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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 attorney, and John F. Fahey, senior assistant state’s attorney, 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 General 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 defendant 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 discussed conducting a drive-by shooting in the Nelton

Court area of Hartford. The trio had no specific victim 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 defendant 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 evidence 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 ourrole 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 accessory.’’ Moreover, the state argues, although the instructions of the trial court are notrelevant when considering

the sufficiency of the evidence, the trial court’s instructions in this case, read as a whole, permitted the jury

to find the defendant guilty of attempt to commit murder as an accessory.

The defendant, in rebuttal, argues that, although a

defendant who is charged as a principal can be convicted 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 thatthe 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 support a criminal conviction we apply a two-part test.

First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine

whether upon the facts so construed and the inferences

reasonably drawn therefrom the [finder of fact] reasonably 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 theory 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 principles 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 constitutional 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 convicted simply because the same result would likely

obtain on retrial. . . .

‘‘[I]n orderfor any appellate theory to withstand scrutiny 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 cognizable sense. . . . Thus, in conducting our analysis . . .

we must analyze the evidence adduced at trial to determine 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 substantial step in a course of conduct planned to culminate

in the commission of the crime.’’

A

The defendant concedes that the evidence was sufficient 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’).’’ (Footnote 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 conspiracy, 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 therefore, from the murder to the capital felony.’’ Nevertheless, 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 underthe 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 weapons. 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 liability 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 defendant] took? You know from the evidence that he drove

a car overto Clark Street, more specifically, down Clark

Street, with two passengers . . . who had loaded nine

millimeterfirearms, 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 addition 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 general rule is that ‘‘a defendant may be convicted as an

accessory even though he was charged only as a principal 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 defendant 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 instruction 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 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—

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 particular 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

forthe 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 prosecuted and punished as if he were the principal offender.

‘‘This statute does not connect those five acts specified 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 conscious 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 companion, 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 liability, 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 reasonable doubt any of the elements, you shall find the defendant not guilty.

‘‘Your possible verdicts as regards to this count would

be not guilty, guilty as an accessory, guilty as a coconspirator, or guilty as to both an accessory and a coconspirator. 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 reasonable 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 instructions 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 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 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 attendant 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 constitute 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

considerthe 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 constitute 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 defendant 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 opinion, 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 murder necessarily was part of its definition of murder.

When, during the instruction on attempt to commit murder, 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 instruction, in light of evidence presented, leads to conclusion

that court submitted robbery count on theory of accessorial 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 larceny 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 accessory 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. Kitchens, 299 Conn. 447, 480, 10 A.3d 942 (2011) (‘‘Connecticut courts have deemed a claim of instructional error

implicitly waived when the defense failed to take exception to, and acquiesced in, the jury instructions following 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, solicits comments from counsel regarding changes or modifications 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 omitted; internal quotation marks omitted.) State v. Bialowas, 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 attorneys 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 exception to certain aspects of the proposed instructions.5

During the charging conference, the court carefully

went over each page of the proposed instructions, giving 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 murder, 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 instructional 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 constitutes 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 statute, § 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 reasonably 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 supported 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. Johnson, 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 ofthis evidence. Itis beyond any reasonable

doubt that this same evidence established the defendant’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 produced 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 rationale 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 omitted.) 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 defendant’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. Accordingly, 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 challenged 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 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.’’

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 defendant 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 commission 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 corroborative 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 conduct 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 intentionally 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 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 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.