State v. Bonilla ( 2015 )

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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 appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Maureen Platt, state’s attor-
ney, 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 53a-
54a (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 sur-
prise him, because Bermudez always carried a gun.
Eventually, Santiago suggested that the brothers
should rob Freddy Morales, the owner of a bar in Water-
bury. 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
off running 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 get-
away 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 Algarin-
Santiago were estranged, and the latter gave informa-
tion 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 sub-
stitute 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 53a-
54a (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 spe-
cific 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
of the 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 reason-
ably drawn therefrom, the trier of fact reasonably could
have concluded that the cumulative force of the evi-
dence 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 conclu-
sions need not be [proven] beyond a reasonable doubt.
. . . If it is reasonable and logical for the jury to con-
clude 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 multi-
tude 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 reason-
able and logical.’’ (Internal quotation marks omitted.)
State v. Crespo, 317 Conn. 1, 16–17, A.3d (2015).
The defendant challenges the sufficiency of the evi-
dence 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 perpe-
trator’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 Stat-
utes § 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 practi-
cally 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 men-
tal 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 ‘‘dur-
ing 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 defen-
dant 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-Santi-
ago, on the night of that reunion, she was abruptly
woken up to find Santiago, Bermudez, and the defen-
dant 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 evi-
dence.’’ Algarin-Santiago recounted that, while at her
home, Bermudez and the defendant burned their
clothes, cleaned the getaway car, and talked about get-
ting 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 broth-
ers’ 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 bur-
glary’’); 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 quota-
tion 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.’’ [Inter-
nal quotation marks omitted.]). Contrary to the defen-
dant’s argument, the present case is, thus, quite unlike
Bennett, wherein a defendant who successfully
appealed his murder as an accessory conviction essen-
tially 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 circum-
stances’’ less than one day before murder).
Beyond a shared motive for killing Morales, the jury
further could have determined that the defendant’s con-
duct 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 admis-
sion, 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 con-
sciousness of guilt, ‘‘from which a jury may draw an
inference of an intent to kill’’). Collectively, the defen-
dant’s conduct on the night of Morales’ murder thus
did not amount to ‘‘[m]ere presence as an inactive com-
panion [or] passive acquiescence . . . .’’ State v. Ben-
nett, 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 con-
clude 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 whenever the evidence
could support a claim of duress when viewed most
favorably to [a] defendant.’’ In response, the state, rely-
ing 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 instruc-
tion, 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 pre-
sents 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 defen-
dant charged with a crime to establish a defense is a
fundamental element of due process.’’ State v. Heine-
mann, 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 § 53a-
12 (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] affir-
mative defense . . . if the evidence at trial would suf-
fice 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 particular-
ized 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 juve-
niles 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 omit-
ted.) 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 coop-
eration of counsel in stating requests for jury instruc-
tions . . . .’’ (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 dis-
cern, without any request from the parties, the specific
defenses on which a jury should be instructed. Accord-
ingly, we conclude that the trial court did not improp-
erly 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, com-
mands, 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 Pin-
kerton 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 ‘‘Bermu-
dez 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 defen-
dant 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 defen-
dant’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, under Connecticut 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 convic-
tions 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 suffi-
ciency 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 con-
viction). 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,
299 Conn. 447, 482–83, 10 A.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.