couple
refused to leave.
The relationship between the Turners and Bouffard
deteriorated rapidly following the theft. In the ensuing
months, the defendant expressed to her husband and
their close friend, Anthony Acosta, that she wanted to
put rat poison in Bouffard’s and Perkins’ food. After
her arrest, the defendant told the police that Bouffard
frequently complained about being unhappy and that
she found such complaints to be condescending. She
also admitted that she and Bouffard argued frequently
during this period.
On June 28, 2012, the defendant devised a new
scheme to steal from Bouffard. She instructed her hus-
band to go to Bouffard and tell her that the defendant
had been arrested and that he needed $50 to bail her
out of jail. Bouffard acquiesced and gave Claude Turner
the money, which he and the defendant used to buy
drugs. Later that same day, again at the direction of the
defendant, Claude Turner returned to Bouffard and told
her the bond was actually $100. Bouffard again gave
Claude Turner $50, and the couple used the money to
purchase more drugs.
Just after midnight on June 29, 2012, the Turners
returned to Bouffard’s home, where Perkins was asleep
on a couch and Bouffard was awake in her room.
According to the defendant’s statement to the police
following her arrest, Bouffard began ‘‘running her mouth’’
soon after they arrived. Hoping to avoid a confrontation,
the defendant went upstairs and turned on a television
in the room that she shared with her husband. Inter-
ested in what was going on downstairs, the defendant
lowered the sound on the television so that she could
listen in.
Soon thereafter, the defendant heard ‘‘banging’’ and
‘‘wrestling’’ noises. The defendant also heard Perkins
yell, ‘‘[j]ust stop’’ and ‘‘[p]lease stop, I love you.’’ (Inter-
nal quotation marks omitted.) The defendant then
started to walk down the stairs but stopped when she
saw Claude Turner stabbing Perkins in the stomach.
The defendant did not intercede, and, according to her
statement to the police, it was at that moment that she
realized that Bouffard was likely dead because the room
to her door was closed despite Perkins’ pleas for help.
After seeing the defendant, Claude Turner told her to
return upstairs, which she promptly did.
Immediately after the killings, Claude Turner walked
upstairs and handed Bouffard’s purse to the defendant.
The defendant went through the purse and removed
$200, multiple gift cards, and the keys to Bouffard’s car.
The defendant then walked down the stairs, past the
mutilated bodies of Perkins and Bouffard, and searched
for the paperwork for Bouffard’s car. The defendant and
her husband then drove Bouffard’s car to Waterbury,
where they picked up Acosta and purchased marijuana
and cocaine. The three then returned to Bouffard’s
home and used the drugs. At trial, the jury heard former
testimony from Acosta that, while they were sitting in
the Turners’ room, the defendant said that she regretted
telling her husband to kill Bouffard and Perkins. When
the defendant discovered an eviction notice while
searching through Bouffard’s belongings, she remarked
to Acosta, ‘‘good for them. They deserved it.’’
Over the next several days, the defendant, Claude
Turner, and Acosta sold a variety of items they stole
from the house, including Bouffard’s camper, phone,
and jewelry, and Perkins’ scooter, guitar, and a video
game console. The defendant later admitted to the
police that she and her husband had jointly decided
to sell the various items for cash. The defendant also
attempted to withdraw money from Bouffard’s bank
account using a forged check but was turned away by
a skeptical bank teller. On Friday, July 6, 2012, one
week after the murders, the defendant and her husband
sold Bouffard’s car for $400.
The defendant and her husband were ultimately
arrested in Baltimore, Maryland, and the defendant
waived extradition to Connecticut.3 The defendant was
charged with sixteen offenses. Relevant to the present
appeal, the defendant was charged, in the second case,
with felony murder as to Bouffard and Perkins in counts
one and two, respectively, and robbery in the first
degree as to Bouffard and Perkins in counts nine and
ten, respectively. At trial, the prosecutor argued that
the defendant had engaged in a continuous sequence
of larcenous conduct, beginning with the bail scheme
and culminating in the theft of the victims’ property
after the murders. At the conclusion of the state’s case-
in-chief, defense counsel moved for a judgment of
acquittal on the ground that the defendant did not plan
or participate in the murder and, as a result, could not
be guilty of felony murder or robbery. The prosecutor,
in response to the motion, argued that the timing of
the murders elevated both the bail scheme larceny and
the larcenies committed after the murders to robberies.
The trial court denied the motion.
At an on-the-record charging conference held the fol-
lowing day, defense counsel argued that the state’s
‘‘continuing course of conduct’’ theory was inappropri-
ate for closing argument on the felony murder counts
because the bail scheme had ended prior to the use of
force. The trial court disagreed, concluding that whether
the bail scheme, as part of a continuous course of con-
duct, could serve as the predicate felony for felony
murder was a question of fact for the jury. The trial
court reasoned: ‘‘The cases in the brief that was filed
by the state in the hearing [on] probable cause do stand
for the proposition, in my view, that there can be a
continuing course of conduct from a point prior to the
murders . . . that can be argued as a continued course
of conduct, which would encompass the underlying
predicate robbery for the felony murder. . . . My con-
clusion, further, is that whether or not it is a continuing
course of conduct is a fact[ual] issue that has to be
decided by the jury.’’
In its instructions to the jury on the counts of robbery
and felony murder, the trial court defined the crime of
larceny by false pretenses when it described the larceny
element of robbery. The trial court instructed the jury in
relevant part: ‘‘Larceny simply means theft or stealing.
Larceny also includes obtaining property by false pre-
tenses. ‘False pretense’ means a false representation
of fact.’’ The trial court referred to larceny by false
pretenses a total of three times in its instructions on
robbery and felony murder.
Aside from the various references to larceny by false
pretenses, the trial court’s instructions hewed closely
to the model instructions for robbery and felony mur-
der. See Connecticut Criminal Instructions 5.4-1 and
6.4-1, available at https://www.jud.ct.gov/JI/Criminal/
Criminal.pdf (last visited August 20, 2021). When it
instructed the jury on the felony murder charges in
counts one and two of the second case, the trial court
explained that, in order to find the defendant guilty, it
had to find that the killings occurred ‘‘in the course of,
and in furtherance of the commission or attempted
commission of the crime of robbery . . . .’’ The trial
court further noted that ‘‘ ‘[i]n the course of the commis-
sion’ of the robbery or attempted robbery means during
any part of the defendant’s participation in the robbery
or attempted robbery.’’ The trial court also instructed
the jury that the killing must ‘‘in some way be causally
connected to, or as a result of, the robbery . . . .’’ The
jury subsequently returned verdicts finding the defen-
dant guilty on all counts. See State v. Turner, supra, 190
Conn. App. 695–96. Thereafter, the trial court rendered
judgments of conviction in accordance with the verdicts
and sentenced the defendant to sixty years of incarcera-
tion. Id., 700.
On appeal to the Appellate Court, the defendant
claimed, inter alia,4 that the trial court’s instructions on
the charges of robbery and felony murder violated her
due process right to a fair trial because the court’s
various references to larceny by false pretenses permit-
ted the jury to base its guilty verdict on a legally invalid
but factually supported theory of guilt. See State v.
Turner, supra, 190 Conn. App. 704–705. In support of
this claim, the defendant argued that a larceny by false
pretenses cannot, as a matter of law, serve as the predi-
cate felony for robbery and felony murder. Id., 709.
According to the defendant, the trial court’s reference
to larceny by false pretenses created the impression
that the jury could find her guilty of robbery and felony
murder based on the larceny by false pretenses at issue
in this case, namely, the bail scheme. Id., 700–702. The
defendant argued that, because the instructions con-
tained a legally invalid theory, the jury’s general verdicts
must be reversed under Stromberg v. California, 283
U.S. 359, 51 S. Ct. 532, 75 L. Ed. 1117 (1931). State v.
Turner, supra, 704–705.
The Appellate Court rejected the defendant’s claim
and held that, although the trial court’s references to
larceny by false pretenses were improper, the instruc-
tional error presented the jury with a legally valid the-
ory that was factually unsupported by the evidence
presented at trial. Id., 709–10. Relying on our decision
in State v. Chapman, 229 Conn. 529, 643 A.2d 1213(1994), the Appellate Court held that the inclusion of
the factually unsupported theory was harmless because
the post murder larcenies also presented the jury with
a legally valid and factually supported alternative basis
for finding the defendant guilty. See State v. Turner,
supra, 190 Conn. App. 715. This certified appeal fol-
lowed.5
Before turning to the defendant’s specific claim on
appeal, we begin by reviewing the legal principles rele-
vant to our consideration of claims of instructional error
involving multiple theories of guilt on a single count. We
have previously recognized the important distinction
between instructional errors that present the jury with a
legally valid but factually unsupported theory of liability
and those that provide the jury with a legally invalid
basis for convicting the defendant. In Chapman, we
noted that ‘‘the United States Supreme Court has held
that a factual insufficiency regarding one statutory
basis, which is accompanied by a general verdict of
guilty that also covers another, factually supported
basis, is not a federal due process violation.’’ State v.
Chapman, supra, 229 Conn. 539; see also, e.g., State v.
Burton, 258 Conn. 153, 162–65, 778 A.2d 955 (2001). In
such cases, the inclusion of a legally valid but factually
unsupported theory of liability in the instructions does
not implicate the due process rights of the defendant
because a jury is well equipped to differentiate between
factually supported and factually unsupported theories
of guilt. See State v. Chapman, supra, 539; see also
Griffin v. United States, 502 U.S. 46, 56–59, 112 S. Ct.
466, 116 L. Ed. 2d 371 (1991).
A jury is not, however, ‘‘equipped to determine
whether a particular theory of conviction submitted to
[it] is contrary to law . . . .’’ (Internal quotation marks
omitted.) State v. Chapman, supra, 229 Conn. 539. As
a result, if a jury is provided with a legally invalid alter-
native basis for finding the defendant guilty and the
jury returns a general verdict of guilty, the defendant’s
due process rights are violated, and the conviction must
be reversed unless the state can show that ‘‘the jury
necessarily found facts to support the conviction on a
valid theory.’’ (Emphasis added.) State v. Cody M., 337
Conn. 92, 116, 259 A.3d 576 (2020); see also Hedgpeth
v. Pulido, 555 U.S. 57, 58, 129 S. Ct. 530, 172 L. Ed. 2d
388 (2008).
In the present appeal, the defendant contends that
the Appellate Court incorrectly concluded that the trial
court’s instructions presented the jury with a legally
valid but factually unsupported basis for finding her
guilty of robbery and felony murder. Specifically, the
defendant argues that the Appellate Court incorrectly
determined that a person who obtains property through
false pretenses and later uses force to retain that prop-
erty can, as a matter of law, be convicted of robbery
or felony murder. According to the defendant, a larceny
by false pretenses can never serve as a legally valid
predicate for robbery and felony murder, and, as a
result, the trial court’s instructions violated her due
process rights by providing the jury with a legally invalid
basis for finding her guilty. Citing this court’s recent
decision in State v. Cody M., supra, 337 Conn. 92, the
defendant argues that her conviction on the charges of
robbery and felony murder must be reversed because
the state cannot establish that the jury made the factual
findings necessary to support her conviction on a legally
valid alternative theory. We disagree.
We begin our analysis of the defendant’s claim by
examining the Appellate Court’s conclusion that, under
certain circumstances, a larceny by false pretenses can
serve as the predicate felony for robbery and felony
murder. In support of its conclusion, the Appellate
Court offered the following hypothetical: ‘‘Suppose that,
during the course of the bail scheme, [Perkins] glanced
out [of] the window and saw the defendant in the car.
If he exclaimed, after Bouffard has handed over the
money, that the defendant was not in jail but was out-
side, and Turner immediately used physical force in
order to retain possession of the money, then the lar-
ceny by false pretenses could have been a proper predi-
cate for a robbery.’’ State v. Turner, supra, 190 Conn.
App. 709. We agree with the Appellate Court’s reasoning
and conclude that a larceny by false pretenses that
precedes the use of force can satisfy the larceny element
of robbery under General Statutes § 53a-133 if the force
is used in order to retain the property immediately after
the taking.6 See General Statutes § 53a-133 (‘‘[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
. . . the retention [of the property] immediately after
the taking [of the property]’’ (emphasis added)). As
we have consistently recognized, a larceny that occurs
either ‘‘immediately before or after’’ the use of force
can serve as the predicate larceny for robbery under
§ 53a-133. State v. Ghere, 201 Conn. 289, 297, 513 A.2d
1226 (1986). We, therefore, conclude that the trial
court’s references to larceny by false pretenses in its
charge presented the jury with a legally valid theory
for finding the defendant guilty of robbery and felony
murder.7 See Griffin v. United States, supra, 502 U.S.
59 (noting that theory of conviction is legally invalid if
charged conduct ‘‘is protected by the [c]onstitution,
is time barred, or fails to come within the statutory
definition of the crime’’); see also, e.g., United States
v. Desnoyers, 637 F.3d 105, 109 (2d Cir. 2011).
We now must consider whether this legally valid the-
ory was supported by evidence presented at trial.
According to the Appellate Court, the evidence estab-
lished that the bail scheme ‘‘was complete[d] before
the victims were murdered,’’ and, as a result, it could
not serve as the factual basis for finding the defendant
guilty of robbery and felony murder. State v. Turner,
supra, 190 Conn. App. 709–10. On the basis of our review
of the record, we agree with the Appellate Court. During
trial, testimony established that, on the evening of June
28, 2012, Claude Turner and the defendant fraudulently
acquired $100 from Bouffard and promptly used that
money to purchase drugs. After midnight on June 29,
2012, the defendant and Claude Turner returned to
Bouffard’s home, and, following an argument with Bouf-
fard, Claude Turner killed both Bouffard and Perkins.
By the time the victims were murdered, the proceeds
of the bail scheme had been spent. Additionally, no
evidence was presented at trial that Claude Turner’s
use of force was connected to the bail scheme or that
he attacked Bouffard for the purpose of ‘‘[p]reventing
or overcoming resistance to the taking of the property
or to the retention thereof immediately after the taking
. . . .’’ General Statutes § 53a-133. Due to the absence
of any evidence connecting the killings to the completed
bail scheme, we conclude that this theory of criminal
liability was factually unsupported, and, as a result, the
trial court’s inclusion of larceny by false pretenses in
its instructions on robbery and felony murder was
improper. See, e.g., State v. Reid, 193 Conn. 646, 667
n.22, 480 A.2d 463 (1984) (noting that ‘‘[i]t is error for
a court to submit to a jury as a basis for a conviction
any statutory alternative ground unsupported by the
evidence’’).
Having determined that the instructions improperly
presented the jury with a legally valid but factually
unsupported theory of conviction, ‘‘we must determine
whether: (1) the error is constitutional or nonconstitu-
tional in nature; and (2) whether it was harmful.’’ State
v. Chapman, supra, 229 Conn. 537. As we have pre-
viously noted, the submission of a factually unsup-
ported theory of guilt does not violate the constitutional
rights of a defendant, as long as the trial court’s instruc-
tions also provided the jury with a legally valid and
factually supported basis for conviction. Id., 539–44;
see also, e.g., State v. Berger, 249 Conn. 218, 238–39,
733 A.2d 156 (1999).
In her brief, the defendant concedes that her partici-
pation in the larcenies that occurred after Bouffard and
Perkins were killed provided the jury with a legally
valid basis for finding her guilty of both robbery and
felony murder.8 The trial court specifically instructed
the jury that, in order to find the defendant guilty of
felony murder, it had to find that a ‘‘death occurred
during . . . any part of the defendant’s participation
in the robbery or attempted robbery.’’ (Emphasis
added.) The trial court also instructed the jury that it
needed to find that the death was ‘‘in some way . . .
causally connected to, or as a result of, the robbery
. . . .’’ As the defendant concedes, these instructions
presented the jury with a legally valid basis for finding
the defendant guilty of robbery and felony murder based
on the larcenies committed after the murders.9
We also agree with the Appellate Court’s assessment
that this alternative theory of liability was amply sup-
ported by evidence contained in the record. As the
Appellate Court noted, the evidence established, among
other things, that (1) the defendant told the police that
Claude Turner would do anything for her in order to
keep her happy; (2) she twice directed Claude Turner
to steal Bouffard’s money, first when it was under Bouf-
fard’s bed and then again when it was in the safe; (3)
she did not intervene when she saw Claude Turner
stabbing Perkins; (4) she searched through Bouffard’s
purse and stole money, gift cards, and car keys immedi-
ately after the murders; (5) she walked past the bodies
of Bouffard and Perkins when searching for the paperwork
for Bouffard’s car; (6) she and Claude Turner used the
money from Bouffard’s purse to purchase drugs; (7)
they, along with Acosta, used the drugs in Bouffard’s
home shortly after the murders; (8) she told Acosta that
she regretted telling Claude Turner to kill Bouffard and
Perkins; and (9) she stated in a letter that she wrote
from prison that she had ‘‘made a huge mistake’’ that
resulted in ‘‘lives [being] lost.’’10 (Internal quotation
marks omitted.) State v. Turner, supra, 190 Conn. App.
700, 712. As the Appellate Court aptly noted, ‘‘[t]hese
facts, and others, provided a basis for the jury to have
concluded beyond a reasonable doubt that at least the
killing of Bouffard was planned in advance and was
designed to gain possession of her money and property,
and that . . . Perkins was killed because he was a wit-
ness and/or attempted to intervene.’’ Id., 712–13.
Our conclusion that the jury was instructed on an
alternative theory of conviction that was both legally
valid and factually supported is sufficient to reject any
nonconstitutional claim of instructional error. See, e.g.,
State v. Chapman, supra, 229 Conn. 542 (‘‘we have con-
sistently held that submission of an instruction for
which there was no basis in the evidence is subject
to harmless error analysis’’). In the present case, the
defendant cannot establish that the trial court’s error
more probably than not affected the jury’s verdict
because the trial court’s instructions provided the jury
with a legally valid and factually supported alternative
basis for finding her guilty of robbery and felony mur-
der. When a jury is presented with multiple legally valid
theories of conviction, only one of which is unsupported
by the evidence presented at trial, ‘‘we assume that the
jury found the defendant guilty under the supported
allegation, rather than the unsupported allegation.’’
Id., 543–44.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
* August 31, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The defendant was convicted of two counts of felony murder in violation
of General Statutes (Rev. to 2011) § 53a-54c, one count of 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), one count 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 physical 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
(a) and 53a-124 (a), one count of accessory to larceny in the third degree
in violation of General Statutes §§ 53a-8 (a) and 53a-124 (a), one count of
larceny in the second degree in violation of General Statutes § 53a-123 (a)
(1), and one count of using a motor vehicle without the owner’s permission
in violation of General Statutes § 53a-119b (a) (1).
2
The defendant was convicted of two counts of robbery in the first degree
in violation of § 53a-134 (a) (1) for the robberies of Bouffard and Perkins.
The defendant was also convicted of one count of robbery in the first degree
in violation of § 53a-134 (a) (3) for robbery using a dangerous instrument.
3
While in prison awaiting trial, the defendant wrote a letter to a friend
in which she stated that she had ‘‘made a huge mistake’’ that resulted in
‘‘lives [being] lost.’’ (Internal quotation marks omitted.)
4
In her appeal before the Appellate Court, the defendant also claimed
that insufficient evidence was presented at trial to support her conviction
of attempted possession of narcotics. See State v. Turner, supra, 190 Conn.
App. 696. This claim is not at issue in the present certified appeal.
5
The defendant appealed from her conviction to this court, and we trans-
ferred the appeal to the Appellate Court. See General Statutes § 51-199 (c);
Practice Book § 65-1. We subsequently granted the defendant’s petition for
certification to appeal, limited to the following issue: ‘‘Did the Appellate
Court properly uphold the defendant’s conviction of robbery and felony
murder based on a legally invalid but factually supported theory for the
conviction?’’ State v. Turner, 333 Conn. 915, 216 A.3d 650 (2019).
6
The case law that the defendant cites in support of the opposite conclu-
sion is unavailing. The defendant relies heavily on the California Supreme
Court’s decision in People v. Williams, 57 Cal. 4th, 776, 786–89, 305 P.3d
1241, 161 Cal. Rptr. 3d 81 (2013). Although the majority in that decision
held that a larceny by false pretenses that precedes a use of force cannot
serve as a predicate larceny for robbery under California law; see id., 788–89;
the holding in that case turned on the language of California’s robbery
statute, which differs significantly from the language contained in § 53a-
133. Unlike the relevant California statute, § 53a-133 covers the ‘‘use of
physical force . . . for the purpose of . . . the retention [of the property]
immediately after the taking . . . .’’ The defendant also mistakenly relies
on People v. Quinn, 186 App. Div. 2d 691, 588 N.Y.S.2d 646 (1992), which
makes clear that, under New York state law, a larceny by false pretenses
can serve as the predicate felony for robbery if force is used ‘‘to overcome
. . . resistance to the retention of the [property] ‘immediately after the
taking.’ ’’ Id., 692; see also, e.g., People v. Saia, 112 App. Div. 2d 804, 805,
492 N.Y.S.2d 306 (recognizing that robbery can be committed by threatening
physical force for purpose of retaining property acquired by false pretenses),
appeal denied, 66 N.Y.2d 617, 485 N.E.2d 244, 494 N.Y.S.2d 1040 (1985).
7
The defendant implicitly concedes as much in her brief when she argues
that ‘‘the bail larceny may have had a connection to the murder. But it did
not have the legally required connection because the Turners had spent the
stolen money.’’
8
Specifically, the defendant states: ‘‘Here, the theft of money and gift
cards from Bouffard’s purse immediately after her death could support a
[conviction of] robbery and felony murder . . . if the defendant knew ahead
of time that [Claude] Turner was going to kill the victim to steal from her.’’
9
The defendant’s claim of instructional error is limited to the trial court’s
references to larceny by false pretenses in its robbery and felony murder
instructions. The defendant does not allege that any other portion of the
instructions was improper.
10
We also note that, during the prosecutor’s closing argument, he argued
that, due to the defendant’s direct involvement in the crimes leading up to
the killings, ‘‘common sense’’ dictated that she was aware of Claude Turner’s
plan to kill the victims before it happened.