State v. Moon ( 2019 )

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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 liabil-
ity, 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 affirma-
tive 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 affirma-
tive defense was analogous to providing the jurors with interrogatories,
which was not generally recognized as a part of Connecticut’s crimi-
nal 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 con-
spiracy 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 appel-
lant (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 viola-
tion of General Statutes § 53a-134 (a) (2), and conspir-
acy 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 improp-
erly (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 fianceé
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 neigh-
borhood 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 con-
nected 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 T-
Mobile 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 Allen-
dale 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. Heg-
wood informed the police that on the night of the shoot-
ing, she witnessed Mathis and the defendant walk
‘‘down Catherine Street toward Hillside [Avenue]’’
together and that when the defendant returned approxi-
mately five minutes later he stated ‘‘[Mathis] just
shot somebody.’’
The defendant also provided the police with a state-
ment 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 defen-
dant’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 defen-
dant was texting the victim on Mathis’ phone. Thomp-
son 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 infor-
mation 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, High-
tower informed Reeder that the defendant had con-
fessed 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 nec-
essary.
I
The defendant first claims that ‘‘[t]he trial court com-
mitted 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 isola-
tion . . . 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 stand-
point of its effect on the [jurors] in guiding them to the
proper verdict . . . and not critically dissected in a
microscopic search for possible error. . . . Accord-
ingly, [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 instruc-
tions, the judicial authority, after providing notice to
the parties and an opportunity for suggestions by coun-
sel, shall recall the jury to the courtroom and give addi-
tional 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 rob-
bery 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 § 53a-
134 (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 lar-
ceny; (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 Physi-
cal 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 follow-
ing 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 dis-
cussed 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 con-
cept 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, add-
ing 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 deter-
mine whether such physical force was used or threat-
ened 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 intro-
duced 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 intro-
duce 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 princi-
pals and accessories, stating: ‘‘[O]ur robbery statute,
§ 53a-134, includes explicit accessory language within
the text of the statute. . . . Because the robbery stat-
ute 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 stat-
ute ‘‘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 distin-
guishable, other cases from our appellate courts recog-
nize that § 53a-134 applies to both principals and accom-
plices. 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 con-
cert 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,’’ tai-
lored 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 argu-
ment 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 distin-
guishable 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 supplemen-
tal instruction in the present case was a proper state-
ment 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 supple-
mental 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 interpre-
tation 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 man-
ner, 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 seek-
ing 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 mean-
ing 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 unani-
mous 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 fel-
ony 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 miti-
gate the degree of or eliminate[s] criminality or punish-
ment. . . .
‘‘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 instru-
ment. . . .
‘‘The third element is that the defendant had no rea-
sonable grounds to believe that any other participant
was armed with such a weapon or instrument. A reason-
able 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 unanim-
ity. 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 dis-
tress. 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 rec-
ognized as a part of Connecticut’s criminal procedure.
See Practice Book § 42-29 (‘‘[t]he verdict shall be gen-
eral 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 sub-
mit to jury interrogatory on affirmative defense), cert.
denied, 257 Conn. 911, 782 A.2d 134 (2001). In the pres-
ent 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 omit-
ted.) 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 princi-
ples relevant to this claim. ‘‘Relevant evidence is evi-
dence 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 evi-
dence need not exclude all other possibilities; it is suffi-
cient 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 sup-
port 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 evi-
dence 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 constitu-
tional in nature, the defendant bears the burden of dem-
onstrating that the error was harmful. . . . [A] noncon-
stitutional 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-examina-
tion 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 quota-
tion 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 intro-
duce 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 cas-
ings 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 cas-
ings in the defendant’s home would be relative to the
issue of whether or not the defendant may have pos-
sessed 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 defen-
dant] 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 exe-
cuted 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 intro-
duced 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 arti-
cles found in the possession of an accused person sub-
sequent 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 sanc-
tion the admission of evidence that the defendant pos-
sessed even instruments or articles adapted to the com-
mission of other crimes. . . . The reason is analogous
to that applicable to evidence of other crimes commit-
ted 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 auto-
matic 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 deter-
mined that there was no evidence connecting the exhib-
its 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 com-
mitted 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 shoot-
ing 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. Commis-
sioner of Correction, 104 Conn. App. 210, 217–18, 931
A.2d 967 (silencer found in defendant’s home was rele-
vant 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 commit-
ted 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 par-
ticipant 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 instruc-
tions, 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 coun-
sel 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 instruc-
tion on conspiracy to commit robbery in the first degree
provided in relevant part: ‘‘The statute defining conspir-
acy reads in pertinent part as follows: A person is guilty
of conspiracy when, with intent that conduct constitut-
ing 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 agree-
ment 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 coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly 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. More-
over, defense counsel failed to object after the court
instructed the jury on conspiracy. Thus, defense coun-
sel 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 revers-
ibility, not reviewability. See State v. Jamison, 320
Conn. 589, 595–97, 134 A.3d 560 (2016). ‘‘It is well estab-
lished that the plain error doctrine, codified at Practice
Book § 60-5, is an extraordinary remedy used by appel-
late 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 extraordi-
nary 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 spar-
ingly. . . . Implicit in this very demanding standard is
the notion . . . that invocation of the plain error doc-
trine 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 deter-
mination 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 appro-
priate. 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 demon-
strates 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; empha-
sis 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 com-
mit 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 con-
spiracy 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 commit-
ted 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 threat-
ened use of what the defendant’s coconspirator repre-
sented 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 con-
spiracy to commit robbery in the first degree is the
intent to agree to commit the underlying crime of rob-
bery in the first degree. Moreover, the court’s instruc-
tions on robbery in the first degree, which it incorpo-
rated 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 instruc-
tion on robbery in the first degree provided: ‘‘The sec-
ond 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).