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*********************************************** 
STATE OF CONNECTICUT v. RASHAD MOON

(AC 42130)

Lavine, Elgo and Pellegrino, Js.

Syllabus

Convicted of the crimes of felony murder, robbery in the first degree, and

conspiracy to commit robbery in the first degree, the defendant appealed.

The defendant’s conviction stemmed from an incident in which the

defendant and M attempted to rob the victim, F, of two computer tablets

he had advertised for sale via an internet posting. Upon meeting the

defendant and M to sell the tablets, F was shot while he was sitting in

his car near the defendant’s home and, subsequently, died from his

injuries. On appeal, the defendant claimed, inter alia, that the trial court

erred in providing the jury with a supplemental instruction regarding

the use of force element of robbery in response to a question from the

jury. Held:

1. The court did not err when it provided the jury with a supplemental

instruction in response to its question regarding the use of force element

of robbery in the first degree: the defendant’s claim that the court

introduced a new theory of liability, namely, accessorial liability, when

it added the phrase ‘‘another participant’’ to the instructions on the use

of physical force element of robbery in the first degree was unavailing,

as the statute (§ 53a-134 [a]) governing robbery in the first degree, which

provides that a person may be guilty of robbery in the first degree if

he or another participant in the crime uses or threatens the use of a

dangerous instrument, provides for both principal and accessorial liability, and, thus, the court, by adding the phrase ‘‘another participant,’’

tailored the instruction so that it more closely mirrored the statute, and

its supplemental instruction was adapted to the state’s theory of the

case that the defendant was a participant in the robbery; moreover, the

supplemental instruction did not invade the province of the jury or

suggest a preferred verdict, as it appropriately clarified an element of

an existing charge against the defendant, was a proper statement of the

law and used permissive language, which made it clear that the court

was not instructing the jury to find that the defendant was a participant

in the robbery.

2. The defendant could not prevail on his claim that the court erred when

it declined to poll the jurors on his affirmative defense to the felony

murder charge, which was based on his claim that the applicable rule

of practice (§ 42-31) requires the court to poll jurors on affirmative

defenses, as the mandatory language of that provision expressly provides

that the rule applies only to the jurors’ verdict: where, as here, the court

did not direct the jury to return any verdict other than a general one,

the court was required only to poll the jurors concerning whether they

found the defendant unanimously guilty or not guilty of the charges

against him and not whether they found that he had proved the affirmative defense, and because the jury instructions made clear that, to find

the defendant guilty of felony murder, the jury had to find, unanimously,

that he did not prove the affirmative defense, the clerk, in polling the

jurors on felony murder, necessarily polled them on the affirmative

defense; moreover, requiring that jurors be polled regarding the affirmative defense was analogous to providing the jurors with interrogatories,

which was not generally recognized as a part of Connecticut’s criminal procedure.

3. The trial court did not abuse its discretion by admitting into evidence

two spent shell casings that were found in the defendant’s house two

days after the shooting; although the defendant claimed that because

there was no connection between the shell casings and the shooting,

the casings were impermissible evidence of his criminal propensity, the

state introduced evidence connecting the shell casings to the shooting

death of the victim, including testimony that the shell casings came

from a .22 caliber gun, a statement from a witness that the witness had

seen the defendant with a .22 or .25 caliber gun, and testimony that the

victim’s wound was consistent with the type of wound created by a
bullet fired from a small caliber gun, and the shell casings were relevant

to the crime charges because they had a tendency to prove that the

defendant owned a firearm and, therefore, had the means to commit a

crime involving a small caliber gun.

4. The defendant could not prevail on his unpreserved claim that the trial

court improperly instructed the jury on conspiracy to commit robbery

in the first degree when it omitted the intent element required for the

underlying crime of robbery in the first degree by failing to instruct the

jury that it had to find that the defendant intended to commit a robbery

while he or another participant was armed: because the court provided

counsel with a meaningful opportunity to review the jury instructions

when it gave the parties a copy of the proposed jury instructions two

days prior to instructing the jury, defense counsel did not express any

concerns regarding the instructions on conspiracy to commit robbery

in the first degree and stated that the defendant did not need more time

to review the proposed jury instructions, and defense counsel failed to

object after the court instructed the jury on conspiracy, the defendant

waived his instructional claim; moreover, the defendant’s claim that the

court’s instruction on conspiracy to commit robbery in the first degree

constituted plain error was unavailing, as the court instructed the jury

on the intent requirement for conspiracy to commit robbery in the

first degree when it read from the conspiracy statute and set forth the

elements of the crime, and it provided the jury with detailed instructions

on the intent element of conspiracy to commit robbery in the first degree,

which made clear that the intent required for the charge was the intent

to commit the underlying crime of robbery in the first degree and that

the defendant had to intend for a participant in the crime to be armed

with a deadly weapon.

Argued April 11—officially released August 27, 2019

Procedural History

Information charging the defendant with the crimes

of felony murder, robbery in the first degree, and conspiracy to commit robbery in the first degree, brought

to the Superior Court in the judicial district of Hartford,

geographical area number fourteen, and tried to the

jury before Baldini, J.; verdict and judgment of guilty,

from which the defendant appealed. Affirmed.

Pamela S. Nagy, assigned counsel, for the appellant (defendant).

Laurie N. Feldman, special deputy assistant state’s

attorney, with whom, on the brief, were Gail P. Hardy,

state’s attorney, and David L. Zagaja, senior assistant

state’s attorney, for the appellee (state).
Opinion

PELLEGRINO, J. The defendant, Rashad Moon,

appeals from the judgment of conviction, rendered after

a jury trial, of felony murder in violation of General

Statutes § 53a-54c, robbery in the first degree in violation of General Statutes § 53a-134 (a) (2), and conspiracy to commit robbery in the first degree in violation

of General Statutes §§ 53a-48 and 53a-134 (a) (2). On

appeal, the defendant claims that the trial court improperly (1) instructed the jury on accomplice liability, (2)

failed to poll the jurors on the defendant’s affirmative

defense, (3) admitted into evidence two spent shell

casings that were unconnected to the crime, and (4)

instructed the jury on conspiracy to commit robbery

in the first degree without instructing it on the intent

required for robbery in the first degree. We disagree

and, accordingly, affirm the judgment of the trial court.

On the basis of the evidence adduced at trial, the

jury reasonably could have found the following facts.

In May, 2013, the victim, Felix DeJesus, and his fiancee ́

posted two T-Mobile Springboard tablets for sale on

Craigslist. The Craigslist posting stated that the tablets

were being sold for $300 each or $500 for both of them

and included the victim’s phone number. On May 8,

2013, at approximately 7 p.m., a prospective buyer of

the tablets called the victim. The prospective buyer said

that he did not have a car and asked the victim to meet

him in Hartford so that he could purchase the tablets.

The victim agreed to travel to Hartford and, shortly

after 7 p.m., the victim left his home in Cromwell with

the tablets.

At approximately 7:45 p.m., a resident of the neighborhood where the crime occurred, Gloria Therrien,

observed the victim park his car in front of 16 Allendale

Road. From inside her home, Therrien saw two men

approach the car and stand at its driver’s side window.

One of the men spoke to the victim through the front

driver’s side window while the other man stood next

to him. Therrien heard a gunshot and saw the two men

run away from the car, using a cut through that connected Allendale Road to Catherine Street. Therrien

then went outside and walked toward the victim’s car.

She observed that the car windows were open and that

the victim was in the driver’s seat of the car ‘‘jerking

. . . and gurgling.’’ Therrien asked some children who

were nearby to call 911 and report that someone had

been shot.

The police arrived at the scene at approximately 8

p.m. When Jeffrey Moody, an officer with the Hartford

Police Department (department), arrived, he saw the

victim’s car and noticed that its engine was running

and that the victim was inside. Moody approached the

car and found the victim unresponsive. Thereafter,

emergency services took the victim to Hartford Hospi-
tal, where he died of a single gunshot wound to the

head at approximately 3:46 a.m.

Chris Reeder, a detective with the department,

arrived at the scene at approximately 8:30 p.m., after

the victim had been taken to Hartford Hospital. Reeder

searched the interior of the victim’s car and found a TMobile Springboard Tablet and a white Samsung cell

phone. The police took possession of both items.

On May 9, 2013, the police extracted data from the

cell phone, which they determined had belonged to the

victim. The data extracted from the cell phone included

a series of text messages and phone calls between the

victim and a cell phone number that belonged to Marvin

Mathis, an individual who resided near the scene of the

crime. Around the time of the murder, there were text

messages between Mathis and the victim in which

Mathis instructed the victim to meet him at 16 Allendale Road.

That same day, Reeder went to speak with Mathis at

his home on Allendale Road. Mathis denied having any

knowledge of the shooting and stated that he was asleep

at home when the crime occurred. Mathis also stated

that he was with the defendant from approximately 6

to 7:30 p.m. on the night of the shooting and that while

they were together, the defendant borrowed his phone.

Mathis allowed Reeder to view his cell phone and

the text messages on the device. The text messages on

Mathis’ cell phone matched the text messages that the

police had extracted from the victim’s cell phone.

Mathis, however, denied sending the messages and

stated that the defendant must have sent them. Reeder

also observed that the call log on Mathis’ cell phone

revealed that, at approximately the time of the shooting,

there were calls between Mathis and the defendant. On

May 8, 2013, there were calls between the defendant

and Mathis at 6:02, 7:51, 7:52 and 9:53 p.m.

On May 12, 2013, Reeder spoke with the defendant

and the defendant’s girlfriend, Brittany Hegwood. Hegwood informed the police that on the night of the shooting, she witnessed Mathis and the defendant walk

‘‘down Catherine Street toward Hillside [Avenue]’’

together and that when the defendant returned approximately five minutes later he stated ‘‘[Mathis] just

shot somebody.’’

The defendant also provided the police with a statement in which he admitted that he was with Mathis on

the night of the shooting and that he went with Mathis

to meet the victim. The defendant stated that Mathis

told the defendant that he was going to buy ‘‘some stuff’’

from the victim. The defendant further stated that he

stood approximately thirty feet away from the victim’s

car while Mathis spoke with the victim through the

driver’s side window. The defendant stated that he

looked away from Mathis and heard a gunshot, at which
point he and Mathis ran away from the car to the defendant’s house on Catherine Street.

As part of their investigation, the police obtained a

search warrant for the defendant’s cell phone records.

The defendant’s cell phone records revealed calls

between the defendant and a phone number belonging

to an individual by the name of Jahvon Thompson on

May 10 and 14, 2013.

On May 23, 2014, approximately one year after the

shooting, Thompson, who was under arrest at the time,

spoke with Reeder. Thompson informed Reeder that

he and the defendant initially had planned to rob the

victim because they ‘‘were broke.’’ Thompson further

stated that ‘‘a day or two’’ before the crime he, the

defendant, and Mathis were together and that the defendant was texting the victim on Mathis’ phone. Thompson stated that ultimately he did not participate in the

robbery because ‘‘something came up.’’

Additionally, in May of 2014, an individual by the

name of Tyrell Hightower left three messages on a

police tip line, in which he indicated that he had information about a homicide that had occurred on Allendale

Road one year earlier. On June 2, 2014, Reeder met

with Hightower at Hartford Correctional Center, where

Hightower was incarcerated. During the meeting, Hightower informed Reeder that the defendant had confessed to him that he and Mathis were involved in the

murder of the victim. Hightower further stated that the

defendant had informed him that it was a ‘‘robbery that

went bad’’ and that Mathis had shot the victim.

In late June of 2014, the police arrested the defendant.

After a jury trial, the defendant was convicted of felony

murder, robbery in the first degree, and conspiracy to

commit robbery in the first degree. The court sentenced

the defendant to a total effective sentence of forty-nine

years of incarceration. This appeal followed. Additional

facts and procedural history will be set forth as necessary.

I

The defendant first claims that ‘‘[t]he trial court committed harmful error when, for the first time during

deliberations, [in response to a question from the jury]

it instructed the jurors that [the] defendant could be

convicted of robbery even if another person was the

one to use force . . . .’’ The defendant argues that the

court’s supplemental instruction suggested a verdict in

favor of the state, deprived him of the opportunity to

defend against this theory of liability and violated his

right to have the jurors properly instructed on the law.

We disagree.

We begin with the applicable standard of review and

the legal principles relevant to this claim. ‘‘[I]ndividual

jury instructions should not be judged in artificial isolation . . . but must be viewed in the context of the
overall charge. . . . The pertinent test is whether the

charge, read in its entirety, fairly presents the case to

the jury in such a way that injustice is not done to either

party under the established rules of law. . . . Thus,

[t]he whole charge must be considered from the standpoint of its effect on the [jurors] in guiding them to the

proper verdict . . . and not critically dissected in a

microscopic search for possible error. . . . Accordingly, [i]n reviewing a constitutional challenge to the

trial court’s instruction, we must consider the jury

charge as a whole to determine whether it is reasonably

possible that the instruction misled the jury. . . . In

other words, we must consider whether the instructions

[in totality] are sufficiently correct in law, adapted to

the issues and ample for the guidance of the jury. . . .

A challenge to the validity of jury instructions presents

a question of law over which [we have] plenary review.’’

(Internal quotation marks omitted.) State v. Berrios,

187 Conn. App. 661, 705–706, 203 A.3d 571, cert. denied,

331 Conn. 917, 204 A.3d 1159 (2019). This standard of

review also applies to supplemental instructions. State

v. Miller, 36 Conn. App. 506, 515, 651 A.2d 1318, cert.

denied, 232 Conn. 912, 654 A.2d 357 (1995).

Practice Book § 42-27 provides: ‘‘If the jury, after

retiring for deliberations, requests additional instructions, the judicial authority, after providing notice to

the parties and an opportunity for suggestions by counsel, shall recall the jury to the courtroom and give additional instructions necessary to respond properly to the

request or to direct the jury’s attention to a portion of

the original instructions.’’

The following additional facts and procedural history

are relevant to this claim. Count two of the information

charging the defendant alleged: ‘‘[O]n or about May 8,

2013 at 8:00 p.m. on Allendale Road in Hartford . . .

while in the course of the commission of a robbery

and in immediate flight therefrom, [the defendant] or

another participant in the crime was armed with a

deadly weapon.’’

During closing argument, the state argued that the

defendant was one of the two participants in the robbery and that it was legally irrelevant whether he or

Mathis shot the victim. The prosecutor stated: ‘‘The one

issue you have to analyze . . . is was [the defendant]

a participant in the robbery . . . .’’

After closing arguments, the court instructed the jury

on the law relevant to the case, including the charge

of robbery in the first degree.1 The court began its

instruction on robbery in the first degree by providing:

‘‘The defendant is charged in count two with robbery

in the first degree in violation of General Statutes § 53a134 (a) (2). The statute defining this offense reads in

pertinent part as follows: A person is guilty of robbery

in the first degree when in the course of the commission

of the crime of robbery, or immediate flight therefrom,
he, or another participant in the crime, is armed with

a deadly weapon.’’

The court stated the following with regard to the

elements of robbery: ‘‘[T]he following are elements of

robbery: (a) that the defendant was committing a larceny; (b) that the larceny was accomplished by the use,

or threatened immediate use, of physical force upon

another person; (c) for the purpose of preventing or

overcoming resistance to the taking of the property, or

to the retention thereof immediately after the taking,

or compelling the owner of such property or another

person to deliver up the property.’’2

Under the heading ‘‘(b) Use or Threat of Use of Physical Force,’’ the court provided: ‘‘The second element

of robbery is that the larceny was accomplished by the

use or threatened use of physical force.’’3

Under the heading ‘‘conclusion,’’ the court provided:

‘‘In summary, the state must prove beyond a reasonable

doubt the following elements of robbery in the first

degree: (1) the defendant was committing a larceny,

and (2) that he used physical force or threatened the

use of physical force for the purpose of preventing or

overcoming resistance to the taking of property or to

the retention of property immediately after the taking

or compelling the owner of the property or another

person to deliver up the property or to engage in other

conduct that aids in the commission of larceny; and (3)

that in the course of the commission of the robbery

or immediate flight from the crime, the defendant or

another participant in the crime was armed with a

deadly weapon.’’4

(Emphasis added.)

The court provided the jurors with a paper copy of

the jury instructions for their use during deliberations.

During deliberations, the jury sent the court the following note: ‘‘Does ‘the use or threat of use of physical

force’ element of robbery in the first degree require a

finding that the defendant personally used or threatened

the use of force or is it sufficient as to the ‘use or threat

of use of physical force’ element if, in the course of the

larceny, force was threatened by any party to the

larceny?

‘‘Explanation. The conclusion on [page] 17 of the

jury charge says ‘(2) that he used physical force or

threatened the use of physical force.’ On [page] 13,

element I and [page] 15, section (b) use or threat of

use of physical force, it says . . . ‘that the larceny was

accomplished by the use or threatened immediate use,

of physical force upon another person.’ ’’ (Emphasis

in original.)

Upon receiving the note from the jury, the court discussed the matter with counsel. Although the court

stated that it believed that the instruction on robbery

in the first degree was proper, it nonetheless proposed

responding to the jury’s note by adding the phrase
‘‘another participant’’ to the use of force instruction on

pages 15 and 17. The court explained that it was its

belief that the addition of this language would clarify

that the jury could find the defendant guilty of robbery

in the first degree if he or another participant in the

crime used or threatened the use of physical force.

Defense counsel objected, stating that the proposed

clarification would serve as an ‘‘unfair invasion of the

province of the jury’’ and improperly introduce the concept of accomplice liability. Defense counsel argued

that the original instruction properly stated the law and

that there was nothing the court needed to clarify or

correct. Instead of providing the jury with additional

clarifying instructions, defense counsel proposed

rereading the original instructions or, alternatively, adding the proposed language and rereading the entirety

of the instructions.

Over the defendant’s objection, the court decided to

provide the jury with the proposed clarification. The

court explained that pursuant to State v. Davis, 255

Conn. 782, 791 n.8, 772 A.2d 559 (2001), it did not need

to separately instruct on accessorial liability for robbery

in the first degree because the statute, on its face,

extends to principals and accessories. Furthermore, the

court stated that it believed simply rereading the charge

would not respond to the jury’s question.

The court called the jury to the courtroom and stated:

‘‘First, I believe that the instruction that I have given

you on page 13 is the correct recitation of the law. I

further believe that the law that I instructed on page

15 and page 17 is also the correct recitation of the law.

I do want to give you, by point of clarification, language

that you can consider which would be consistent with

all of the instructions that I gave you. With regard to

page 15, under paragraph (c) ‘Purpose of use of force.’5

You may consider another participant of the crime. So

the language would enable you to consider, if you find

that the defendant or another participant of the crime

used physical force or threatened . . . immediate use

of force in committing a larceny you must then determine whether such physical force was used or threatened for the purpose of and the language continues

from there. . . .

‘‘On page 17, consistent with the instructions that I

gave you, and the clarification that I just gave you,

under ‘conclusion,’ under paragraph two the law allows

you to consider another participant in the crime. The

language under the conclusion by way of clarification,

therefore, enables you to consider that he, meaning the

defendant, or another participant in the crime used

physical force or threatened the use of physical force

for the purpose of preventing or overcoming resistance

to the taking of property, or to the retention of property

immediately after the taking or compelling the owner

of the property or another person to deliver up the
property or to engage in other conduct that aids in the

commission of larceny.’’ (Emphasis added.)

On appeal, the defendant concedes that the court

was required to address the jury’s question, but argues

that the supplemental instruction improperly introduced a new theory of liability, namely, accessorial

liability.6

In support of his argument, the defendant cites

numerous cases from other jurisdictions, which, he

argues, demonstrate that it is error for a court to introduce a different theory of liability, and in particular

accessorial liability, for the first time in a supplemental

instruction. See, e.g., United States v. Gaskins, 849 F.2d

454 (9th Cir. 1988); People v. Millsap, 724 N.E.2d 942

(Ill. 2000); People v. Jamison, 566 N.E.2d 58 (Ill. App.

1991); State v. Hover, 362 P.3d 1125 (Kan. App. 2015);

State v. Johnson, 795 S.E.2d 171 (S.C. App. 2016); State

v. Ransom, 785 P.2d 469 (Wash. App. 1990). In citing

these cases, the defendant presupposes that the court,

introduced a new theory of liability when it added the

phrase ‘‘another participant’’ to the instructions on the

use of physical force element of robbery in the first

degree. We disagree.

General Statutes § 53a-134 (a) provides in relevant

part: ‘‘A person is guilty of robbery in the first degree

when, in the course of the commission of the crime of

robbery as defined in section 53a-133 or of immediate

flight therefrom, he or another participant in the crime

. . . (2) is armed with a deadly weapon . . . .’’

(Emphasis added.) The plain language of the statute

states that an individual may be guilty of robbery in the

first degree if he or another participant in the crime

uses or threatens the use of a dangerous instrument.

In State v. Davis, supra, 255 Conn. 791, n.8, our Supreme

Court concluded that § 53a-134 applies to both principals and accessories, stating: ‘‘[O]ur robbery statute,

§ 53a-134, includes explicit accessory language within

the text of the statute. . . . Because the robbery statute applies to principals and accessories on its face, the

court did not need to explain the concept of accessorial

liability to the jury as it relates to the robbery charge.’’

(Emphasis added.) Our Supreme Court also noted that

our law makes no ‘‘practical distinction between the

terms ‘accessory’ and ‘principal’ for the purposes of

determining criminal liability.’’ Id., 789.

The defendant argues that Davis does not control in

the present case because it is factually distinguishable.

The defendant points to the fact that the court in Davis

instructed on accessorial liability with regard to another

statute, whereas the court in the present case did not

instruct on accessorial liability at all. The lack of such

an instruction with regard to another charge in the

present case, however, is not a significant distinction

because § 53a-134 provides for both principal and

accessorial liability. Davis recognized this, stating that

an accessory instruction with regard to robbery in the
first degree was unnecessary because the robbery statute ‘‘includes explicit accessory language within the

text of the statute.’’ Id., 791, n.8. Thus, we conclude

that the defendant’s efforts to distinguish Davis are

unavailing.

Moreover, even if we assume that Davis is distinguishable, other cases from our appellate courts recognize that § 53a-134 applies to both principals and accomplices. State v. Crump, 201 Conn. 489, 495, 518 A.2d

378 (1986) (concluding ‘‘fact that the defendant was not

formally charged as an accessory does not preclude his

being so convicted’’ and defendant could be convicted

of robbery because evidence supported ‘‘conclusion of

the trial court of the defendant’s complicity as either

a principal or an accessory’’); State v. Harper, 184 Conn.

App. 24, 32, 194 A.3d 846 (‘‘the offense of robbery in

the first degree in violation of § 53a-134 [a] [2] does not

require proof that a defendant intended to possess a

deadly weapon’’), cert. denied, 330 Conn. 936, 195 A.3d

386 (2018); State v. Latorre, 51 Conn. App. 541, 552,

723 A.2d 1166 (1999) (evidence was sufficient to convict

defendant of robbery, despite lack of instruction on

accomplice liability, because defendant acted in concert with another).

In the present case, because § 53a-134 provides that

a defendant can be found guilty in the first degree if

he or another participant in the crime uses force, the

court, by adding the phrase ‘‘another participant,’’ tailored the instruction so that it more closely mirrored

the statute. Additionally, the court’s supplemental

instruction was adapted to the state’s theory of the

case. Throughout trial, the state’s theory of the case

was that the defendant was a participant in the robbery.

The state explicitly so stated during closing argument

when it repeatedly argued that it was legally irrelevant

whether the defendant or Mathis shot the victim

because there was ample evidence that the defendant

was a participant in the crime and had conspired with

the defendant to plan the robbery. Specifically, the state

argued: ‘‘Who actually killed [the victim] is not

important. . . . You don’t need that issue to resolve

the elements of the charges that you have before you.’’

Finally, we are unpersuaded by the defendant’s argument that the supplemental instruction invaded the

province of the jury or suggested a preferred verdict.

In support of this argument, the defendant cites to the

concurrence in State v. Devoid, 188 Vt. 445, 453–54, 8

A.3d 1076 (2010). Devoid, however, is factually distinguishable from the present case in that it involved a

supplemental instruction that introduced the crime of

attempt when the defendant had not, in any way, been

charged with attempt. Id. Furthermore, the court in

Devoid noted that the supplemental instruction did not

clarify an element of an existing charge, which would

have been within the trial court’s discretion. Id., 455.
By contrast, the supplemental instruction in the present

case appropriately clarified an element of an existing

charge against the defendant. Moreover, the supplemental instruction in the present case was a proper statement of the law. State v. Turner, 181 Conn. App. 535,

571, 187 A.3d 454 (declining to review claim that legally

correct response to jury question intruded on function

of jury), cert. granted on other grounds, 330 Conn. 909,

139 A.3d 48 (2018). Finally, the supplemental instruction

in the present case used permissive language, making

it clear that the court was not instructing the jury to find

that the defendant was a participant in the robbery.7

On the basis of the foregoing, we conclude that the

court did not err when it provided the jury with a supplemental instruction in response to its question regarding

the use of force element of robbery in the first degree.8

II

The defendant’s second claim is that the court erred

by refusing to poll the jurors on the affirmative defense

to felony murder. The defendant argues that the court’s

refusal to poll the jurors on the affirmative defense to

felony murder violated Practice Book § 42-31 and his

right to a unanimous verdict. We disagree.

We begin with the applicable standard of review and

the legal principles relevant to this claim. ‘‘The interpretation and application of a statute, and thus a Practice

Book provision, involve a question of law over which

our review is plenary. . . . When construing a statute,

[o]ur fundamental objective is to ascertain and give

effect to the apparent intent of the legislature. . . . In

other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied

to the facts of [the] case, including the question of

whether the language actually does apply. . . . In seeking to determine that meaning, General Statutes § 1-2z

directs us first to consider the text of the statute itself

and its relationship to other statutes. If, after examining

such text and considering such relationship, the meaning of such text is plain and unambiguous and does

not yield absurd or unworkable results, extratextual

evidence of the meaning of the statute shall not be

considered.’’ (Citation omitted; internal quotation

marks omitted.) Garvey v. Valencis, 177 Conn. App.

578, 583, 173 A.3d 51 (2017).

Practice Book § 42-31 provides: ‘‘After a verdict has

been returned and before the jury has been discharged,

the jury shall be polled at the request of any party or

upon the judicial authority’s own motion. The poll shall

be conducted by the clerk of the court by asking each

juror individually whether the verdict announced is

such juror’s verdict. If upon the poll there is not unanimous concurrence, the jury may be directed to retire

for further deliberations or it may be discharged.’’

The following additional facts and procedural history
are relevant to this claim. On December 2, 2016, after

closing arguments, the court instructed the jury on the

elements of felony murder: ‘‘One, that the defendant

with one or more . . . other persons committed the

crime of robbery. Two, that the defendant or another

participant in the crime of robbery as instructed caused

the death of another person. Three, that the defendant

or another participant caused the death while in the

course of and in furtherance of the commission of the

crime of robbery or an immediate flight therefrom. . . .

If you unanimously find that the state has proved all

elements, as I’ve instructed you, beyond a reasonable

doubt, your verdict would be guilty to one count felony murder.’’

Immediately thereafter, the court instructed the jury

on the affirmative defense to felony murder, stating:

‘‘The evidence in this case raises what the law calls an

affirmative defense. This affirmative defense applies

only to count one felony murder. An affirmative defense

constitutes a separate issue or circumstances that mitigate the degree of or eliminate[s] criminality or punishment. . . .

‘‘For you to find the defendant not guilty of this charge

the defendant must prove the following elements by a

preponderance of evidence. . . .

‘‘The first element is the defendant did not commit the

homicidal act or in any way solicit, request, command,

importune, cause or aid in the commission of it. . . .

‘‘The second element is that the defendant was not

armed with a deadly weapon or any dangerous instrument. . . .

‘‘The third element is that the defendant had no reasonable grounds to believe that any other participant

was armed with such a weapon or instrument. A reasonable ground to believe means that a reasonable person

in the defendant’s situation viewing the circumstances

from the defendant’s point of view would have shared

that belief. . . .

‘‘The fourth element is that the defendant had no

reasonable ground to believe that any other participant

intended to engage in conduct likely to result in death

or serious physical injury.’’

On December 5, 2016, the court informed the parties

that the jury had reached its verdict. Defense counsel

asked the court to poll the jurors ‘‘with respect to each

count as well as with respect to the affirmative defense

[to the charge of felony murder].’’ The state’s attorney

stated that he did not see any reason for the jurors

to be polled on the affirmative defense. In response,

defense counsel argued that it was proper to poll the

jurors on the affirmative defense because they had been

instructed that the affirmative defense requires unanimity. The court concluded that the jury would be polled

only with regard to the three counts charged and not
the affirmative defense because the defendant had not

previously submitted a request for the jury to be polled

on the affirmative defense and because ‘‘the verdicts

whatever they may be will resolve the issues with regard

to the affirmative defense.’’

The jury foreperson stated when polled by the clerk

that the jury had found the defendant guilty of felony

murder, robbery in the first degree and conspiracy to

commit robbery in the first degree. The clerk of court

accepted the verdict and polled each juror individually

with regard to the three counts. Each juror stated that

he or she had found the defendant guilty of felony

murder, robbery in the first degree, and conspiracy to

commit robbery in the first degree.

The defendant argues that Practice Book § 42-31

requires the court to poll jurors on affirmative defenses.

Although the defendant argues that ‘‘verdict

announced’’ includes affirmative defenses, he has failed

to direct our attention to any support for this assertion.

Indeed, the mandatory language of the provision

expressly provides that the rule applies only to the

jurors’ verdict. Moreover, in State v. Pare, 253 Conn.

611, 617, 755 A.2d 180 (2000), the case on which the

defendant relies in support of his assertion that the

court was required to poll the jury on the affirmative

defense, the court did not take issue with the trial

court’s failure to poll the jurors on the defense of

extreme emotional distress. Although the court in Pare

concluded that the trial court committed reversible

error when it failed to poll the jurors, the basis of its

conclusion was the court’s failure to poll each juror

individually, not the court’s failure to poll the jurors

with regard to the defense of extreme emotional distress. Id., 638. By contrast, in the present case, the clerk

individually polled each juror with regard to all three

of the charges against the defendant.

Moreover, requiring that jurors be polled regarding

the affirmative defense is analogous to providing the

jurors with interrogatories, which is not generally recognized as a part of Connecticut’s criminal procedure.

See Practice Book § 42-29 (‘‘[t]he verdict shall be general unless otherwise directed by the judicial authority,

but if the judicial authority instructs the jury regarding

the defense of mental disease or defect, the jury, if it

so finds, shall declare the finding in its verdict’’); State

v. Anderson, 158 Conn. App. 315, 333, 118 A.3d 728

(‘‘we will not probe into the logic or reasoning of the

jury’s deliberations or open the door to interminable

speculation’’), cert. granted, 319 Conn. 907, 123 A.3d

438 (2015) (appeal withdrawn on May 5, 2015), and cert.

granted on other grounds, 319 Conn. 908, 123 A.3d 437

(2015) (appeal withdrawn May 4, 2016); State v. Blake,

63 Conn. App. 536, 543–44, 777 A.2d 709 (concluding

trial court properly denied defendant’s request to submit to jury interrogatory on affirmative defense), cert.
denied, 257 Conn. 911, 782 A.2d 134 (2001). In the present case, because the court did not direct the jury to

return any verdict other than a general one, the court

was required only to poll the jurors on whether they

found the defendant unanimously guilty or not guilty

of the charges against him and not whether they found

that the defendant had proved the affirmative defense.

Finally, the jury instructions made clear that, in order

to find the defendant guilty of felony murder, the jury

had to find, unanimously, that the defendant did not

prove the affirmative defense. ‘‘[I]t is well established

that, [i]n the absence of a showing that the jury failed or

declined to follow the court’s instructions, we presume

that it heeded them.’’ (Internal quotation marks omitted.) Hurley v. Health Physicians, P.C., 298 Conn. 371,

401, 3 A.3d 892 (2010). The defendant does not argue

that the jury failed to follow any instructions, therefore,

we must assume that the jury followed the court’s

instructions on felony murder. Because the court

instructed the jury that it had to find that the defendant

did not satisfy the elements of the affirmative defense

before finding the defendant guilty of felony murder, the

clerk, in polling the jurors on felony murder, necessarily

polled them on the affirmative defense.

On the basis of the foregoing, we conclude that the

court did not err when it declined to poll the jurors on

the affirmative defense.

III

The defendant’s third claim is that the court abused

its discretion by admitting into evidence two spent shell

casings that were unconnected to the shooting. The

defendant argues that the court’s error allowed the jury

to assume that the defendant was a violent person who

must have possessed the murder weapon. We disagree.

We begin with the standard of review and legal principles relevant to this claim. ‘‘Relevant evidence is evidence that has a logical tendency to aid the trier in the

determination of an issue. . . . Evidence is relevant if

it tends to make the existence or nonexistence of any

other fact more probable or less probable than it would

be without such evidence. . . . To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it

is offered], even to a slight degree. . . . Evidence is

not rendered inadmissible because it is not conclusive.

All that is required is that the evidence tend[s] to support a relevant fact even to a slight degree, so long as

it is not prejudicial or merely cumulative. . . .

‘‘Although relevant, evidence may be excluded by the

trial court if the court determines that the prejudicial

effect of the evidence outweighs its probative value.

. . . Of course, [a]ll adverse evidence is damaging to

one’s case, but it is inadmissible only if it creates undue

prejudice so that it threatens an injustice were it to be
admitted. . . . The test for determining whether evidence is unduly prejudicial is not whether it is damaging

to the defendant but whether it will improperly arouse

the emotions of the jury. . . . Reversal is required only

[if] an abuse of discretion is manifest or [if an] injustice

appears to have been done.’’ (Internal quotation marks

omitted.) State v. Gray-Brown, 188 Conn. App. 446,

460–61, 204 A.3d 1161, cert. denied, 331 Conn. 922, 2015

A.3d 568 (2019).

‘‘When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. . . . [A] nonconstitutional error is harmless when an appellate court

has a fair assurance that the error did not substantially

affect the verdict. . . . [O]ur determination [of

whether] the defendant was harmed by the trial court’s

. . . [evidentiary ruling] is guided by the various factors

that we have articulated as relevant [to] the inquiry of

evidentiary harmlessness . . . such as the importance

of the . . . testimony in the [state’s] case, whether the

testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony

. . . on material points, the extent of cross-examination otherwise permitted, and, of course, the overall

strength of the [state’s] case. . . . Most importantly,

we must examine the impact of the evidence on the

trier of fact and the result of the trial.’’ (Internal quotation marks omitted.) State v. Grant, 179 Conn. App. 81,

90, 178 A.3d 437, cert. denied, 328 Conn. 910, 178 A.3d

1042 (2018).

The following additional facts and procedural history

are relevant to this claim. During trial, Reeder testified

that no gun was recovered and that the bullet fragment

removed from the victim was not suitable for ballistics

analysis. Reeder did testify, however, that the victim’s

wound was consistent with its having been made by a

bullet fired from a small caliber weapon.9

During Reeder’s testimony, the state sought to introduce into evidence two spent .22 shell casings found

in the defendant’s house two days after the shooting

and argued that it had laid a foundation sufficient for

their admission. In support of its proffer, the state

pointed to Thompson’s statement that the defendant

owned a .22 or .25 caliber gun and that the defendant

had told Thompson that he gave Mathis the gun. The

state also argued that these casings were relevant on

the basis of Reeder’s statement that a firearm of the

kind the defendant allegedly possessed would eject a

casing, yet no casings were found at the scene of the

crime.

Defense counsel objected to the admission of the

shell casings, arguing that there was nothing to tie them

to the crime, other than the statement by Thompson

that he had seen the defendant with a .22 or .25 caliber

gun. He further argued that because no evidence had
been presented as to when the casings were fired, they

could have been fired years before the commission of

the crime.

After hearing both parties, the court allowed the casings to be admitted as an exhibit, stating: ‘‘[R]obbery

in the first degree and the conspiracy to commit robbery

in the first degree . . . [require the state] to prove

beyond a reasonable doubt . . . that the individual or

any individual who participated in the crime was armed

with a deadly weapon. Certainly the possession of casings in the defendant’s home would be relative to the

issue of whether or not the defendant may have possessed or had access to a firearm. . . . I’ve considered

the fact that the testimony not only on direct and on

cross-examination has discussed the issue of the type

of gun that may have been used in this incident as well

as the statement that has just come in with regard to

witness Thompson addresses the issue of a revolver,

specifically a low caliber revolver. . . . I am going to

allow the admissibility of those casings, and allow those

introduced into evidence through this witness.’’

Thereafter, Reeder resumed testifying and read a

statement Thompson made to the police on May 23,

2014.10 Thompson stated in relevant part: ‘‘[The defendant] told me he gave [Mathis] his gun. I had seen [the

defendant] with this gun before. It is a revolver, a little

.22 or maybe a .25.’’ Reeder then testified that he executed a search warrant of the defendant’s home on May

10, 2013, in search of ‘‘the stolen tablet, ammunition

. . . firearms, [and] cellular phones.’’ During the

search, he found two .22 caliber shell casings in a ‘‘small

closet or pantry at the backside of the kitchen . . .

sitting on top of [a] shelf.’’ At this point, the state introduced the casings as a full exhibit.

The defendant argues on appeal that because there

was no connection between the shell casings and the

shooting, the casings are impermissible evidence of the

defendant’s criminal propensity. ‘‘Evidence as to articles found in the possession of an accused person subsequent to the time of the commission of a crime for

which he is being tried is admissible only if it tends to

establish a fact in issue or to corroborate other direct

evidence in the case; otherwise the law does not sanction the admission of evidence that the defendant possessed even instruments or articles adapted to the commission of other crimes. . . . The reason is analogous

to that applicable to evidence of other crimes committed by a defendant but unrelated to the offense under

investigation.’’ State v. Acklin, 171 Conn. 105, 114, 368

A.2d 212 (1976) (concluding masks and ropes seized

from defendants’ car were unrelated to crime because

‘‘state offered no evidence to show that the defendants

used the masks and rope in the commission of the

robbery with which they were charged, or that they

had contemplated their use in that robbery’’); see State
v. Girolamo, 197 Conn. 201, 205–209, 496 A.2d 948

(1985) (court erred by admitting into evidence two automatic handguns seized at defendant’s home that ‘‘ha[d]

no direct relevance to the issues in the case’’); State v.

Maner, 147 Conn. App. 761, 768–69, 83 A.3d 1182 (trial

court abused its discretion by admitting into evidence

firearm determined not to be firearm used in crime

charged), cert. denied, 311 Conn. 935, 88 A.3d 550

(2014); State v. Llera, 114 Conn. App. 337, 339, 969

A.2d 225 (2009) (trial court erred by allowing testimony

about defendant’s possession of Glock handgun when

weapon used in crime charged was Lugar handgun).

The cases identified by the defendant, however, are

distinguishable from the present case. In Maner and

Llera, this court concluded that the trial court abused

its discretion in admitting guns that were found in the

respective defendants’ possession because the guns

were not the weapons used in the commission of the

crime charged. In Acklin and Girolamo, the court determined that there was no evidence connecting the exhibits to the crimes charged. In the present case, forensic

scientists were unable to determine the type of gun

used in the shooting, but their testimony did not rule

out the use of a small caliber gun in the commission

of the crime. Additionally, in the present case, the state

introduced evidence connecting the shell casings to

the shooting death of the victim. The state introduced

testimony that the shell casings came from a .22 caliber

gun and Thompson’s statement that he had seen the

defendant with a .22 or .25 caliber gun. There was also

testimony that the victim’s wound was consistent with

the type of wound created by a bullet fired from a small

caliber gun.

Moreover, the casings are relevant to the crime

charged because they show that the defendant had the

means to commit the shooting. ‘‘Evidence indicating

that an accused possessed an article with which the

particular crime charged may have been accomplished

is generally relevant to show that the accused had the

means to commit the crime. The state does not have

to connect a weapon directly to the defendant and the

crime. It is necessary only that the weapon be suitable

for the commission of the offense.’’ (Emphasis omitted;

citation omitted; internal quotation marks omitted.)

State v. Franklin, 162 Conn. App. 78, 96, 129 A.3d 770

(2015) (testimony about defendant confronting witness

with gun three weeks before shooting relevant because

it indicated defendant had means to commit crime),

cert. denied, 321 Conn. 905, 138 A.3d 281 (2016); see

State v. Gray-Brown, supra, 188 Conn. App. 461–62

(empty nine millimeter Remington ammunition tray

found in defendant’s home was relevant to murder committed using nine millimeter bullets made by different

manufacturer); State v. VanAllen, 140 Conn. App. 689,

696, 59 A.3d 888 (shell casings found at scene of shooting where defendant was present were relevant despite
lack of evidence of type of gun used), cert. denied, 308

Conn. 921, 62 A.3d 1134 (2013); Langston v. Commissioner of Correction, 104 Conn. App. 210, 217–18, 931

A.2d 967 (silencer found in defendant’s home was relevant because it indicated defendant possessed gun),

cert. denied, 284 Conn. 941, 937 A.2d 697 (2007).

Like the evidence in those cases, the shell casings in

the present case indicate that the defendant had the

means to commit the crime. The shooting was committed with a firearm, and there is evidence that the firearm

used was a small caliber gun. Thus, the .22 caliber shell

casings, which were found in the defendant’s home,

have a tendency to prove that the defendant owned a

firearm and, therefore, that he had the means to commit

a crime involving a small caliber gun. See, e.g., Edward

M. v. Commissioner of Correction, 186 Conn. App. 754,

762–63, 201 A.3d 492 (‘‘The well settled standard for

relevance of evidence is extremely low. . . . [W]hether

to give such evidence no weight, little weight or much

weight, is up to the jury.’’ [Citations omitted; internal

quotation marks omitted.]), cert. denied, 305 Conn. 914,

46 A.3d 172 (2012).

On the basis of the foregoing, we conclude that the

trial court did not abuse its discretion by admitting into

evidence the spent shell casings.

IV

The defendant’s final claim is that the trial court’s

instruction on conspiracy to commit robbery in the

first degree was improper because it omitted the intent

element required for the underlying crime of robbery

in the first degree.The defendant argues that the court

failed to instruct the jury that it had to find that he

intended to commit a robbery while he or another participant was armed. We disagree.

The following additional facts and procedural history

are relevant to this claim. After closing arguments, the

court reviewed with counsel its proposed jury instructions, which it had provided to counsel two days earlier.

When the court asked whether counsel approved of

the instructions with regard to conspiracy to commit

robbery in the first degree, defense counsel stated that

they were acceptable. After going over the instructions,

the court asked whether there was anything else counsel would like to discuss. Both counsel responded, ‘‘no.’’

The court then inquired: ‘‘Does counsel need any more

time to review these jury instructions except for the

final copy that I will give to you?’’ Counsel responded

that they did not require any additional time.

Thereafter, the court instructed the jury. The instruction on conspiracy to commit robbery in the first degree

provided in relevant part: ‘‘The statute defining conspiracy reads in pertinent part as follows: A person is guilty

of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more
persons to engage in or cause the performance of such

conduct, and any one of them commits an overt act in

pursuance of such conspiracy. . . . The state must

prove the following elements beyond a reasonable

doubt: (1) the defendant intended to commit the crime

of robbery in the first degree; (2) the defendant agreed

with one or more persons to engage in or cause the

performance of the crime of robbery in the first degree;

[and] (3) the commission of an overt act in pursuance

of the conspiracy, by any one or more of the persons

who made the agreement.’’

With regard to the intent element of conspiracy to

commit robbery in the first degree, the court further

instructed: ‘‘The first element is that the defendant had

the intent that conduct constituting [robbery in the first

degree] be performed . . . . The defendant must be

proven to have been [motivated] by criminal intent. The

defendant may not be found guilty, unless the state has

proven beyond a reasonable doubt that he had specific

intent to violate the law, when he entered into an agreement to engage in the conduct constituting a crime.

You are referred to the court’s previous instructions on

intent, which are incorporated here with the same force

and effect.’’

On appeal, the defendant concedes that this claim

was not raised at trial, but argues that it can be reviewed

under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d

823 (1989), as modified by In re Yasiel R., 317 Conn.

773, 781, 120 A.3d 1188 (2015). The state argues that

the defendant is not entitled to Golding review because

he waived his claim regarding the jury instructions on

conspiracy. We agree with the state that the defendant

waived this claim.

‘‘[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.’’ State v.

Kitchens, 299 Conn. 447, 467, 482–83, 10 A.3d 942 (2011).

‘‘[W]hen 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. (Footnote omitted; internal quotation marks

omitted.) State v. Bellamy, 323 Conn. 400, 409, 147 A.3d

655 (2016).
In the present case, the court provided counsel with

a meaningful opportunity to review the instructions

when it gave the parties a copy of the proposed jury

instructions two days prior to instructing the jury.

Thereafter, the court solicited comments from counsel

regarding the proposed jury instructions. At this point,

defense counsel did not express any concerns regarding

the instructions on conspiracy to commit robbery in

the first degree and stated that he did not need more

time to review the proposed jury instructions. Moreover, defense counsel failed to object after the court

instructed the jury on conspiracy. Thus, defense counsel had various opportunities to object to the instruction

and failed to do so. Accordingly, we conclude that the

defendant waived his instructional claim.

Alternatively, the defendant argues that his claim can

be reviewed under the plain error doctrine. Although

a Kitchens waiver does not preclude claims of plain

error; see State v. McClain, 324 Conn. 802, 815, 155

A.3d 209 (2017); we disagree that the instruction was

plain error.

We first note that plain error is a doctrine of reversibility, not reviewability. See State v. Jamison, 320

Conn. 589, 595–97, 134 A.3d 560 (2016). ‘‘It is well established that the plain error doctrine, codified at Practice

Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that,

although unpreserved [and nonconstitutional in

nature], are of such monumental proportion that they

threaten to erode our system of justice and work a

serious and manifest injustice on the aggrieved party.

. . . That is, it is a doctrine that this court invokes in

order to rectify a trial court ruling that, although either

not properly preserved or never raised at all in the trial

court, nonetheless requires reversal of the trial court’s

judgment . . . for reasons of policy. . . . In addition,

the plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is

so obvious that it affects the fairness and integrity of

and public confidence in the judicial proceedings. . . .

Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is

the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of

the judgment under review. . . .

‘‘An appellate court addressing a claim of plain error

first must determine if the error is indeed plain in the

sense that it is patent [or] readily [discernible] on the

face of a factually adequate record, [and] also . . .

obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error

claim presented in light of the record.

‘‘Although a complete record and an obvious error

are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n

addition to examining the patent nature of the error,

the reviewing court must examine that error for the

grievousness of its consequences in order to determine

whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless

it has demonstrated that the failure to grant relief will

result in manifest injustice. . . . In State v. Fagan, [280

Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549

U.S. 1269, 127 S. Ct. 1491, 167 L.Ed.2d 236 (2007)], [our

Supreme Court] described the two-pronged nature of

the plain error doctrine: [An appellant] cannot prevail

under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so

harmful that a failure to reverse the judgment would

result in manifest injustice.’’ (Citation omitted; emphasis in original; footnote omitted; internal quotation

marks omitted.) State v. Jamison, supra, 595–97. The

standard of review relevant to claims of instructional

error is set forth in part I of this opinion.

The defendant argues that the court committed plain

error when it instructed the jury on conspiracy to commit robbery in the first degree because it failed to

instruct the jury on the requisite intent. Contrary to this

argument, the record reveals that the court instructed

on the intent requirement for conspiracy to commit

robbery in the first degree when it read from the conspiracy statute and set forth the elements of the crime.

Indeed, the court provided the jury detailed instructions

on the intent element of conspiracy to commit robbery

in the first degree, which made clear that the intent

required for the charge was the intent to commit the

underlying crime of robbery in the first degree and

referenced the immediately preceding five page charge

on robbery in the first degree.

The defendant relies on our Supreme Court’s decision

in State v. Pond, 315 Conn. 451, 453, 108 A.3d 1083

(2015), in support of its argument that the court committed plain error by failing to adequately instruct on the

intent requirement for conspiracy to commit robbery

in the first degree. In Pond, the defendant appealed

his conviction of conspiracy to commit robbery in the

second degree in violation of General Statutes (Rev. to

2007) §§ 53a-135 (a) (2) and 53a-48 (a), claiming that

the trial court improperly failed to instruct the jury that,

to find the defendant guilty of the conspiracy charge,

it must find that he specifically had intended that the

planned robbery would involve the display or threatened use of what the defendant’s coconspirator represented to be a deadly weapon or dangerous instrument.

The instruction with which the defendant took issue

began with a recitation of the conspiracy statute and

then provided: ‘‘The third element is that the defendant

has the intent to commit robbery in the second degree.

The intent for that crime is that at the time of the

agreement he intended to commit larceny.’’ (Emphasis
added.) State v. Pond, supra, 456.

Pond is distinguishable from the present case. In

Pond, the trial court improperly instructed the jury that

the requisite intent for conspiracy to commit robbery

in the second degree was intent to commit larceny, a

crime that does not require that the defendant intended

that a participant be armed. By contrast, in the present

case, the court made clear that the defendant had to

intend for a participant in the crime to use a deadly

weapon when it stated that the intent required for conspiracy to commit robbery in the first degree is the

intent to agree to commit the underlying crime of robbery in the first degree. Moreover, the court’s instructions on robbery in the first degree, which it incorporated by reference into its instruction on conspiracy,

provided that a participant in the crime had to be armed

with a deadly weapon in order to find the defendant

guilty of robbery in the first degree. The court’s instruction on robbery in the first degree provided: ‘‘The second element of robbery in the first degree is that in the

course of the commission of the crime of robbery, or

immediate flight therefrom, the defendant, or another

participant of the crime is armed with a deadly

weapon.’’ The court also instructed: ‘‘To be armed with

a deadly weapon means to be knowingly engaged with,

or knowingly carrying such an item.’’ (Emphasis added;

internal quotation marks omitted.) With regard to the

term knowingly, the court provided: ‘‘An act is done

knowingly if done voluntarily and purposely, and not

because of mistake, inadvertence or accident. . . . The

inference may be drawn if the circumstances are such

that a reasonable person of honest intention, in the

situation of the defendant, would have concluded that

he, or another participant, was armed with a deadly

weapon.’’ (Internal quotation marks omitted.) Because

the court’s instruction informed the jury that it needed

to find that the defendant intended that a participant

in the crime be armed with a deadly weapon, we are

unpersuaded that the court erred when it instructed

the jury on conspiracy to commit robbery in the first

degree, let alone that its instruction constituted plain

error such that it would cause the public to lose faith

in the judicial system or result in manifest injustice.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Neither the state nor the defendant requested that the court give an

instruction on accessorial liability.

2 This instruction was set forth on page 13 of the jury instructions.

3 This instruction was set forth on page 15 of the jury instructions.

4 This instruction was set forth on page 17 of the jury instructions.

5 Although the note from the jury asked about the instruction in section

(b) of page 15, the court clarified the language in section (c) of page 15.

Both sections of the instructions, however, addressed the use of force

element of robbery.

6

In his brief, the defendant argues that the introduction of this theory

was improper because it deprived him of the opportunity to argue against

the theory at closing argument and, therefore, defend against the theory at

trial. At oral argument, however, the defendant stated ‘‘the issue here is not
notice.’’ Even if we assume that the defendant did not intend to concede

the issue of notice, we conclude that the defendant was on notice of his

potential liability for the acts of Mathis.

The allegations in the information provided notice to the defendant that

he could be found liable for Mathis’ acts. The information, in charging the

defendant with robbery in the first degree, alleged that the defendant was

liable because ‘‘he or another participant in the crime was armed with a

deadly weapon’’ while in the course of the commission of a robbery and

immediate flight therefrom. (Emphasis added.) Additionally, throughout

trial, the state’s theory was that the defendant was a participant in the crime,

even though he might not have been the one who shot the victim. Thereafter,

during closing argument, the state made clear that it was arguing that the

defendant might not have been the shooter, but that he was a participant

in the crime. Moreover, our case law makes clear that ‘‘a defendant, charged

with an offense, is on notice that he may be convicted as an accessory to

that offense.’’ State v. Walton, 34 Conn. App. 223, 230, 641 A.2d 391, cert.

denied, 230 Conn. 902, 644 A.2d 916 (1994).

7 The court stated: ‘‘You may consider another participant of the crime.

So the language would enable you to consider, if you find that the defendant

or another participant of the crime used physical force . . . in committing

a larceny you must then determine whether such physical force was used

. . . .’’ (Emphasis added.)

8 The defendant also argues that he was prejudiced by the court’s error.

Although we conclude that the court did not err in providing the jury with

the supplemental instruction, even if we assume, arguendo, that it did, any

error was harmless given the strength of the evidence against the defendant.

9 As part of this claim that the testimony was inadmissable, the defendant,

with respect to Reeder’s testimony that the victim’s gunshot wound was

consistent with having been being caused by a bullet from a small caliber

weapon, refers to the fact that Reeder was not qualified as a ballistics expert.

Although Reeder was not qualified as a ballistics expert, the defendant

failed to timely object to this testimony and, therefore, this argument is not

reviewable on appeal. State v. Fernando, 331 Conn. 201, 211–12, 202 A.3d

350 (2019).

10 The court admitted Thompson’s statement for substantive purposes as

a prior inconsistent statement under State v. Whelan, 200 Conn. 743, 753,

513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct 597, 93 L. Ed. 2d 598 (1986).