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STATE OF CONNECTICUT v.

THOMAS F. BONILLA

(SC 19056)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued October 21, 2014—officially released August 18, 2015

Daniel J. Foster, assigned counsel, for the appellant (defendant).

Timothy F. Costello, assistant state’s attorney, with

whom, on the brief, were Maureen Platt, state’s attorney, and Terence D. Mariani, senior assistant state’s

attorney, for the appellee (state).
Opinion

ROBINSON, J. The defendant, Thomas F. Bonilla,

appeals1

from the judgment of conviction, rendered

after a jury trial, of one count of murder as an accessory

in violation of General Statutes §§ 53a-8 (a)2 and 53a54a (a),3 and one count of felony murder in violation

of General Statutes § 53a-54c.4 On appeal, the defendant

claims that: (1) the evidence was insufficient to support

his conviction of murder as an accessory; and (2) the

trial court improperly failed to instruct the jury, sua

sponte, on the defense of duress, which is defined in

General Statutes § 53a-14.5 We disagree with both

claims and, accordingly, affirm the judgment of the

trial court.

The record reveals the following facts, which the jury

reasonably could have found, and procedural history.

On the evening of April 10, 1998, the defendant and

his brothers, Noel Bermudez and Victor Santiago, were

celebrating their reunion after a long period apart. The

brothers’ celebration initially entailed driving around

Waterbury, drinking liquor, and snorting heroin. At

some point during the evening, the defendant noticed

that Bermudez was carrying a gun—which did not surprise him, because Bermudez always carried a gun.

Eventually, Santiago suggested that the brothers

should rob Freddy Morales, the owner of a barin Waterbury. In proposing this robbery to his brothers, Santiago

explained that he had been stalking Morales, and

believed that Morales would be carrying lots of money

after closing up his bar that night. The defendant knew

that Santiago had a long-standing grudge against

Morales because, a few years prior, Morales had shot

Santiago during a fight at that same bar. Santiago still

bore scars from that shooting on his neck. Although

the defendant expressed some reluctance, he ultimately

went along with this plan ‘‘because of how [his] family

rolls . . . .’’

Santiago drove his brothers to the street where

Morales lived. Bermudez and the defendant exited the

car, and then waited nearby for Morales to return home

from his bar. Approximately fifteen minutes later, they

saw Morales. Bermudez sneaked up behind Morales on

foot, while the defendant stayed back about ‘‘ten to

fifteen feet . . . to look out in case something went

wrong.’’ Bermudez then demanded that Morales give

up his money, pointed a gun at his chest, and shot him

twice. After Bermudez grabbed a bank bag from the

coat Morales was wearing, he and the defendant took

offrunning to the getaway car, and Santiago drove them

away. By the time emergency personnel responded to

the scene of the shooting, Morales was dead.

Immediately after the shooting, the three brothers

went to Santiago’s house. Santiago’s wife, Damaris

Algarin-Santiago, came downstairs and saw the three
brothers sorting through a pile of cash and checks on

her coffee table. Bermudez told Algarin-Santiago that he

had shot Morales, which the defendant quickly followed

upon by threatening Algarin-Santiago, stating, ‘‘if you

say anything . . . I’m going to kill you and kill your

mother.’’ The defendant asked Algarin-Santiago to

deposit the stolen checks in her banking account, but

Algarin-Santiago refused, and so one of the brothers

burned the checks. The brothers continued destroying

evidence by burning their clothes and cleaning the getaway car. Thereafter, Santiago and Algarin-Santiago left

the house, and Santiago disposed of the disassembled

murder weapon in three different locations. The night

concluded when Santiago and Algarin-Santiago

returned home and the brothers concocted an alibi.

The murder remained unsolved for more than a

decade. By April, 2010, however, Santiago and AlgarinSantiago were estranged, and the latter gave information about the murder to the police. On April 11, 2010,

the police arrested the defendant for his involvement

with the murder. The defendant then gave a detailed

statement about the murder to the police.

The state charged the defendant, in a two count substitute information, with murder as an accessory and

felony murder.6 The case was tried to a jury. At trial,

after the state rested, the court denied the defendant’s

oral motion for a directed verdict. The defendant then

rested his case without presenting any evidence. On

May 10, 2012, the jury returned a verdict of guilty on

both counts. During a subsequent sentencing hearing,

the trial court initially stated that it would sentence the

defendant to sixty years imprisonment for each count,

with the sentences to run concurrently. At the state’s

request, however, the court stated that it would instead

merge the convictions and attach one sentence of sixty

years imprisonment to the felony murder count, and

rendered judgment accordingly. This direct appeal

followed.

I

We begin with the defendant’s claim that the evidence

was insufficient to support his conviction of murder as

an accessory. Specifically, the defendant argues that,

contrary to the requirements of §§ 53a-8 (a) and 53a54a (a), ‘‘[t]here [was] no evidence that [he] had any

intent or conscious objective to cause the death of

. . . Morales.’’ The defendant contends that, ‘‘[e]ven if

personal animus made . . . Morales a more attractive

victim for this crime in Santiago’s mind,’’ it does not

necessarily follow that the brothers all shared the specific intent to kill Morales during the robbery.7 Citing

State v. Bennett, 307 Conn. 758, 774, 59 A.3d 221 (2013),

in which this court recently concluded that there was

insufficient evidence that a participant in a burglary

shared his coparticipant’s intent to cause the death of

a victim, the defendant asserts that the circumstances
ofthe present case are even less egregious. In particular,

he contends that, unlike the defendant in Bennett, there

was no evidence adduced at trial that he participated

substantially in the events surrounding the murder or

carried a weapon to the scene of the crime. In response,

the state argues that evidence was indeed presented

at trial regarding the defendant’s intimate involvement

before, during, and after the shooting, and that the jury

reasonably could have inferred from that evidence that

the defendant shared the intent to cause the death of

Morales.8 Distinguishing Bennett, the state also asserts

that, in the present case, there was evidence of a shared

fraternal motive to kill Morales that was independent

of the predicate crime of robbery, namely, to retaliate

against Morales for his having shot Santiago in the neck.

We agree with the state, and conclude that the evidence

was sufficient for the jury to find that the defendant

shared the intent to cause the death of Morales.

‘‘In reviewing a sufficiency of the evidence claim, we

construe the evidence in the light most favorable to

sustaining the verdict, and then determine whether

from the facts so construed and the inferences reasonably drawn therefrom, the trier of fact reasonably could

have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.’’

Id., 763. Although ‘‘the jury must find every element

proven beyond a reasonable doubt in order to find the

defendant guilty of the charged offense . . . each of

the basic and inferred facts underlying those conclusions need not be [proven] beyond a reasonable doubt.

. . . If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the

jury is permitted to consider the fact proven and may

consider it in combination with other proven facts in

determining whether the cumulative effect of all the

evidence proves the defendant guilty of all the elements

of the crime charged beyond a reasonable doubt. . . .

‘‘Moreover, it does not diminish the probative force

of the evidence that it consists, in whole or in part, of

evidence that is circumstantial rather than direct. . . .

It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving

substantial circumstantial evidence. . . . In evaluating

evidence, the [finder] of fact is not required to accept

as dispositive those inferences that are consistent with

the defendant’s innocence. . . . The [finder of fact]

may draw whatever inferences from the evidence or

facts established by the evidence it deems to be reasonable and logical.’’ (Internal quotation marks omitted.)

State v. Crespo, 317 Conn. 1, 16–17, A.3d (2015).

The defendant challenges the sufficiency of the evidence only with regard to the intent element of his

murder as an accessory conviction. See footnotes 2 and

3 of this opinion. We note that, ‘‘[t]o be guilty as an

accessory one must share the criminal intent and com-
munity of unlawful purpose with the perpetrator of the

crime . . . .’’ (Emphasis added; internal quotation

marks omitted.) State v. Sargeant, 288 Conn. 673, 680,

954 A.2d 839 (2008). In accordance with our murder

statute, a conviction of murder as an accessory thus

requires, inter alia, that the accessory shared the perpetrator’s ‘‘intent to cause the death of another person

. . . .’’ General Statutes § 53a-54a (a). ‘‘A person acts

‘intentionally’ with respect to a result . . . described

by a statute defining an offense when his conscious

objective is to cause such result . . . .’’ General Statutes § 53a-3 (11).

As we have observed on multiple occasions, ‘‘[t]he

state of mind of one accused of a crime is often the

most significant and, at the same time, the most elusive

element of the crime charged. . . . Because it is practically impossible to know what someone is thinking

or intending at any given moment, absent an outright

declaration of intent, a person’s state of mind is usually

[proven] by circumstantial evidence . . . .’’ (Citation

omitted.) State v. Rodriguez, 180 Conn. 382, 404, 429

A.2d 919 (1980). For example, intent may be proven by

‘‘conduct before, during and after [a] shooting. Such

conduct yields facts and inferences that demonstrate

a pattern of behavior and attitude toward the victim by

the defendant that is probative of the defendant’s mental state.’’ (Internal quotation marks omitted.) State v.

Bennett, supra, 307 Conn. 766.

We briefly revisit the most relevant evidence in this

case, being mindful that we must construe it in the light

most favorable to sustaining the verdict. Id., 763. At

trial, the defendant’s statement to the police was read

into evidence. In it, he described how Santiago had

‘‘hated’’ Morales ever since Morales shot Santiago ‘‘during a gang fight down at the bar.’’ Recalling the night

Morales was robbed and killed, the defendant explained

that each brother had a role to play: he was ‘‘going to

be the lookout man,’’ Bermudez was going to approach

Morales while armed with a handgun, and Santiago was

going to stay inside the getaway car. The defendant

stated that, for approximately fifteen minutes, he and

Bermudez had lain in wait for Morales to arrive home

from working at the bar. When they eventually saw

Morales, they sneaked up behind him, with the defendant staying a few paces back ‘‘to look out in case

something went wrong.’’ After Bermudez called out to

Morales and pointed his gun ‘‘right at [Morales’] chest,’’

the defendant heard two shots and saw Morales fall to

the ground. All of the brothers then fled with the stolen

bank bag to Santiago’s home, where Algarin-Santiago

was told about the shooting. The defendant recalled

being rather surprised that Algarin-Santiago was

unaware of ‘‘what was going on’’ because ‘‘she [was

Santiago’s] ride or die chick.’’9 The defendant added

that, before he left for the night, everyone ‘‘made a pact

we would never tell anyone . . . . We all came up with
an alibi.’’

This evidence was supplemented by the testimony

of Algarin-Santiago. She stated that Morales had once

shot Santiago in the neck, and that Santiago had stalked

Morales during the time that led up to the brothers’

reunion on April 10, 1998. According to Algarin-Santiago, on the night of that reunion, she was abruptly

woken up to find Santiago, Bermudez, and the defendant in her living room. Algarin-Santiago was informed

that Bermudez had just shot Morales, and the defendant

warned ‘‘if you say anything, we’re going to kill you.

I’m going to kill you and kill your mother.’’ Frightened

for her life, Algarin-Santiago then overheard Bermudez

and the defendant discussing the necessity of changing

their clothes, ‘‘because they had . . . gun residue or

whatever it is’’ and ‘‘they wanted to get rid of the evidence.’’ Algarin-Santiago recounted that, while at her

home, Bermudez and the defendant burned their

clothes, cleaned the getaway car, and talked about getting rid of Bermudez’ gun. Algarin-Santiago was with

Santiago when he subsequently disposed of the gun

and, further, was present when the brothers concluded

their night by concocting an alibi.

From the cumulative force of this evidence, the jury

reasonably could have found that the defendant shared

the intent to cause the death of Morales. The origin of

Santiago’s long-standing hatred for Morales was amply

established and, in turn, it was a fair inference that the

brothers were all united in that hatred and sought to

avenge Santiago’s being shot in the neck by Morales.

Some significance could also be attached to the brothers’ banding together on the night of their reunion, once

they had added strength in numbers to settle an old

score. In the eyes of the jury, it was reasonable to find

that it was the conscious object of these brothers to

ambush and kill Morales—with the potential bounty of

a robbery merely being an added ‘‘bonus.’’ Cf. State v.

Bennett, supra, 307 Conn. 773 (‘‘[i]n the present case,

there was no motive to kill independent of the burglary’’); see also State v. Otto, 305 Conn. 51, 67, 43 A.3d

629 (2012)(‘‘intent to kill may be inferred from evidence

that the defendant [had a] motive to kill’’ [internal quotation marks omitted]); State v. Lopez, 280 Conn. 779,

795, 911 A.2d 1099 (2007) (‘‘It is not essential that the

state prove a motive for a crime. . . . But it strengthens

its case when an adequate motive can be shown.’’ [Internal quotation marks omitted.]). Contrary to the defendant’s argument, the present case is, thus, quite unlike

Bennett, wherein a defendant who successfully

appealed his murder as an accessory conviction essentially had no preexisting linkage to a victim—much less

one that was steeped in violence. See State v. Bennett,

supra, 766 (victim apparently never met defendant, and

met perpetrator ‘‘under nonconfrontational circumstances’’ less than one day before murder).
Beyond a shared motive for killing Morales, the jury

further could have determined that the defendant’s conduct before, during, and after the shooting supported

a finding that he possessed the requisite state of mind.

Specifically, the evidence showed that the defendant

and Bermudez lurked near Morales’ house, awaiting an

armed confrontation, for approximately fifteen minutes

before he arrived. The defendant was, by his own admission, serving as a lookout for Bermudez while he shot

and killed Morales. See id., 769 (active participation in

murder ‘‘through acts beneficial to the principal such

as . . . acting as a lookout’’ common in surveyed cases

finding accessorial liability for murder). After fleeing

to Santiago’s home, the defendant threatened to kill

Algarin-Santiago and her mother if she told anyone

about that night’s shooting. Moreover, the defendant

burned the clothing that he wore during the shooting,

cleaned the getaway car, and conversed about the need

to dispose of the murder weapon and create an alibi.

See State v. Sivri, 231 Conn. 115, 130, 646 A.2d 169

(1994) (destruction of murder evidence indicates consciousness of guilt, ‘‘from which a jury may draw an

inference of an intent to kill’’). Collectively, the defendant’s conduct on the night of Morales’ murder thus

did not amount to ‘‘[m]ere presence as an inactive companion [or] passive acquiescence . . . .’’ State v. Bennett, supra, 307 Conn. 770. Instead, it was perfectly

logical for the jury to find that this proactive conduct

on the defendant’s part was ‘‘a pattern of behavior and

attitude toward a victim’’ that demonstrated a shared

intent to cause his death. Id., 766. Accordingly, we conclude that the evidence was sufficient for the jury to

find the defendant guilty of murder as an accessory.

II

We next turn to the defendant’s claim that the trial

court improperly failed to instruct the jury, sua sponte,

on the defense of duress. At the outset, we note that

the defendant concedes that he did not request an

instruction on the defense of duress at any point during

trial.10 Nevertheless, he contends that he was ‘‘entitled’’

to one, relying on State v. Helmedach, 306 Conn. 61,

48 A.3d 664 (2012), and State v. Heinemann, 282 Conn.

281, 920 A.2d 278 (2007), for the proposition that there

is a ‘‘right to a duress instruction wheneverthe evidence

could support a claim of duress when viewed most

favorably to [a] defendant.’’ In response, the state, relying on, inter alia, cases such as State v. Santiago, 305

Conn. 101, 49 A.3d 566 (2012), and State v. Ebron, 292

Conn. 656, 975 A.2d 17 (2009), overruled on other

grounds by State v. Kitchens, 299 Conn. 447, 472–73,

10 A.3d 942 (2011), argues that the defendant’s claim

must fail because ‘‘he did not request a duress instruction, and the trial court was not obligated to provide

one sua sponte.’’ We agree with the state, and conclude

that the trial court did not have an obligation to instruct
the jury, sua sponte, on a defense of duress.

‘‘A challenge to the validity of jury instructions presents a question of law over which [we exercise] plenary

review.’’ (Internal quotation marks omitted.) State v.

Santiago, supra, 305 Conn. 191. ‘‘The right of a defendant charged with a crime to establish a defense is a

fundamental element of due process.’’ State v. Heinemann, supra, 282 Conn. 298. Moreover, ‘‘[i]t is well

established that . . . § 53a-14 provides that duress is

a defense to a crime.’’ (Footnote omitted.) Id.; see also

footnote 5 of this opinion. Duress is not an affirmative

defense. See State v. Rouleau, 204 Conn. 240, 249, 528

A.2d 343 (1987). Thus, if that defense ‘‘is raised at a

trial, the state shall have the burden of disproving [it]

beyond a reasonable doubt.’’ General Statutes § 53a12 (a). ‘‘[T]he assertion and proof of the . . . defense

nevertheless remains the defendant’s responsibility in

the first instance.’’ State v. Ebron, supra, 292 Conn. 695.

It is well settled that ‘‘trial courts do not have a duty

to charge the jury, sua sponte, on defenses, affirmative

or nonaffirmative in nature, that are not requested by

the defendant.’’ (Internal quotation marks omitted.)

State v. Santiago, supra, 285. This principle holds true

even if the evidence in a particular case ‘‘might well have

warranted [a particular] instruction, had the defendant

requested it appropriately.’’11 State v. Ebron, supra, 695;

cf. State v. Preyer, 198 Conn. 190, 196, 502 A.2d 858

(1985) (‘‘[t]here is no basis, in the law of this state, for

the defendant’s broad claim that a trial court has an

independent obligation to instruct the jury on [an] affirmative defense . . . if the evidence at trial would suffice to support such a charge’’).

The defendant’s reliance on State v. Helmedach,

supra, 306 Conn. 61, and State v. Heinemann, supra,

282 Conn. 281, for the proposition that the trial court

was obligated to instruct the jury on the defense of

duress, sua sponte, is misplaced. Those authorities are

readily distinguishable from the present appeal and do

not dictate that he was ‘‘entitled’’ to a sua sponte jury

instruction on the defense of duress. In both of the

underlying cases, the juries did receive instructions on

the defense of duress and, on appeal to this court, the

respective defendants merely challenged a particularized aspect of the instructions. See State v. Helmedach,

supra, 77–79 (arguing that duress defense instructions,

as given, did not adequately address statutory exception

to that defense); State v. Heinemann, supra, 298

(arguing that duress defense instructions, as given, did

not account for ‘‘recognized differences between juveniles and adults’’). Thus, in asserting that he had a

‘‘right’’ or ‘‘entitlement’’ to a sua sponte jury instruction

on the defense of duress, the defendant attaches undue

significance to words that he has taken out of the fuller

context of these cases.

Our well established approach to jury instructions
and defenses respects ‘‘the defendant’s right to control

the conduct of his own defense . . . .’’ (Citation omitted.) State v. Ebron, supra, 292 Conn. 696. Further, it

recognizes ‘‘the responsibility of the parties to help the

court in fashioning an appropriate charge. . . . The

ever increasing refinement of our law justifies the cooperation of counsel in stating requests for jury instructions . . . .’’ (Internal quotation marks omitted.) Id. In

light of our controlling precedent and these important,

practical considerations, we conclude that it would be

inappropriate to place the onus on a trial court to discern, without any request from the parties, the specific

defenses on which a jury should be instructed. Accordingly, we conclude that the trial court did not improperly fail to instruct the jury, sua sponte, on a defense

of duress.

The judgment is affirmed.

In this opinion the other justices concurred.

1 The defendant appeals directly to this court pursuant to General Statutes

§ 51-199 (b) (3).

2 General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental

state required for commission of an offense, who solicits, requests, commands, 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.’’

3 General Statutes § 53a-54a (a) provides in relevant part: ‘‘A person is

guilty of murder when, with intent to cause the death of another person,

he causes the death of such person . . . .’’

4 General Statutes § 53a-54c provides in relevant part: ‘‘A person is guilty

of murder when, acting either alone or with one or more persons, he commits

or attempts to commit robbery . . . and, in the course of and in furtherance

of such crime or of flight therefrom, he, or another participant, if any, causes

the death of a person other than one of the participants . . . .’’

5 General Statutes § 53a-14 provides: ‘‘In any prosecution for an offense,

it shall be a defense that the defendant engaged in the proscribed conduct

because he was coerced by the use or threatened imminent use of physical

force upon him or a third person, which force or threatened force a person

of reasonable firmness in his situation would have been unable to resist.

The defense of duress as defined in this section shall not be available to a

person who intentionally or recklessly places himself in a situation in which

it is probable that he will be subjected to duress.’’

6

Initially, the state also charged the defendant with murder under a Pinkerton theory of conspiratorial liability. See Pinkerton v. United States, 328

U.S. 640, 647–48, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946); see also State v.

Walton, 227 Conn. 32, 40–54, 630 A.2d 990 (1993) (adopting Pinkerton theory

of conspiratorial liability as matter of state law). The state, however, elected

to drop the Pinkerton count prior to trial.

7 The defendant briefly claims that the evidence did not even establish

that the principal, Bermudez, specifically intended to cause the death of

Morales. Instead, the defendant contends the evidence showed that ‘‘Bermudez shot Morales because Morales was apparently reaching for a weapon’’

while being robbed. Thus, the defendant argues, the murder of Morales was

not the conscious object of any of the brothers; rather, it ‘‘was a response

to . . . Morales’ apparent decision to resist, rather than give his bank bag

to an armed robber . . . .’’

Although this argument is problematic in multiple respects, we need only

note that it fails to recognize that the jury was free to give no weight to the

limited trial evidence that could support the defendant’s version of events.

See, e.g., State v. Jackson, 257 Conn. 198, 209, 777 A.2d 591 (2001)

(‘‘[a]lthough some evidence may be inconsistent with the state’s theory of

the case, the jury is not bound to credit only that evidence to the exclusion

of evidence consistent with the state’s theory’’ [internal quotation marks

omitted]). One such piece of evidence was a portion of the defendant’s own

statement to the police, and another was Algarin-Santiago’s testimony that

Bermudez said he shot Morales during the robbery because he ‘‘thought’’
Morales had a gun. Aside from these self-serving statements from the defendant and Bermudez, we have not been made aware of any evidence presented

at trial that could bolster the defendant’s assertion that Morales was only

shot after he reached for a weapon. The jury was permitted to and, apparently

did, discredit the two specific statements in question. Cf. State v. Brown,

299 Conn. 640, 648, 11 A.3d 663 (2011) (‘‘[t]he trier of fact may credit

part of a witness’ testimony and reject other parts’’ [internal quotation

marks omitted]).

8 The state first argues that we should not reach the merits of the defendant’s sufficiency claim because he challenges only his conviction of murder

as an accessory, and not his conviction of felony murder. The state observes

that, underConnecticut law, those convictions were for‘‘two different means

of committing the same crime,’’ namely, murder; see, e.g., State v. John,

210 Conn. 652, 696, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84,

107 L. Ed. 2d 50 (1989); and, further, that the trial court merged the convictions and designated felony murder as the controlling conviction. Relying

on several Appellate Court decisions; State v. Brown, 131 Conn. App. 275,

288, 26 A.3d 674 (2011), aff’d, 309 Conn. 469, 72 A.3d 48 (2013); State v.

Longo, 106 Conn. App. 701, 705–706, 943 A.2d 488 (2008); State v. Hood,

106 Conn. App. 189, 198–99, 941 A.2d 955, cert. denied, 286 Conn. 921, 949

A.2d 481 (2008); and quoting State v. Beebe, 131 Conn. App. 485, 497, 27

A.3d 26 (2011), cert. denied, 303 Conn. 921, 34 A.3d 397 (2012), the state

asserts that ‘‘the effect of the trial court’s merging of two convictions, the

charges for which set forth alternative ways to commit the same crime, is

to forbear the defendant from challenging on appeal the evidentiary sufficiency of the merged offense.’’

In response, the defendant argues that this court has addressed the merits

of sufficiency claims in murder cases with nearly identical postures. See

State v. Bennett, supra, 307 Conn. 777 n.10 (defendant challenged only

merged murder as accessory conviction, not controlling felony murder conviction). We agree with the defendant, and see no persuasive reason for

departing from our approach in the present appeal. All of the Appellate

Court decisions relied on by the state trace their origins to State v. Pulaski,

71 Conn. App. 497, 505–506, 802 A.2d 233 (2002), wherein a defendant’s

claim that there was insufficient evidence to support his conviction of

operating a motor vehicle while having an elevated blood alcohol content

was avoided in one conclusory sentence that was not supported by case

law. This line of precedent does not convince us that the defendant should

be foreclosed from raising a sufficiency claim with respect to his murder

as an accessory conviction which, despite being merged with his felony

murder conviction, still appears on his publicly accessible criminal record

as a separate conviction.

We do note that in State v. Miranda, 317 Conn. 741, 742–43, A.3d

(2015), we recently concluded that vacatur—not merger—is the appropriate

remedy when a defendant is unlawfully convicted of a cumulative homicide

offense arising from the killing of a single victim. Because the defendant

has not raised a challenge in this appeal to the form of the judgment,

however, we do not disturb it.

9 We note that the fact finder was free to decide whether this statement

was inconsistent with the defendant’s characterization of the plot against

Morales as one that developed on a whim during the night of April 10,

1998—after the brothers were already out on the town together.

10 Moreover, the defendant concedes that his claim of instructional error

was not preserved at trial. He argues, however, that we should review his

unpreserved claim pursuant to State v. Golding, 213 Conn. 233, 239–40, 567

A.2d 823 (1989), because he did not waive it at trial under State v. Kitchens,

299Conn. 447, 482–83, 10A.3d 942 (2011). We need not address the intricacies

of this argument, though, because even if we assume, without deciding, that

the defendant’s claim was not waived under Kitchens, he nevertheless was

not entitled to a sua sponte jury instruction on the defense of duress.

11 We note that the defendant argues on appeal that the record contains

evidence that could support a defense of duress. As explained by the text

that accompanies this footnote, however, it is not presently necessary for

this court to reach any substantive conclusions about whether the record

could adequately support a defense of duress.