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STATE OF CONNECTICUT v. PAUL DAVIS
(AC 37582)
Beach, Alvord and Mullins, Js.
Argued September 22, 2015—officially released March 1, 2016
(Appeal from Superior Court, judicial district of
Hartford, Dewey, J.)
Mary A. Beattie, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John F. Fahey, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
MULLINS, J. The defendant, Paul Davis, appeals from
the judgment of conviction of accessory to murder in
violation of General Statutes §§ 53a-54a (a) and 53a-8
(a), conspiracy to commit murder in violation of Gen-
eral Statutes §§ 53a-48 (a) and 53a-54a (a), and attempt
to commit murder in violation of General Statutes
§§ 53a-49 (a) (2) and 53a-54a (a).1 On appeal, the defen-
dant claims that (1) there was insufficient evidence to
sustain his conviction of attempt to commit murder
because he was charged via the information only as a
principal and the trial court did not instruct the jury
that it could find him guilty as an accessory on that
charge, (2) the court improperly instructed the jury that
it was not necessary for the state to prove that the
defendant intended to kill the victim to find him guilty
of accessory to murder, and (3) the court improperly
instructed the jury on the substantial step requirement
of attempt to commit murder.2 We affirm the judgment
of the trial court.
The following facts, which reasonably could have
been found by the jury, are relevant to our consideration
of the issues on appeal. The defendant was a member
of a gang in Hartford. On May 28, 2006, in retaliation
for a shooting that occurred earlier that day in which
another member of the defendant’s gang was shot, the
defendant, Ackeem Riley and Dominique Mack dis-
cussed conducting a drive-by shooting in the Nelton
Court area of Hartford. The trio had no specific vic-
tim intended.
The defendant drove himself, Riley and Mack toward
the Nelton Court area in a car he had borrowed. Riley
was armed with a nine millimeter Glock handgun. Mack
was armed with a nine millimeter Taurus. As the defen-
dant drove, he, Riley and Mack saw a group of children
at the corner of Elmer and Clark Streets. Riley and
Mack fired at least seventeen shots from their handguns
at the group, striking two boys. One of the victims,
Kerry Foster, Jr., a fifteen year old boy, was hit by five
bullets, resulting in his death. The other victim, Cinque
Sutherland, a fourteen year old boy, was hit by three
bullets, resulting in serious injury.
After the shooting, the defendant, Riley and Mack
fled the scene and left the car on Guilford Street. From
there, they summoned a cab to take them to 140 Oakland
Terrace. Riley, Mack and another man later returned
to the vehicle and set it on fire.
On June 7, 2006, the defendant agreed to speak with
members of the Hartford Police Department, and he
provided them with information about the shooting. He
told the officers about the planning of the shooting, the
types of firearms used and where they could be found.
He also told them how the vehicle used in the shooting
later was set on fire. The defendant, however, did not
disclose his involvement in the shooting until almost
three years later, in May, 2009, when he again spoke
to the police and provided a written statement.
After providing a written statement to the police,
the defendant was charged with and later convicted of
accessory to murder, conspiracy to commit murder,
and attempt to commit murder. See also footnote 1 of
this opinion. The court sentenced him to a total effective
term of 100 years imprisonment. This appeal followed.
Additional facts will be set forth as necessary.
I
The defendant claims that there was insufficient evi-
dence to sustain his conviction of attempt to commit
murder. He argues that, as to this count, the state
charged him, via a long form information, only as a
principal, that the court instructed the jury only on the
theory of principal liability, and that the state argued
that the defendant was a principal, but that there was
no evidence that he was the shooter or that he had a
gun during the commission of this crime. He concedes
that there was sufficient evidence that he acted as an
accessory, but argues, nonetheless, that his conviction
cannot be sustained under these circumstances.
The state responds that our role on appeal is to review
the charging document and the evidence, and then
assess whether any rational jury could have found the
essential elements of the crime beyond a reasonable
doubt. The state contends: ‘‘Because the state charged
the defendant generally as to the [attempt to commit]
murder count, the defendant was on notice that he
could be convicted as either a principal or an acces-
sory.’’ Moreover, the state argues, although the instruc-
tions of the trial court are not relevant when considering
the sufficiency of the evidence, the trial court’s instruc-
tions in this case, read as a whole, permitted the jury
to find the defendant guilty of attempt to commit mur-
der as an accessory.
The defendant, in rebuttal, argues that, although a
defendant who is charged as a principal can be con-
victed as an accessory, this is true only if he has notice
that he was being charged as an accessory and the jury
is instructed that it can find him guilty on the theory
of accessorial liability. He argues that, here, he had no
notice that he could be convicted as an accessory when
the state charged him as a principal, the state never
requested an instruction on accessorial liability as to
this count, the state argued to the jury that the defendant
was a principal, and the court never instructed the jury
that it could find him guilty as an accessory to attempt
to commit murder. He argues that, because the jury
found him guilty of the crime of attempt to commit
murder with no evidence that he acted as a principal,
and no instruction that it could find him guilty as an
accessory, we, on appeal, must find the evidence insuffi-
cient, overturn his conviction, and order a judgment of
acquittal. We are not persuaded by the defendant’s
arguments.
‘‘In reviewing the sufficiency of the evidence to sup-
port a criminal conviction we apply a two-part test.
First, we construe the evidence in the light most favor-
able to sustaining the verdict. Second, we determine
whether upon the facts so construed and the inferences
reasonably drawn therefrom the [finder of fact] reason-
ably could have concluded that the cumulative force
of the evidence established guilt beyond a reasonable
doubt. . . .
‘‘We assume that the fact finder is free to consider
all of the evidence adduced at trial in evaluating the
defendant’s culpability, and presumably does so,
regardless of whether the evidence is relied on by the
attorneys. . . . When the state advances a specific the-
ory of the case at trial, however, sufficiency of the
evidence principles cannot be applied in a vacuum.
Rather, they must be considered in conjunction with
an equally important doctrine, namely, that the state
cannot change the theory of the case on appeal. . . .
‘‘The theory of the case doctrine is rooted in princi-
ples of due process of law. . . . In Dunn [v. United
States, 442 U.S. 100, 99 S. Ct. 2190, 60 L. Ed. 2d 743
(1979)] the United States Supreme Court explained: To
uphold a conviction on a charge that was neither alleged
in an indictment nor presented to a jury at trial offends
the most basic notions of due process. Few constitu-
tional principles are more firmly established than a
defendant’s right to be heard on the specific charges
of which he is accused. . . . [A]ppellate courts are not
free to revise the basis on which a defendant is con-
victed simply because the same result would likely
obtain on retrial. . . .
‘‘[I]n order for any appellate theory to withstand scru-
tiny under Dunn, it must be shown to be not merely
before the jury due to an incidental reference, but as
part of a coherent theory of guilt that, upon [review of]
the principal stages of trial, can be characterized as
having been presented in a focused or otherwise cogni-
zable sense. . . . Thus, in conducting our analysis . . .
we must analyze the evidence adduced at trial to deter-
mine whether, when considered in light of the state’s
theory of guilt at trial, the state presented sufficient
evidence . . . .
‘‘We note at the outset that . . . the theory of the
case principle binds not only the state, but appellate
courts as well.’’ (Citations omitted; internal quotation
marks omitted.) State v. Carter, 317 Conn. 845, 853–55,
120 A.3d 1229 (2015).
In count four of the long form information, the state
charged the defendant as follows: ‘‘The said Senior
Assistant State’s Attorney further accuses [the defen-
dant] of the crime of ATTEMPT TO COMMIT MURDER
in violation of Connecticut General Statutes § 53a-49
(a) (2) [and] 53a-54a (a), and alleges that, on or about
May 28, 2006, at or near 50–52 Clark Street, Hartford,
CT, at approximately 11:24 p.m., the defendant, acting
with the mental state required for the commission of
murder, intentionally did an act constituting a substan-
tial step in a course of conduct planned to culminate
in the commission of the crime.’’
A
The defendant concedes that the evidence was suffi-
cient to establish his guilt of attempt to commit murder
as an accessory. The defendant argues, nonetheless,
that this case is unique because, even if he was on
notice by virtue of the information and the evidence
that he could be convicted as an accessory, the state’s
theory of the case was that he was a principal, and,
furthermore, the court never instructed the jury that it
could find him guilty as an accessory to the attempt to
commit murder charge.
Specifically, he argues: ‘‘At trial, the court instructed
the jury on count four solely on the theory of principal
liability. This theory was confirmed by the state, which
told the jury during its closing argument that it was
charging the defendant as a principal on the attempt
charge (‘with respect to the attempted murder count
. . . [the defendant] is, in fact, the principal’).’’ (Foot-
note omitted.) The defendant also points out that the
state, on appeal, makes no claim that the defendant
was a principal on this charge. Accordingly, he argues,
the evidence was insufficient to support a guilty verdict
in light of the state’s theory of the case and the court’s
instruction to the jury, namely, that the defendant was
a principal on the attempt to commit murder charge.
We are not persuaded that the state’s theory of the
case involved the defendant acting solely as a principal
on the charge of attempt to commit murder. Rather,
our view of the state’s presentation of evidence and its
closing argument leads us to conclude that the state’s
theory of the case was that the defendant aided Riley
and Mack in their attempt to commit the murder of
Sutherland because the defendant agreed to participate
in the shooting of anyone outside the Nelton Court area
and then drove the car out of which Riley and Mack,
as principals, shot Foster and Sutherland.
We recognize that the state argued during its closing
argument: ‘‘Now, with respect to count three, the con-
spiracy, of which [the defendant] was a principal, and
with respect to the attempted murder count, where he
took a substantial step, in those two, he is, in fact, the
principal. With respect to . . . alternative methods of
liability, they apply in reality to the murder, and there-
fore, from the murder to the capital felony.’’ Neverthe-
less, a thorough reading of the entirety of the state’s
closing argument to the jury reveals that the prosecutor
never argued that the defendant was the shooter in this
case, and he always proceeded under the theory that the
defendant conspired with Mack and Riley to conduct a
drive-by shooting, that the defendant drove the car for
Mack and Riley, and that Mack and Riley fired the weap-
ons. We acknowledge that the prosecutor’s closing
argument, at times, was inartful, and, perhaps, could
be read as proposing that the defendant was a principal
on the attempt to commit murder charge because he
acted as an accomplice. The prosecutor certainly
argued, however, that the defendant was the driver
of the vehicle in the drive-by shooting, and that the
defendant intentionally aided Mack and Riley in their
shooting of the victim. He never once alleged that the
defendant actually pulled the trigger.
Indeed, the state told the jury, inter alia, that it was
‘‘not alleging that . . . [the defendant] pulled any—
either of the triggers, which resulted in the gunfire that
caused the death of Kerry Foster, Jr., and the injury to
Cinque Sutherland. The law allows for that. The law
allows for alternative methods where a defendant can
be guilty if certain factors are met. Thus—I will talk
about two particular methods; one is accessorial liabil-
ity and one is what is called the Pinkerton doctrine3
. . . .’’ (Footnote added.) The state also argued: ‘‘I want
to talk about attempt as it relates to the charges. Again,
acting with the kind of mental state required for the
commission of the crime, here, the intent to cause—
intent to commit a murder, the defendant intentionally
did an act constituting a substantial step in a course of
conduct planned to culminate in the commission of that
crime. In this count, attempted murder applies to the
shooting of Cinque Sutherland.
‘‘So, what were the substantial steps that [the defen-
dant] took? You know from the evidence that he drove
a car over to Clark Street, more specifically, down Clark
Street, with two passengers . . . who had loaded nine
millimeter firearms, so they could retaliate in some gang
war, and, instead, shot at two uninvolved individuals
[namely, Foster and Sutherland]. [The defendant] drove
slowly down the street allowing numerous shots to be
fired [by] the gunm[e]n at Sutherland and Foster in an
attempt to accomplish the murder or murders.’’
The state then discussed conspiracy, Pinkerton, and
accessorial liability. In relevant part, the state argued:
‘‘Next, alternatively, is accessorial liability. So, in addi-
tion to Pinkerton liability, a person is guilty of a crime
when they act either as a principal or an accessory. A
person acts as an accessory when, again, having the
mental state required for murder . . . he intentionally
aids another.
‘‘If you were talking about simply accessory versus
principal as the alternative methods, there would be no
need for unanimity. . . . But, when you’re talking
about the difference between accessorial liability and
Pinkerton liability, you need to be unanimous as to
either Pinkerton liability, that you all agree he’s guilty
under Pinkerton, you can all agree he’s guilty as an
accessory, or, quite frankly, as the state would suggest,
the evidence shows in this case, he’s guilty both ways,
and that is acceptable as well.
‘‘Now, how did he—and before I jump off that last
line, how did he intentionally aid here? Well, I think
the evidence becomes clear, [by] . . . acting as the
approach drive[r] and the getaway driver in this case,
[the defendant] intentionally aided . . . Mack and . . .
Riley in accomplishing the shooting of and ultimately
the murder of Kerry Foster and the shooting of
Cinque Sutherland.’’
We conclude that the state’s closing argument was
consistent with its presentation of evidence. The state
sought to establish that the defendant conspired with
Riley and Mack to participate in a drive-by shooting
and that the defendant drove the car while Riley and
Mack shot the victims, resulting in one death and one
serious injury. The state’s theory of the case, therefore,
was that the defendant aided Riley and Mack while they
shot the victims, killing Foster and attempting to kill
Sutherland, and the state has remained consistent in
its theory.
B
We next examine whether the court’s instructions
to the jury reasonably permitted the jury to find the
defendant guilty of attempt to commit murder as an
accessory.
Although the state did not specifically charge the
defendant as an accessory to the crime of attempt to
commit murder in the long form information, our gen-
eral rule is that ‘‘a defendant may be convicted as an
accessory even though he was charged only as a princi-
pal as long as the evidence presented at trial is sufficient
to establish accessorial conduct.’’ (Internal quotation
marks omitted.) State v. James, 247 Conn. 662, 679, 725
A.2d 316 (1999); see State v. Vasquez, 68 Conn. App.
194, 215, 792 A.2d 856 (2002) (defendant charged with
crime is on notice that he may be convicted as accessory
to that crime). ‘‘Therefore, the fact that the defendant
was not formally charged as an accessory does not
preclude his being convicted as such . . . and a defen-
dant who is charged with an offense should be on notice
that he may be convicted as an accessory.’’ (Internal
quotation marks omitted.) State v. VanDeusen, 160
Conn. App. 815, 848–49, 126 A.3d 604, cert. denied, 320
Conn. 903, A.3d (2015).
Despite our general rule, however, ‘‘a reviewing court
may not uphold a conviction premised on accessorial
liability if the court foreclosed the jury from basing its
guilty verdict on that theory. See State v. Faulkner, 48
Conn. App. 275, 277, 709 A.2d 36 (1998) (noting in review
of sufficiency of evidence to support conviction as
accessory that trial court instructed jury as to both
principal and accessorial liability); State v. Channer,
28 Conn. App. 161, 166, 612 A.2d 95 (noting in review
of sufficiency of evidence that reviewing court limited
to considering whether evidence supported finding that
defendant acted as principal because trial court did not
instruct jury as to accessorial liability), cert. denied,
223 Conn. 921, 614 A.2d 826 (1992).’’ State v. Holley,
160 Conn. App. 578, 592, A.3d , cert. granted on
other grounds, 320 Conn. 906, A.3d (2015); see
State v. VanDeusen, supra, 160 Conn. App. 849 (‘‘in
order to be convicted as an accessory, it is at least
necessary for the court to have instructed the jury on
principles of accessorial liability’’ either generally or as
to each relevant offense).
The state argues that the court’s instructions do not
bear on the sufficiency of the evidence, but, in the
alternative, it argues that the court’s instructions in the
present case properly advised the jury on the theory
of accessorial liability. The defendant argues that the
court’s accessorial liability instructions could not be
read to relate to the attempt to commit murder count.
We conclude that the court’s instructions properly
guided the jury on the issue of accessorial liability.
In its final instructions to the jury, the court gave an
instruction on accessory liability during its charge on
count three of the information, conspiracy to commit
murder, which also included its definition and instruc-
tion concerning the crime of murder. The court first
defined the elements of murder, and next proceeded
to define the elements of conspiracy. The court then
discussed the lesser included offense of conspiracy to
commit assault in the first degree. Next, the court
instructed: ‘‘Now, our next offense is alternative theory
of liability of murder. This is count two in the informa-
tion. The defendant is charged in count two with the
murder of Kerry Foster, even though the state is not
alleging that the defendant directly participated in the
commission of the murder. He is charged as an acces-
sory. The defendant is also charged in count three—
two, with conspiracy to commit murder—in count
three. That’s right. This is count three, conspiracy to
commit murder.
‘‘I have provided the elements of the crime of murder
previously. However, with respect to intent in this par-
ticular count, it is not necessary for a conviction of
murder that the state prove that the defendant intended
to kill Kerry Foster. A person is criminally liable for a
criminal act if he directly commits it or if he is an
accessory in the criminal act of another. The statute
defining accessorial liability read[s] in pertinent part as
follows: a person, acting with the mental state required
for the commission of an offense, who solicits, requests,
importunes, or intentionally aids another person to
engage in conduct which constitutes an offense shall
be criminally liable for such conduct and may be prose-
cuted and punished as if he were the principal offender.
‘‘This statute does not connect those five acts speci-
fied with the word ‘and’ but separates them by the word
‘or.’ A person is an accessory if he solicits or requests
or importunes or intentionally aids another person to
engage in conduct that constitutes an offense. Solicit
means: to order or direct; importune means: to demand
or urge; aid means: to assist, help, or support. A person
acts intentionally with respect to a result when his
conscious objective is to cause such result. Intentional
aid, therefore, means: to act in any manner, the con-
scious objective of which is to assist, help, or support.
Specific intent is required.
‘‘If the defendant did any of these things as specified
in the statute, he is guilty of murder as though he had
directly committed it or participated in its commission.
To establish the guilt of a defendant as an accessory
for assisting in the criminal act of another, the state
must prove criminality of the intent and community of
the unlawful purpose. That is, for the defendant to be
guilty as an accessory, it must be established that he
acted with the mental state necessary to commit murder
and that in furtherance of that crime, he solicited,
requested, commanded, importuned, or intentionally
aided the principal to commit murder.
‘‘Evidence of mere presence as an inactive compan-
ion, or passive acquiescence, or the doing of innocent
acts, which, in fact, aid in the commission of a crime, is
insufficient to find the defendant guilty as an accessory
under the statute. Nevertheless, it is not necessary to
prove that the defendant was actually present or
actively participated in the actual commission of the
crime of murder.’’
The court then instructed the jury on Pinkerton liabil-
ity, interweaving an instruction on the conspiracy count
with an instruction on the accessory to murder count.
See footnote 3 of this opinion. Following its Pinkerton
instruction, the court told the jury: ‘‘If you unanimously
find that the state has proved beyond a reasonable
doubt each of the elements of the crime of accessory
to the murder of Kerry Foster, then you shall find the
defendant guilty. On the other hand, if you unanimously
find that the state has failed to prove beyond a reason-
able doubt any of the elements, you shall find the defen-
dant not guilty.
‘‘Your possible verdicts as regards to this count would
be not guilty, guilty as an accessory, guilty as a cocon-
spirator, or guilty as to both an accessory and a cocon-
spirator. The verdict must be unanimous. You must
unanimously agree on which of these four verdicts will
be returned.
‘‘If you unanimously find that the state has proved
beyond a reasonable doubt each of the elements of the
crime of accessory to murder, then you shall find the
defendant guilty. On the other hand, if you unanimously
find that the state has failed to prove beyond a reason-
able doubt any of the elements, then you shall find the
defendant not guilty.’’
The court went on to instruct the jury on the lesser
included offense of manslaughter in the first degree,
and told the jury that it could find the defendant guilty
as either an accessory or under Pinkerton liability. The
court then proceeded to instruct the jury on count one,
accessory to capital felony, explaining to the jury that
it could find the defendant guilty under either theory
of liability.
Finally, the court instructed the jury on count four,
attempt to commit murder, and its lesser included
offenses. Critically, in this instruction, the court, twice,
specifically referred the jury back to the court’s instruc-
tions on murder, which incorporated its instruction on
accessorial liability. The entirety of that instruction is
as follows: ‘‘Finally, attempt to commit murder. The
defendant is charged in count four with attempt to
commit murder. I have already defined murder. The
statute defining attempt reads in pertinent part as fol-
lows: a person is guilty of an attempt to commit a crime
if, acting with the kind of mental state required for the
commission of the crime, he intentionally engages in
conduct which would constitute the crime if attendant
circumstances were as he believes them to be.
‘‘For you to find the defendant guilty of this charge,
the state must prove the following elements beyond a
reasonable doubt:
‘‘Element one is intent. The first element is that the
defendant had the kind of mental state required for the
commission of the crime of murder. The intent for that
crime is the specific intent to cause murder. Please
refer to the definition of murder.
‘‘And element two is conduct. The second element
is that the defendant intentionally engaged in conduct
that would constitute the crime of murder if the atten-
dant circumstances were as he believed them to be.
There must be a substantial step toward the completion
of the criminal act.
‘‘In conclusion, if upon all the evidence you conclude
beyond a reasonable doubt that the defendant has
formed in his mind the intention to commit murder as
it has been defined for you, you must next consider
whether he intentionally did anything that would consti-
tute the crime if the circumstances were as he believed
them to be. In other words, the state must prove both
intent and conduct beyond a reasonable doubt to obtain
a conviction.
‘‘If you unanimously find that the state has proved
beyond a reasonable doubt each of the elements of the
crime of attempt to commit murder, then you shall
find the defendant guilty. On the other hand, if you
unanimously find that the state has failed to prove
beyond a reasonable doubt any of the elements, you
shall then find the defendant not guilty.
‘‘If you unanimously find the defendant not guilty of
the crime of attempt to commit murder, you shall then
consider the lesser offense of attempt to commit assault
in the first degree. Do not consider the lesser offense
unless and until you have unanimously acquitted the
defendant of the greater offense, attempt to commit
murder.
‘‘And attempted assault in the first degree. I have
already defined the concept of attempt, and I’ve also
provided the definition of assault in the first degree.
Please refer back to those.
‘‘If, upon all the evidence, you conclude beyond a
reasonable doubt that the defendant has formed in his
mind the intention to commit assault in the first degree
as it has been defined for you, you must next consider
whether he intentionally did anything that would consti-
tute the crime if the circumstances were as he believed
them to be, that is, find a substantial step toward the
completion of the crime. In other words, the state must
prove both intent and conduct beyond a reasonable
doubt to obtain a conviction.
‘‘If you unanimously find that the state has proved
beyond a reasonable doubt each of the elements of the
crime of attempt to commit assault in the first degree,
then you shall find the defendant guilty. On the other
hand, if you unanimously find that the state has failed
to prove beyond a reasonable doubt any of the elements,
you shall then find the defendant not guilty.’’4
The defendant claims that, when reviewing the
court’s instructions, it is clear that the court did not
instruct the jury that it could find him guilty as an
accessory to attempt to commit murder. He argues that
there was no evidence that he was a principal, and that,
without an instruction to the jury telling it that the
defendant could be guilty as an accessory on that
charge, the jury was foreclosed from finding guilt on
that alternative theory. We disagree that the jury was
foreclosed from finding guilt on a theory of accessorial
liability on the charge of attempt to commit murder.
In this case, the evidence established that the defen-
dant conspired with Riley and Mack to participate in a
drive-by shooting, and the defendant drove the vehicle
while Riley and Mack shot the victims, killing Foster
and attempting to kill Sutherland. This evidence was
consistent with the state’s theory of the case. During
its final instructions to the jury, the court gave an
instruction on accessorial liability while charging the
jury on the crime of conspiracy to commit murder.
During that portion of its final instructions, the court
also included its definition and instruction on murder.
When the court got to the portion of its instructions
concerning attempt to commit murder, the court twice
referred the jury back to its instructions on murder,
stating, ‘‘I have already defined murder,’’ and, ‘‘[p]lease
refer to the definition of murder.’’
As set forth in complete detail previously in this opin-
ion, the court fully instructed the jury on accessorial
liability during its instruction on murder. The defendant
was accused of having murdered Foster, acting as an
accessory. Thus, in this particular case, the accessory
instruction given during the court’s instruction on mur-
der necessarily was part of its definition of murder.
When, during the instruction on attempt to commit mur-
der, the court instructed the jury to refer back to the
murder instruction, it is likely that the jury understood
that the accessorial liability portion of the instruction
applied to the attempt to commit murder charge, as
well. Compare State v. Holley, supra, 160 Conn. App.
595 (although court did not distinctly instruct jury that
it could find defendant guilty of robbery in first degree
as accessory, as it had done in its instruction on burglary
in the first degree, reading entirety of court’s instruc-
tion, in light of evidence presented, leads to conclusion
that court submitted robbery count on theory of acces-
sorial liability, as well) and State v. Foshay, 12 Conn.
App. 1, 26–27, 530 A.2d 611 (1987) (accessorial liability
instruction generally applied to both burglary and lar-
ceny charges although not set forth in both) with State
v. VanDeusen, supra, 160 Conn. App. 848 n.20 (court’s
accessorial liability instruction applied to different
charge and no general instruction that would apply to
all counts). Accordingly, we conclude that the jury was
not foreclosed from considering the defendant’s guilt
under the theory of accessorial liability in relation to
the charge of attempt to commit murder.
II
The defendant next claims, with respect to the acces-
sory to murder charge, that the court improperly
instructed the jury that it was not necessary for the
state to prove that he intended to kill the victim to find
him guilty of accessory to murder. The state contends
that the defendant waived this claim. We agree with
the state and conclude that, pursuant to State v. Kitch-
ens, 299 Conn. 447, 480, 10 A.3d 942 (2011) (‘‘Connecti-
cut courts have deemed a claim of instructional error
implicitly waived when the defense failed to take excep-
tion to, and acquiesced in, the jury instructions follow-
ing one or more opportunities to review them’’), the
defendant waived any claim regarding the court’s
instructions on the accessory to commit murder charge.
‘‘Whether a defendant waives the right to challenge
jury instructions is a question of law over which we
exercise plenary review. . . . Relevant to the issue of
waiver in the context of jury instruction claims, our
Supreme Court stated that when the trial court provides
counsel with a copy of the proposed jury instructions,
allows a meaningful opportunity for their review, solic-
its comments from counsel regarding changes or modi-
fications and counsel affirmatively accepts the
instructions proposed or given, the defendant may be
deemed to have knowledge of any potential flaws
therein and to have waived implicitly the constitutional
right to challenge the instructions on direct appeal.
Such a determination by the reviewing court must be
based on a close examination of the record and the
particular facts and circumstances of each case. . . .
To determine whether . . . the defendant implicitly
waived his claim of instructional error, we . . . turn
to a close examination of the record and the particular
facts and circumstances of [the] case.’’ (Citations omit-
ted; internal quotation marks omitted.) State v. Bialo-
was, 160 Conn. App. 417, 426, 125 A.3d 642 (2015).
The following additional facts support our conclusion
that the defendant waived his claim of instructional
error. At the March 11, 2013 charging conference, which
took place on the record, the court indicated that it
had sent its proposed final jury instructions to counsel
via e-mail the day before. It stated that the document
was thirty-five pages in length, and it then confirmed
that the clerk had a copy of those instructions for the
record. During the conference, all parties indicated that
they had received copies of the proposed instructions
via e-mail and that they had reviewed them. Both attor-
neys also had e-mailed the judge regarding the proposed
instructions, and copies of these e-mails were made
part of the record. In an e-mail, defense counsel had
indicated that he wanted a particular instruction on
missing evidence, but that, otherwise, ‘‘the proposed
jury instructions, as written [were] fair to both parties.’’
The prosecutor indicated that he was taking an excep-
tion to certain aspects of the proposed instructions.5
During the charging conference, the court carefully
went over each page of the proposed instructions, giv-
ing counsel an opportunity to indicate any objections
or to make suggestions. As to the court’s proposed
instruction on the intent element of accessory to mur-
der, defense counsel voiced no objection at the charging
conference, and the language regarding intent of which
the defendant now complains was unchanged from the
court’s e-mailed instructions.6
The defendant concedes that his claim of instruc-
tional error is not preserved, but he, nonetheless, asks
that we conduct a plain error analysis.7 See Practice
Book § 60-5. This court, having determined that the
waiver of an instructional claim thwarts plain error
review; see State v. Bialowas, supra, 160 Conn. App.
430 (defendant’s waiver precludes application of plain
error doctrine); State v. Jackson, 159 Conn. App. 670,
678, 123 A.3d 1244 (2015) (same); State v. Fuller, 158
Conn. App. 378, 390–91, 119 A.3d 589 (2015) (same);
declines the defendant’s invitation to conduct a plain
error analysis here.
Following our examination of the record in this case,
we conclude that the defendant has waived his claim
of instructional error, and, in accordance with our
recent case law, we further conclude that such a waiver
precludes us from finding plain error on appeal. See
State v. Kitchens, supra, 299 Conn. 474 n.18 (‘‘a valid
waiver precludes a finding that a jury instruction consti-
tutes plain error because a valid waiver means that
there is no error to correct’’).
III
The defendant also claims that the court, in violation
of his right to due process, improperly instructed the
jury on the substantial step portion of the attempt stat-
ute, § 53a-49,8 when reading its instructions on the crime
of attempt to commit murder.9 The state responds that
any error in the court’s substantial step instruction was
harmless beyond a reasonable doubt. We agree with
the state.
‘‘An alleged defect in a jury charge which raises a
constitutional question is reversible error if it is reason-
ably possible that, considering the charge as a whole,
the jury was misled. . . . In performing harmless error
analysis, we keep in mind that [i]n determining whether
it was indeed reasonably possible that the jury was
misled by the trial court’s instructions, the charge to
the jury is not to be critically dissected for the purpose
of discovering possible inaccuracies of statement, but
it is to be considered rather as to its probable effect
upon the jury in guiding them to a correct verdict in
the case. . . . The charge is to be read as a whole and
individual instructions are not to be judged in artificial
isolation from the overall charge. . . .
‘‘When a jury is misinstructed on an essential element
of a crime and a reviewing court can find that the record
developed at trial establishes guilt beyond a reasonable
doubt, the interest in fairness has been satisfied and
the judgment should be affirmed. . . . Further, a jury
instruction that improperly omits an essential element
from the charge constitutes harmless error if a
reviewing court concludes beyond a reasonable doubt
that the omitted element was uncontested and sup-
ported by overwhelming evidence, such that the jury
verdict would have been the same absent the error
. . . .’’ (Citations omitted; emphasis omitted; internal
quotation marks omitted.) State v. Padua, 273 Conn.
138, 166–67, 869 A.2d 192 (2005); see also State v. John-
son, 316 Conn. 45, 58, 111 A.3d 436 (2015). Assuming,
without deciding, that the court’s instructions were
infirm in this instance, we conclude, nevertheless, that
the state has established that any purported error was
harmless beyond a reasonable doubt.
In the present case, the defendant concedes that the
evidence was sufficient to prove that he was guilty of
the crime of attempt to commit murder, acting as an
accessory. The evidence clearly established that the
defendant conspired with Riley and Mack to participate
in a drive-by shooting; the defendant drove the vehicle
while Riley and Mack shot the victims, killing Foster
and attempting to kill Sutherland. The jury found the
defendant guilty of conspiracy and accessory to murder
on the basis of this evidence. It is beyond any reasonable
doubt that this same evidence established the defen-
dant’s guilt on the charge of attempt to commit murder.
Accordingly, the interest in fairness has been satisfied.
See State v. Padua, supra, 273 Conn. 167; see also State
v. Johnson, supra, 316 Conn. 58.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was charged with, but acquitted of, accessory to
capital felony in violation of General Statutes (Rev. to 2005) § 53a-54b (8)
and § 53a-8 (a). General Statutes § 53a-54b is now known as murder with
special circumstances.
2
The defendant briefed two additional claims, namely, that the state pro-
duced insufficient evidence of all crimes charged and that harmful error
occurred because the jury was instructed that it could find him guilty on
counts two, three, and four on the basis of one witness’ testimony. He
specifically abandoned these claims in his reply brief. We also confirmed
his abandonment of these claims for the record during oral argument before
this court.
3
‘‘[U]nder the Pinkerton doctrine . . . a coconspirator’s intent . . . may
be imputed to a defendant who does not share that intent . . . . The ratio-
nale for liability under this theory is that [w]hen the defendant has played
a necessary part in setting in motion a discrete course of criminal conduct
. . . he cannot reasonably complain that it is unfair to hold him vicariously
liable . . . for the natural and probable results of that conduct that, although
he did not intend, he should have foreseen. . . .
‘‘[T]o be guilty as an accessory one must share the criminal intent and
community of unlawful purpose with the perpetrator of the crime and one
must knowingly and wilfully assist the perpetrator in the acts which prepare
for, facilitate or consummate it. . . . Thus, [u]nlike coconspirator liability
under Pinkerton . . . accessorial liability pursuant to § 53a-8 requires the
defendant to have the specific mental state required for the commission of
the substantive crime.’’ (Citations omitted; internal quotation marks omit-
ted.) State v. Bennett, 307 Conn. 758, 764–65, 59 A.3d 221 (2013), discussing
Pinkerton v. United States, 328 U.S. 640, 647–48, 66 S. Ct. 1180, 90 L. Ed.
1489 (1946).
We note that in the present case, although the state argued the Pinkerton
doctrine as one of the alternative theories of liability for the capitol felony
and murder charges, and the court instructed the jury on this doctrine, no
mention of Pinkerton liability is present in the long form information.
Our Supreme Court has stated that a trial court commits error when it
instructs on this theory when the theory is not present in the charging
document; nevertheless, the claim of error may be abandoned by the defen-
dant’s failure to raise it. See State v. Hampton, 293 Conn. 435, 446 n.9, 988
A.2d 167 (2009).
In Hampton, the parties, during a charging conference, discussed with
the trial court that, on count eight of the information, the defendant ‘‘could
be found liable as a principal, as an accessory, or under the Pinkerton
doctrine of vicarious liability.’’ Id. In response, the ‘‘trial court . . . charged
the jury in accordance with this discussion. This, however, was incorrect.
Count eight of the information alleged only that the defendant had acted
as an accessory by aiding [another] in sexually assaulting the victim. Accord-
ingly, the trial court’s jury instruction as to count eight was inconsistent
with the crime charged in the information. Although [t]he trial court cannot
by its instruction change the nature of the crime charged in the information
. . . it is significant that neither the state nor the defendant took exception
to this instruction at trial, and that, on appeal, the defendant has not chal-
lenged this specific aspect of the instruction. We therefore treat this claim
as abandoned.’’ (Citations omitted; emphasis omitted; internal quotation
marks omitted.) Id.
Likewise, here, because the defendant has not raised this issue on appeal,
we deem it abandoned. See id.
4
Nowhere in the information or in the court’s final instructions was there
mention that Cinque Sutherland is the victim in the attempt to commit
murder charge. The state did argue that Sutherland was the victim in this
charge, and there was evidence to substantiate that argument. The defendant
does not claim any error regarding the failure to name Sutherland in the
information or in the court’s final instructions.
5
The prosecutor’s exceptions, however, are not relevant to the claims
the defendant is making on appeal.
6
Specifically, the court’s proposed instruction, sent to counsel via e-mail,
provided in relevant part: ‘‘The defendant is charged in count two with the
murder of Kerry Foster, even though the state is not alleging that the defen-
dant directly participated in the commission of the murder. He is charged
as an accessory. The defendant is also charged, in count three with conspir-
acy to commit murder.
‘‘I have provided the elements of the crime of murder previously. However,
with respect to intent in this particular count, it is not necessary for a
conviction of murder that the state prove that the defendant intended to
kill Kerry Foster.’’
During trial, the court’s actual instruction to the jury on this count provided
in relevant part: ‘‘Now, our next offense is alternative theory of liability of
murder. This is count two in the information. The defendant is charged in
count two with the murder of Kerry Foster, even though the state is not
alleging that the defendant directly participated in the commission of the
murder. He is charged as an accessory. The defendant is also charged in
count three . . . with conspiracy to commit murder . . . .
‘‘I have provided the elements of the crime of murder previously. However,
with respect to intent in this particular count, it is not necessary for a
conviction of murder that the state prove that the defendant intended to
kill Kerry Foster.’’
Thus, the proposed instruction, which counsel reviewed and accepted,
was virtually identical to the instruction given to the jury.
7
For preservation purposes, the defendant also requested review of his
claim of instructional error under State v. Golding, 213 Conn. 233, 567 A.2d
823 (1989), in the event that our Supreme Court overrules Kitchens. We
note that, ‘‘[i]n the usual Golding situation, the defendant raises a claim on
appeal [that], while not preserved at trial, at least was not waived at trial.
. . . [A] constitutional claim that has been waived does not satisfy the third
prong of the Golding test because, in such circumstances, we simply cannot
conclude that injustice [has been] done to either party . . . or that the
alleged constitutional violation . . . exists and . . . deprived the defen-
dant of a fair trial . . . .’’ (Citation omitted; emphasis omitted; internal
quotation marks omitted.) State v. Holness, 289 Conn. 535, 543, 958 A.2d
754 (2008).
8
General Statutes § 53a-49 provides: ‘‘(a) A person is guilty of an attempt
to commit a crime if, acting with the kind of mental state required for
commission of the crime, he: (1) Intentionally engages in conduct which
would constitute the crime if attendant circumstances were as he believes
them to be; or (2) intentionally does or omits to do anything which, under the
circumstances as he believes them to be, is an act or omission constituting a
substantial step in a course of conduct planned to culminate in his commis-
sion of the crime.
‘‘(b) Conduct shall not be held to constitute a substantial step under
subdivision (2) of subsection (a) of this section unless it is strongly corrobo-
rative of the actor’s criminal purpose. Without negating the sufficiency of
other conduct, the following, if strongly corroborative of the actor’s criminal
purpose, shall not be held insufficient as a matter of law: (1) Lying in wait,
searching for or following the contemplated victim of the crime; (2) enticing
or seeking to entice the contemplated victim of the crime to go to the place
contemplated for its commission; (3) reconnoitering the place contemplated
for the commission of the crime; (4) unlawful entry of a structure, vehicle
or enclosure in which it is contemplated that the crime will be committed;
(5) possession of materials to be employed in the commission of the crime,
which are specially designed for such unlawful use or which can serve
no lawful purpose of the actor under the circumstances; (6) possession,
collection or fabrication of materials to be employed in the commission of
the crime, at or near the place contemplated for its commission, where such
possession, collection or fabrication serves no lawful purpose of the actor
under the circumstances; (7) soliciting an innocent agent to engage in con-
duct constituting an element of the crime.
‘‘(c) When the actor’s conduct would otherwise constitute an attempt
under subsection (a) of this section, it shall be a defense that he abandoned
his effort to commit the crime or otherwise prevented its commission, under
circumstances manifesting a complete and voluntary renunciation of his
criminal purpose.’’
9
The court’s proposed instructions on attempt to commit murder, sent
to counsel via e-mail, provided: ‘‘The defendant is charged in count four
with attempt to commit murder. I have already defined murder. The statute
defining attempt reads in pertinent part as follows:
‘‘[A] person is guilty of an attempt to commit a crime if, acting with the
kind of mental state required for the commission of the crime, he intention-
ally engages in conduct which would constitute the crime in attendant
circumstances were as he believes them to be.
‘‘For you to find the defendant guilty of this charge, the state must prove
the following elements beyond a reasonable doubt:
‘‘Element 1—Intent. The first element is that the defendant had the kind
of mental state required for commission of the crime of murder. The intent
for that crime is the specific intent to cause murder.
‘‘Element 2—Conduct. The second element is that defendant intentionally
engaged in conduct that would constitute the crime of murder if attendant
circumstances were as he believed them to be. Please refer to the definition
of murder.
‘‘Conclusion. If, upon all the evidence, you conclude beyond a reasonable
doubt that the defendant had formed in his mind the intention to commit
murder as it has been defined for you, you must consider whether he
intentionally did anything that would constitute the crime if the circum-
stances were as he believed them to be. In other words, the state must prove
both intent and conduct beyond a reasonable doubt to obtain a conviction.
‘‘If you unanimously find that the state has proved beyond a reasonable
doubt each of the elements of the crime of attempt to commit murder, then
you shall find the defendant guilty. On the other hand, if you unanimously
find that the state had failed to prove beyond a reasonable doubt any of
the elements, you shall then find the defendant not guilty.’’
The court’s actual instructions to the jury on the attempt to commit
murder count are set forth fully in part I B of this opinion. We note that
the only substantive change in the actual instructions from those proposed
by the court, and to which the defendant agreed, was the court’s addition
of the sentence that reads: ‘‘There must be a substantial step toward the
completion of the criminal act.’’
To the extent that the defendant argues, in part, that the court improperly
gave an instruction under § 53a-49 (a) (1), the attendant circumstances
portion of the attempt statute, we note that the court’s proposed instructions
contained that language, and that the defendant raised no objection to the
language, thereby waiving any claim of error. Nevertheless, the defendant
also argues that the court’s instruction on § 53a-49 (a) (2), the substantial
step portion of the attempt statute, amounted to harmful error. Because
the court added a single sentence regarding ‘‘substantial step’’ to its proposed
instruction, as emphasized in the preceding quotation, thereby incorporating
§ 53a-49 (a) (2) into its jury instructions, we review the defendant’s claim.