State v. Hall-Davis , 177 Conn. App. 211 ( 2017 )

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STATE OF CONNECTICUT v. MATTHEW
ALLEN HALL-DAVIS
(AC 39619)
Sheldon, Prescott and Bishop, Js.
Syllabus
Convicted of the crimes of murder, conspiracy to commit murder and crimi-
nal possession of a firearm in connection with the shooting death of the
victim, the defendant appealed. The victim was the pregnant girlfriend
of the defendant’s friend, B, who told the defendant that he wanted him
to kill the victim. The defendant claimed that, after he told B several
times that he could not go through with the plan, B was angry and
threatened him with a gun. Thereafter, the defendant allegedly changed
the plan and decided to shoot B instead of the victim, but when he shot
into a vehicle in which the victim and B were sitting, the bullet struck
and killed the victim. On appeal, the defendant claimed, inter alia, that
the trial court improperly failed to instruct the jury on defense of others,
contending that he was entitled to such an instruction because the
evidence demonstrated that he was trying to protect the victim from
B. Held:
1. The trial court properly declined to instruct the jury on the defendant’s
theory of defense of others: when viewed in the light most favorable
to the defendant, the evidence, including that B expressed his desire to
have the victim killed, solicited the defendant to kill the victim, was
angry that the defendant was hesitant to do so, threatened to kill the
defendant and the victim if the defendant did not kill the victim, and
may have had his own gun while he was parked in the car with the
victim, may have been sufficient to show that the defendant subjectively
believed that the victim was at imminent risk of having great bodily
harm inflicted on her by B, but was insufficient to satisfy the defendant’s
slight burden of demonstrating that it would have been objectively rea-
sonable for him to believe that, at the time he fired the gun, the victim
was at imminent risk of having such harm inflicted on her by B, as the
evidence demonstrated that the defendant engaged in a preemptive
strike against B, which is not justified under a defense of others theory;
moreover, the evidence was insufficient to establish that B fired a gun
from within the car and thereby subjected the victim to imminent danger
of great bodily harm, and, even if B did have a gun, there was no evidence
to suggest that he was using or about to use deadly physical force or
about to inflict great bodily harm on the victim.
2. The defendant could not prevail on his unpreserved claim that the trial
court improperly restricted defense counsel from arguing defense of
others and renunciation of criminal purpose during closing argument,
and thereby violated the defendant’s constitutional right to the effective
assistance of counsel: although the record was adequate for review
and the claim was of constitutional magnitude, the defendant failed to
demonstrate that the alleged constitutional violation existed and
deprived him of a fair trial, as defense counsel, who was precluded from
discussing her legal theories of the case, was not precluded from arguing
facts elicited at trial and made arguments that supported the defendant’s
theory of defense of others and highlighted the defendant’s renunciation
without specifically mentioning that word; moreover, the defendant was
not entitled to relief under the plain error doctrine, he having failed to
show that the court’s restriction on defense counsel’s closing argument
was so obviously erroneous that it affected the fairness or integrity of
or public confidence in the judicial proceedings.
3. The defendant’s unpreserved claim that the trial court gave the jury a
faulty and misleading instruction on conspiracy was unavailing, the
defendant having waived his right to challenge that instruction on appeal
because he had a meaningful opportunity to review it but failed to object.
Argued April 27—officially released October 17, 2017
Procedural History
Substitute information charging the defendant with
the crimes of murder, conspiracy to commit murder
and criminal possession of a firearm, brought to the
Superior Court in the judicial district of Hartford and
tried to the jury before Bentivegna, J.; verdict and judg-
ment of guilty, from which the defendant appealed.
Affirmed.
Pamela S. Nagy, assistant public defender, for the
appellant (defendant).
Nancy L. Chupak, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Donna Mambrino, senior assistant state’s
attorney, for the appellee (state).
Opinion
BISHOP, J. The defendant, Matthew Allen Hall-Davis,
appeals from the judgment of conviction, rendered after
a jury trial, of murder in violation of General Statutes
§ 53a-54a (a), conspiracy to commit murder in violation
of General Statutes §§ 53a-48 (a) and 53a-54a (a), and
criminal possession of a firearm in violation of General
Statutes § 53a-217 (a) (1). On appeal, he argues that the
trial court (1) erred by refusing to give the jury an
instruction on defense of others, (2) improperly
restricted his closing argument, and (3) gave the jury
a faulty and misleading instruction on conspiracy. We
affirm the judgment of the trial court.1
The jury reasonably could have found the following
facts. The charges against the defendant stemmed from
a shooting that occurred at approximately 1 a.m. on
April 29, 2013, on Magnolia Street in Hartford in which
the victim, Shamari Jenkins, was killed. The defendant
and the victim’s boyfriend,2 Carlton Bryan, were ‘‘[b]est
friends’’ and had known each other for about ten years.
The defendant had been living with Bryan in April, 2013.
The victim was nineteen weeks pregnant with Bryan’s
baby at the time of her death. Bryan then also had
another girlfriend, who was described as his ‘‘preferred
girlfriend,’’ with whom he had a child. In January, 2013,
Bryan asked the victim to have an abortion, to which she
initially agreed. She later changed her mind, however,
which upset Bryan because her pregnancy was interfer-
ing with his relationship with his other girlfriend. At
the end of March, 2013, or in early April, 2013, Bryan
mentioned to the defendant that he ‘‘wanted to do some-
thing about’’ the victim, but the defendant thought that
Bryan was ‘‘just acting stupid.’’
On the morning of April 28, 2013,3 the defendant and
Bryan went to the victim’s house, where she made
breakfast and they stayed for a barbeque. The defendant
and Bryan had been drinking alcohol all morning, and
they continued to do so at the barbeque. At some point
during the day, the defendant heard Bryan and the vic-
tim arguing. Bryan was acting ‘‘over the top’’ and ‘‘bellig-
erent.’’ The defendant and Bryan left and went to
Bryan’s house where they continued to drink alcohol.
The victim later came to Bryan’s house, and she and
Bryan left in her car and parked outside of 149–151
Magnolia Street, near the intersection with Mather
Street. The defendant also left the house and drove
Bryan’s car to Magnolia Street, where his cousin and
brother lived, and happened upon Bryan and the victim.
Here, the defendant pulled in front of the victim’s car,
and Bryan got in.
While the defendant and Bryan were sitting in Bryan’s
car, Bryan told the defendant that he had ‘‘had enough
of [the victim].’’ Bryan looked at the defendant with a
‘‘dead stare’’ and pulled out a .44 caliber revolver. He
told the defendant that the victim ‘‘[had to] go before
a certain month’’ and asked the defendant to ‘‘do this
for’’ him. Bryan gave the defendant a ski mask, gloves,
and the gun, and told him to park the car on Enfield
Street, one block from Magnolia Street, put on the mask
and gloves, and come through ‘‘the cut,’’ a pedestrian
passageway between Enfield Street and Magnolia
Street, and ‘‘empty the revolver’’ in the driver’s side
door of the victim’s car.
The defendant drove to Enfield Street, where he
parked the car and ‘‘sat there for a minute’’ thinking of
‘‘ways . . . [to] brush [Bryan] off or get out of it.’’
‘‘[A]fter a while,’’ he got out of the car and sat by a tree
near the cut for about five minutes. Then he sat under
a window thinking about ways to get out of killing the
victim. He left the gun, mask, and gloves by the tree,
and drove Bryan’s car back to Magnolia Street, where
he told Bryan that he saw someone outside and could
not go through with the plan. After Bryan determined
that there was no one else in the vicinity, the defendant
drove back to Enfield Street and sat in the car, after
which he returned to the tree to retrieve the gun, mask,
and gloves, and ‘‘just sat there’’ until he decided to leave
it all there again, got back into the car and drove back
to Magnolia Street for a second time. The defendant
told Bryan that he could not go through with the plan,
but Bryan was ‘‘bugging’’ and ‘‘dead serious at that
point.’’
The defendant then drove back to Enfield Street
where he once again picked up the gun, mask, and
gloves, but still could not go through with the plan. He
drove back to Magnolia Street for a third time, where
Bryan was ‘‘furious’’ with him. He and Bryan were in
the car for roughly a minute and a half when Bryan
pulled out of his pocket a nine millimeter gun and told
the defendant, ‘‘[i]t’s you or her,’’ and then got out of
the car and returned to the victim’s car. The victim
remained in her car on Magnolia Street during these
encounters.
The defendant sat in Bryan’s car ‘‘for a minute’’ on
Magnolia Street and then decided that he would change
the plan and shoot Bryan instead of the victim. He
claimed that he then drove back to Enfield Street and
‘‘sat there again for a little bit’’ before returning to the
tree to retrieve the gun, mask, and gloves. He then
decided to change the plan further and, instead of going
to Magnolia Street through the cut, he would go around
the buildings and approach the victim’s car from behind,
thinking that Bryan would not expect that. The defen-
dant stood behind a car that was parked on Magnolia
Street and was ‘‘trying to get up the nerve’’ to shoot
Bryan, and then ‘‘jumped up and . . . started . . . to
jog around the car’’ when he heard Bryan yell to the
victim, ‘‘[p]ull off. Pull off. Pull off.’’ At the same time
that Bryan leaned over to grab the steering wheel, the
defendant shot the gun into the passenger side of the
back window as the car was pulling away from the
curb. The bullet went through the passenger side of the
rear window of the car, through the right side of the
driver’s seat, into the back of the victim’s right shoulder
and lodged in her heart. As this occurred, the car accel-
erated through the intersection of Magnolia Street and
Mather Street, crashing into stairs in front of 137 Magno-
lia Street. The defendant fled back to Enfield Street and
drove off in Bryan’s car. Emergency services personnel
arrived, and the victim was taken to a hospital where
she was pronounced dead.
Bryan initially told Hartford police on the scene that
an unidentified person had shot into the car as the
victim was driving away. Later at the hospital, Bryan
told Hartford police Detective Reginald Early that an
unidentified person had come up to the car and
attempted to rob them, and shot once into the car while
the victim was trying to drive away. He later changed
his story again and identified the person who attempted
to rob them as a man with a ‘‘street name’’ of ‘‘Low,’’
someone he knew from prison. Early thereafter investi-
gated ‘‘Low’’ and determined that he had an alibi for
the time of the shooting.
On April 29, 2013, the defendant went to the Hartford
police station to speak with Early about the victim’s
death because Bryan had told the defendant that Early
wanted to speak with him, which was untrue. The defen-
dant told Early that Bryan had relayed to him that the
victim was shot during an attempted robbery, but that
Bryan could not identify the shooter. The defendant
was not a suspect at that point.
On May 23, 2013, the defendant was arrested in con-
nection with a robbery that took place at J B Expo
in Manchester on May 11, 2013, after Early called the
Manchester police and identified the defendant as the
person with a gun in surveillance footage.4 On May 25,
2013, the defendant’s friend, Kingsley Minto, was also
arrested for the robbery and told Manchester police in
confessing to his involvement that the defendant had
hidden the gun used in the robbery in Henry Park in
Vernon, wrapped in a white shopping bag. Minto also
testified that the defendant threw a shell casing out of
the car window on the way from the robbery and said
it was the shell casing from the victim’s shooting. Subse-
quently, Manchester police recovered the gun, a Ruger
.44 caliber revolver, in Henry Park.
On May 29, 2013, Early and another Hartford police
detective interviewed the defendant at the Hartford Cor-
rectional Center, where he confessed to killing the vic-
tim, at Bryan’s request, with the gun that was found in
Henry Park. The defendant told Early that Bryan felt
like the victim was ‘‘ruining his life’’ by having their
baby and had asked the defendant to kill her for him.
The defendant told Early that he could not go through
with the plan and intended to shoot Bryan instead of
the victim. The defendant was charged with the vic-
tim’s murder.
By information dated January 8, 2015, the state
charged the defendant with murder in violation of § 53a-
54a (a),5 conspiracy to commit murder in violation of
§§ 53a-48 (a)6 and 53a-54 (a), and criminal possession
of a firearm in violation of § 53a-217 (a) (1).7 The five
day evidentiary portion of the jury trial, at which the
defendant testified, took place between January 30 and
February 9, 2015. On February 10, 2015, the court, Ben-
tivegna, J., held a charge conference with counsel to
discuss proposed jury instructions. At the conference,
the defendant asked that the jury be instructed on
defense of others and renunciation of criminal purpose,
a request that the court denied.8 On February 11, 2015,
the jury returned a guilty verdict on all three counts.9
The defendant was sentenced on May 1, 2015, to fifty
years incarceration on the charge of murder; twenty
years incarceration on the charge of conspiracy to com-
mit murder, to run consecutively to the first sentence;
and five years incarceration on the charge of criminal
possession of a firearm, to run concurrently with the
first two sentences, for a total effective sentence of
seventy years incarceration. This appeal followed. Addi-
tional facts will be set forth as necessary.
I
The defendant claims first that the court erred in
refusing to give the jury an instruction on defense of
others. Specifically, he asserts that he provided ample
evidence at trial that he was trying to protect the victim
from Bryan, and, therefore, his due process right to
present a defense was violated by the court’s refusal
to instruct the jury on defense of others.10 We are not
persuaded.
The following additional facts are relevant to our
resolution of this claim. The defendant testified that
when Bryan asked him, on April 28, 2013, to kill the
victim, he thought Bryan was ‘‘tripping’’ and that he
was just ‘‘drunk [and] high,’’ but also that Bryan seemed
‘‘clearheaded’’ and was ‘‘describing things like he knew
what he wanted.’’ He testified that Bryan was ‘‘mad’’
and that he had ‘‘never seen that side of’’ Bryan before.
When he told Bryan that he could not go through with
the plan, Bryan was ‘‘bugging’’ and ‘‘dead serious
. . . .’’ The defendant testified that after Bryan took
out the nine millimeter gun and threatened him, ‘‘[a]t
that point, I pretty much knew, either—I’m not going
to say he was going to do something, but something
was going to happen. . . . I pretty much knew he was
set on killing [the victim].’’ He further testified that at
that point he ‘‘just knew . . . he was going to kill me
or [the victim] or, if not, both of us . . . . I knew too
much. . . . I’m not going to say he was going to do it
himself, but he was either going to kill her or he was
going to kill me.’’
The defendant testified that he ‘‘didn’t see any
options’’ because this was ‘‘a duel to the death with a
gun in [his] face’’ and that he ‘‘wasn’t thinking right.’’
He further testified that Bryan ‘‘threatened [his] life,’’
and he felt like he had ‘‘nowhere to go after that’’
because he lived with Bryan and Bryan knew all of his
friends. The defendant said, ‘‘I just—my mind was just:
shoot [Bryan].’’ When asked on direct examination why
he did not go home or go to his girlfriend’s house, the
defendant testified that he ‘‘could’ve probably left,’’ but
then, Bryan ‘‘would’ve been looking for me after that.
. . . I could only take him for what he said; he was
going to kill me.’’ He further testified, ‘‘if not [the victim],
it was going to be me.’’ Additionally, he testified that
in the moment, he ‘‘didn’t want nothing to happen to’’
the victim, but also that he was not trying ‘‘to protect
her a hundred percent’’ because he ‘‘wanted to help
her’’ but also ‘‘wanted to protect [himself].’’
After the victim’s funeral, the defendant asked Minto
if he knew who shot the victim, to which Minto
responded that he thought it was Bryan. The defendant
then confessed to Minto and told him that it was Bryan’s
idea, but that he changed the plan, however, and acci-
dentally shot the victim as he was trying to shoot Bryan.
Minto testified that the defendant did not tell him that
Bryan pulled out a gun, and that, as far as Minto knew,
the defendant was the only person there with a gun
that night. Minto testified further that he knew Bryan
to be ‘‘almost perpetually’’ and ‘‘constantly’’ in posses-
sion of a firearm, but ‘‘[n]ot always.’’
Everett Walker, the defendant’s ‘‘distant cousin,’’ also
testified that he had seen Bryan with the .44 caliber
gun on previous occasions and that Bryan also
‘‘might’ve had something smaller . . . .’’ When police
arrived on the scene on April 29, 2013, Bryan was patted
down and there was no firearm recovered. Additionally,
the defendant’s written statement did not include any
claim that Bryan had a gun that night or that Bryan
threatened to kill him if he did not shoot the victim.
The defendant testified that he did tell the police that
Bryan threatened him with a gun that night.
Walker testified that he saw Bryan on Enfield Street
on the night of April 28, 2013, and that Bryan was ‘‘mad
about [the victim] being pregnant and he didn’t want
it . . . . [H]e [was] talking about [how] he wanted to
kill her . . . .’’ He further testified that Bryan asked
him to tell the police that he saw someone running
away toward Enfield Street after the shooting. Walker
testified that, while he was at his house on Magnolia
Street, he heard ‘‘a few shots.’’ He testified on direct
examination that he heard ‘‘two shots,’’ but testified on
cross-examination that he believed it was one gunshot,
although he was ‘‘not really sure,’’ but thinks it was one
shot ‘‘because [he] only heard that one distinct sound,
but like a deep boom’’ and that’s ‘‘all [he] heard.’’ He
said that after he heard the shot or shots, he got low
to the ground and then looked out of the window and
saw Bryan steering the car, crash into steps down the
street, and jump out. He did not see anyone running
away from the scene and never told the police that
he did.
In addition to Walker’s testimony that he told the
police that he heard two gunshots, the state presented
evidence from Hartford police Detective Candace Hen-
drix, who testified about a ‘‘defect, some type of dam-
age,’’ on the passenger side of the victim’s car. She
testified that there was a hole in the A-pillar of the
passenger side, which is the part of the car between
the window and the windshield. Hendrix labeled the
defect ‘‘BH-2,’’ or ‘‘bullet hole 2,’’ though she testified
that she did not, in fact, know whether it was a bullet
hole. She testified that there were no plastic fragments
below the defect, and that she took off the dashboard
but did not find a bullet or any fragments inside that
would have indicated that it was caused by a bullet.
She testified further that even if the defect was created
by a bullet, it could not have been created by the fatal
bullet that was fired by the defendant, and she could
not say either when or how the defect was made.
At the charge conference, the defendant requested
that the jury be instructed on defense of others. In
support of this argument, defense counsel highlighted
the following portions of the defendant’s testimony:
Bryan was ‘‘drunk, belligerent and over the top’’ on
April 28, 2013, and had gotten into an argument with
the victim earlier in the day; Bryan was in possession
of a second, smaller gun other than the .44 caliber that
he had given to the defendant; Bryan told the defendant
that the victim was ruining his life; Bryan was acting
that day in a manner that the defendant had never seen
before; and Bryan was ‘‘bugging out and furious’’ when
the defendant told him that he could not go through
with killing the victim, pulling out the smaller gun and
saying ‘‘it’s either you or it’s her . . . .’’ Defense coun-
sel further highlighted, as support for a defense of oth-
ers instruction, Minto’s testimony that Bryan previously
had discussed wanting to kill the victim and that when
Minto heard that the victim was shot, he assumed that
Bryan had shot her. Defense counsel also highlighted
Walker’s testimony that Bryan asked him to be a lookout
and to tell the police that he saw someone running
away from the car after he heard gunshots, and Minto’s
testimony that he had seen Bryan with a small gun on
previous occasions. Defense counsel argued that on the
basis of the testimony of the defendant, Minto, and
Walker, there was sufficient evidence that ‘‘something
was going to happen that night’’ and that it would hap-
pen imminently, which would ‘‘raise reasonable doubt
in the mind of a rational juror . . . .’’ The state opposed
the defendant’s request and argued that the evidence
was ‘‘lacking in objective reasonability of imminent dan-
ger . . . .’’
The court denied the defendant’s request for three
reasons. First, the court opined that ‘‘public policy prin-
ciples weigh against giving [a defense of others] instruc-
tion in this particular case.’’ Second, the court opined
that there was ‘‘a lack of evidence to support the defen-
dant’s contention that at the time he fired the firearm,
it was objectively reasonable for him to believe that it
was necessary to do so in order to defend [the victim].’’
The court further highlighted the fact that the evidence
reflected that Bryan’s plan ‘‘was to make it appear that
someone else had murdered [the victim], not that he
had murdered’’ her, that there was no evidence of a
nine millimeter handgun that Bryan allegedly had that
night, and that ‘‘[t]he most that can be inferred is that
[the victim] and the defendant might have been endan-
gered at some point in the future . . . .’’11 The court
opined that the only way the jury reasonably could find
that Bryan was using or was about to use deadly force
against the victim was by ‘‘resorting to impermissible
speculation.’’ Last, the court opined that this was a
‘‘classic example of preemptive strike,’’ which defense
of others does not encompass. In so finding, the court
highlighted the lack of evidence that the victim was in
imminent danger of deadly physical force by Bryan, the
fact that the defendant went back and forth between
Enfield Street and Magnolia Street multiple times before
shooting, and the fact that the defendant approached
the vehicle from behind. On the basis of those three
reasons, the court denied the defendant’s request to
instruct the jury on defense of others.
We begin our analysis by setting forth our standard
of review. ‘‘[T]he fair opportunity to establish a defense
is a fundamental element of due process of law . . . .
This fundamental constitutional right includes proper
jury instructions on the elements of [defense of others]
so that the jury may ascertain whether the state has
met its burden of proving beyond a reasonable doubt
that the [crime] was not justified. . . . Thus, [i]f the
defendant asserts [defense of others] and the evidence
indicates the availability of that defense, such a charge
is obligatory and the defendant is entitled, as a matter
of law, to [an] . . . instruction [on defense of others].’’
(Citations omitted; internal quotation marks omitted.)
State v. Bryan, 307 Conn. 823, 832, 60 A.3d 246 (2013).
‘‘[I]n reviewing the trial court’s rejection of the defen-
dant’s request for a jury charge on [defense of others],
we . . . adopt the version of the facts most favorable
to the defendant which the evidence would reasonably
support.’’ (Internal quotation marks omitted.) Id., 836;
see also State v. Lewis, 220 Conn. 602, 619, 600 A.2d
1330 (1991).
We next look at the relevant legal principles sur-
rounding defense of others. General Statutes § 53a-19
(a) codifies defense of others and provides in relevant
part: ‘‘[A] person is justified in using reasonable physical
force upon another person to defend . . . a third per-
son from what he reasonably believes to be the use or
imminent use of physical force, and he may use such
degree of force which he reasonably believes to be
necessary for such purpose; except that deadly physical
force may not be used unless the actor reasonably
believes that such other person is (1) using or about
to use deadly physical force, or (2) inflicting or about
to inflict great bodily harm.’’
‘‘The defense of others, like self-defense, is a justifica-
tion defense. These defenses operate to exempt from
punishment otherwise criminal conduct when the harm
from such conduct is deemed to be outweighed by the
need to avoid an even greater harm or to further a
greater societal interest. . . . Thus, conduct that is
found to be justified is, under the circumstances, not
criminal. . . . All justification defenses share a similar
internal structure: special triggering circumstances per-
mit a necessary and proportional response. . . . One
common formulation of the necessity requirement gives
the actor the right to act when such force is necessary
to defend himself [or a third person]. But this formula-
tion fails to highlight the two essential parts of the
necessity requirement . . . force should be permitted
only (1) when necessary and (2) to the extent necessary.
The actor should not be permitted to use force when
such force would be equally as effective at a later time
and the actor suffers no harm or risk by waiting. . . .
Accordingly, neither self-defense, nor the defense of
others, encompass[es] a preemptive strike.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Bryan, supra, 307 Conn. 832–33.
In asserting a claim of defense of others, the defen-
dant has only the burden of production, meaning that
‘‘he merely is required to introduce sufficient evidence
to warrant presenting his claim of [defense of others]
to the jury.’’ (Internal quotation marks omitted.) Id.,
834. ‘‘[T]he evidence adduced by the defendant must be
sufficient [if credited by the jury] to raise a reasonable
doubt in the mind of a rational juror as to whether
the defendant acted in [defense of another].’’ (Internal
quotation marks omitted.) Id. The burden of production
on the defendant is ‘‘slight’’ and ‘‘may be satisfied if
there is any foundation in the evidence [for the defen-
dant’s claim], no matter how weak or incredible’’; (inter-
nal quotation marks omitted); and in producing
evidence, the defendant ‘‘may rely on evidence adduced
either by himself or by the state to meet this evidentiary
threshold.’’ (Emphasis omitted; internal quotation
marks omitted.) Id. ‘‘[O]nce a defendant identifies suffi-
cient evidence in the record to support a requested jury
charge, he is entitled thereto as a matter of law, even if
his own testimony, or another of his theories of defense,
flatly contradicts the cited evidence.’’ Id., 834–35.
Although the defendant’s burden may be slight,
‘‘[b]efore the jury is given an instruction on [defense
of others] . . . there must be some evidentiary founda-
tion for it. A jury instruction on [defense of others] is
not available to a defendant merely for the asking. . . .
However low the evidentiary standard may be, it is
nonetheless a threshold the defendant must cross.’’
(Internal quotation marks omitted.) State v. Montanez,
277 Conn. 735, 750, 894 A.2d 928 (2006). ‘‘Although it
is the jury’s right to draw logical deductions and make
reasonable inferences from the facts proven . . . it
may not resort to mere conjecture and speculation.’’
(Internal quotation marks omitted.) State v. Bryan,
supra, 307 Conn. 835; see also State v. Montanez, supra,
750 (‘‘[t]he defendant may not ask the court to boost him
over the sill upon speculation and conjecture’’ [internal
quotation marks omitted]). Additionally, ‘‘in order to
submit a defense of others defense to the jury, a defen-
dant must introduce evidence that the defendant rea-
sonably believed [the attacker’s] unlawful violence to
be imminent or immediate. . . . Under § 53a-19 (a), a
person can, under appropriate circumstances, justifi-
ably exercise repeated deadly force if he reasonably
believes both that [the] attacker is using or about to
use deadly force against [a third person] and that deadly
force is necessary to repel such attack. . . . The Con-
necticut test for the degree of force in . . . [defense
of others] is a subjective-objective one. The jury must
view the situation from the perspective of the defen-
dant. Section 53a-19 (a) requires, however, that the
defendant’s belief ultimately must be found to be rea-
sonable.’’ (Internal quotation marks omitted.) State v.
Bryan, supra, 835–36.
On the basis of our thorough review of the record,
we conclude that the defendant did not cross the low
evidentiary threshold to entitle him to a charge on the
defense of others and, accordingly, we conclude that
the trial court properly refused to instruct the jury on
that theory. Adopting the version of the facts most
favorable to the defendant, the jury could have reason-
ably concluded that Bryan had expressed previously
his desire to have the victim killed, that he solicited
the defendant to kill the victim, that he was angry that
the defendant was hesitant to do so, that he threatened
the defendant and the victim if the defendant did not kill
the victim, and that Bryan had a gun in his possession
on that night. This evidence, if credited, could possibly
be sufficient to show that the defendant subjectively
believed that the victim was at imminent risk of great
bodily harm from Bryan, even though there is evidence
that this belief was unreasonable.
Regardless of whether the defendant had the subjec-
tive belief that the victim was in imminent risk of harm,
the evidence, however, was insufficient to support the
defendant’s contention that his perception of imminent
danger to the victim was objectively reasonable at the
time he fired the gun so as to justify his claimed belief
that it was necessary to do so in order to defend the
victim. In short, the evidence does not support a finding
that the victim was at imminent risk of great bodily
harm from Bryan when she was shot by the defendant.
Rather, the evidence was probative of the fact that,
after much indecision, the defendant engaged in a pre-
emptive strike against Bryan, an act which is not justi-
fied under a defense of others theory. Id., 833.
In support of his claim that his belief of the imminent
risk of grave harm to the victim was reasonable, the
defendant suggests that there was evidence that Bryan
fired a gun from within the victim’s car. As support
for this contention, he highlights the fact that Walker
originally told the police that he heard two gunshots
that night and that there was a defect in the car, which
the police labeled ‘‘bullet hole 2.’’ See footnote 11 of
this opinion. Hendrix testified, however, that she did
not recover a bullet from within the car, there were no
physical indicators that the defect actually was created
by a bullet, and that even if the defect had been created
by a bullet, she could not say when it was made. Thus,
this evidence is wholly insufficient, even when viewed
in the defendant’s favor, to establish that Bryan fired
a gun from within the victim’s car, placing her in immi-
nent danger of great physical harm inflicted by Bryan.
The only way a jury could come to such a conclusion
would be through impermissible conjecture and specu-
lation.
Even if we assume that Bryan did have a second gun
that night, which is supported only by the defendant’s
own testimony, there was no evidence to suggest that
Bryan was ‘‘using or about to use deadly physical force,
or . . . inflicting or about to inflict great bodily harm’’
upon the victim. General Statutes § 53a-19 (a). There
was no evidence that Bryan was pointing the gun at
the victim or even that he had it in his hand at the
time the defendant fired the gun. Further, there was no
evidence that Bryan made any furtive movements to
retrieve a weapon. In fact, the defendant testified that
at the time he fired the gun at the car, Bryan was leaning
over toward the victim, grabbing the steering wheel to
help direct the car. Additionally, Bryan was yelling at the
victim to drive away, which undermines the defendant’s
argument that he believed Bryan was about to inflict
great bodily harm upon her, as she could not have driven
the car away if she was seriously injured.
Additionally, the defendant testified that he went
back and forth between Magnolia Street and Enfield
Street three times before shooting the gun. Even after
Bryan allegedly brandished a nine millimeter gun at the
defendant before retreating back to the victim’s car,
where the victim was sitting, the defendant sat in Bry-
an’s car on Magnolia Street ‘‘for a minute’’ before
returning to Enfield Street, where he ‘‘sat there again
for a little bit,’’ then stood behind a parked car while
‘‘trying to get up the nerve’’ to shoot Bryan. In the
time between the alleged confrontation with the nine
millimeter and the shooting of the victim, the defendant
did not seek assistance for the victim from a third party
or from the police, even though the Hartford police
station was less than five minutes from that location.
The fact that the defendant left the victim alone with
Bryan, when the defendant knew Bryan was armed,
undercuts the notion that one could reasonably believe
that the victim was at imminent risk of great bodily
harm from Bryan.12 In short, the defendant’s actions in
coming and going to and from the scene several times
before the shooting erodes any basis for determining
that a reasonable person, under these circumstances,
could conclude that the victim was in imminent danger
of great bodily harm from Bryan at the moment the
defendant fired into the vehicle.
Viewed in the light most favorable to the defendant,
evidence that Bryan was angry at the time, may have
had a gun, was looking to have the victim killed, and
threatened to kill the defendant and the victim if the
defendant did not kill her, was nevertheless insufficient
to satisfy even the slight burden placed on the defendant
to show that it would have been objectively reasonable
for him to believe that the victim was at imminent risk
of having grave bodily harm inflicted upon her by Bryan.
At most, the jury could have inferred from such evi-
dence that the victim might be endangered at some
point in the future. Thus, no reasonable jury could have
found the defendant’s belief that the victim was at risk
of imminent harm from Bryan at the time the defendant
fired the gun to be objectively reasonable. ‘‘Viewed in
the light most favorable to the defendant, the evidence
was insufficient to raise a reasonable doubt in the mind
of a rational juror as to whether the defendant acted
in [the victim’s] defense.’’ State v. Bryan, supra, 307
Conn. 838–39. Accordingly, the trial court properly
refused to instruct the jury as requested on the defen-
dant’s defense of others theory.
II
The defendant claims next that the trial court improp-
erly restricted defense counsel from arguing defense of
others and renunciation in closing arguments, thereby
violating his right to the effective assistance of counsel
under the sixth amendment to the United States consti-
tution. The defendant concedes that this claim is unpre-
served, but, nevertheless, seeks review pursuant to
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), and the plain error doctrine.
See Practice Book § 60-5.
‘‘[A] defendant can prevail on a claim of constitutional
error not preserved at trial only if all of the following
conditions are met: (1) the record is adequate to review
the alleged claim of error; (2) the claim is of constitu-
tional magnitude alleging the violation of a fundamental
right; (3) the alleged constitutional violation . . .
exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state
has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In
the absence of any one of these conditions, the defen-
dant’s claim will fail. The appellate tribunal is free,
therefore, to respond to the defendant’s claim by focus-
ing on whichever condition is most relevant in the par-
ticular circumstances.’’ (Emphasis in original; footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40.
‘‘The defendant bears the responsibility for providing
a record that is adequate for review of his claim of
constitutional error. . . . The defendant also bears the
responsibility of demonstrating that his claim is indeed
a violation of a fundamental constitutional right. . . .
Finally, if we are persuaded that the merits of the defen-
dant’s claim should be addressed, we will review it
and arrive at a conclusion as to whether the alleged
constitutional violation . . . exists and whether it . . .
deprived the defendant of a fair trial.’’ (Citations omit-
ted.) Id., 240–41.
In the present case, we conclude that the defendant’s
claim meets the first two prongs of the Golding test,
as the record is adequate to review the alleged claim
of error, and the claim is of constitutional magnitude
alleging the violation of a fundamental right. See State
v. Arline, 223 Conn. 52, 63, 612 A.2d 755 (1992) (‘‘The
right to the assistance of counsel ensures an opportu-
nity to participate fully and fairly in the adversary fact-
finding process. . . . The opportunity for the defense
to make a closing argument in a criminal trial has been
held to be a basic element of the adversary process
and, therefore, constitutionally protected under the
sixth and fourteenth amendments.’’ [Citation omitted;
internal quotation marks omitted.]). Accordingly, the
claim is reviewable. We further conclude, however, that
the defendant has failed to demonstrate that the alleged
constitutional violation exists and deprived him of a
fair trial.
The following additional facts are relevant to our
resolution of this claim. During the February 10, 2015
charge conference, the defendant filed a request to
charge, asking that the court give the jury an instruction
on renunciation of criminal purpose as a defense to
conspiracy. The court refused to give such an instruc-
tion, stating ‘‘that there [did] not exist a foundation in
the evidence that the defendant took the requisite steps
prior to the commission of the offense to deprive his
complicity of its effectiveness . . . .’’13 In addition, the
defendant asked the court to instruct the jury on the
defense of others claim. As discussed in part I of this
opinion, the court correctly denied that request. After
the court reviewed the entirety of the jury instructions
with the parties, the state requested that defense coun-
sel be precluded from arguing defense of others or
renunciation in her closing argument. The court agreed,
stating: ‘‘I understand that the defense has objected to
the court’s decisions regarding the request to charge
. . . but during closing argument, the parties should
not make any arguments relating to defense of others
and renunciation. It’s not in the case, at this point.’’
Defense counsel did not object to the court’s ruling.
Although never using the terms ‘‘defense of others’’
or ‘‘renunciation,’’ defense counsel nonetheless argued
facts that related to those two theories in her closing
argument. Defense counsel argued: ‘‘[T]he truth has
been told since the very beginning of this case. It would
have been simpler and cleaner and nicer for [the defen-
dant] if he could’ve said: well, yeah, I saw [Bryan] point-
ing that gun at [the victim]. Or, better: I saw [Bryan]
shoot that gun from inside that car. Or: I heard that
shot.’’ She also mentioned several more times that there
was testimony that two gunshots had been fired that
night. She also argued that ‘‘one of [the defendant’s]
stated objectives was to try to protect [the victim]. . . .
You can only infer that he was really trying to kill
[Bryan] . . . . But we don’t have a freeze-frame video
component in this case where we can just stop the
action and say: yes, [Bryan] has a [nine millimeter gun]
and, yes, he’s pointed it out because . . . he saw [the
defendant] coming up. Or: yes, [Bryan] has a [nine milli-
meter gun]. He realizes [the defendant] isn’t going to
kill [the victim] for him, and so he’s pointing the [nine
millimeter gun] at [the victim]. We don’t have the video
cameras. That, unfortunately, is life.’’ Additionally,
defense counsel commented: ‘‘[I]f [the defendant]
wanted to see [the victim] dead, he didn’t have to do
this routine of coming up from behind these cars. He
could have walked out of that cut . . . and done what
[Bryan] asked him to do, which is unload the [.44 caliber
revolver] in the driver’s side door of the vehicle, into
her. That’s not what happened.’’ Further, she argued
that ‘‘to be a murderer, you would have to know exactly,
exactly what [the defendant’s] intent was and exactly
what [Bryan] was doing at the time.’’
After closing arguments, the state objected to por-
tions of defense counsel’s argument, claiming that she
had violated the court’s order not to discuss defense
of others and renunciation. Defense counsel replied: ‘‘I
was talking about the evidence when I was saying [he
was] there to protect [the victim] or [he was] there to
protect himself. [The court] ruled essentially that . . .
the evidence did not support any of those defenses, so
I didn’t say the defenses. I just said what the evidence
was. . . . I talked about the evidence instead of the
defenses.’’ The court overruled the state’s objection
and stated that it did not think defense counsel had
breached the court’s order.
On appeal, the defendant argues that the court
improperly restricted his closing argument by disal-
lowing defense counsel from arguing defense of others
and renunciation, thereby violating his right to the effec-
tive assistance of counsel under the sixth amendment.
We are not persuaded.
‘‘In general, the scope of final argument lies within
the sound discretion of the court . . . subject to appro-
priate constitutional limitations. . . . It is within the
discretion of the trial court to limit the scope of final
argument to prevent comment on facts that are not
properly in evidence, to prevent the jury from consider-
ing matters in the realm of speculation and to prevent
the jury from being influenced by improper matter that
might prejudice its deliberations. . . . While we are
sensitive to the discretion of the trial court in limiting
argument to the actual issues of the case, tight control
over argument is undesirable when counsel is precluded
from raising a significant issue.’’ (Citations omitted;
internal quotation marks omitted.) State v. Arline,
supra, 223 Conn. 59–60. ‘‘Counsel may comment upon
facts properly in evidence and upon reasonable infer-
ences drawn from them. . . . Counsel may not, how-
ever, comment on or suggest an inference from facts
not in evidence.’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) Id., 58.
In arguing that the court erred in limiting his closing
argument, the defendant relies on our Supreme Court’s
holding in Arline and states that the facts in that case
are ‘‘nearly identical’’ to the facts in the present case.
The defendant’s reliance on Arline, however, is mis-
placed. In Arline, the court precluded defense counsel
from referring during closing argument ‘‘to any charges
against the complainant that had been nolled or dis-
posed of subsequent to the alleged sexual assault or to
any civil claim that the complainant might pursue with
respect to the alleged sexual assault.’’ State v. Arline,
supra, 223 Conn. 57. The defendant in Arline argued
that those facts ‘‘supported an inference that the com-
plainant’s testimony had been motivated by these poten-
tial benefits’’ which he would have used, in closing,
to challenge the complainant’s credibility. Id., 58. Our
Supreme Court found error in that case because the
trial court restricted defense counsel from commenting
on those facts which were properly in evidence. Id.,
63–64.
Here, unlike in Arline, defense counsel was pre-
cluded from discussing her legal theories of the case
that the court had already ruled were unsupported by
the evidence. The court did not preclude defense coun-
sel from arguing facts elicited at trial, but precluded
her from arguing that those facts supported the legal
theory that the defendant shot the victim in trying to
protect her from Bryan, or that the defendant
renounced his participation in the conspiracy. Indeed,
when the state objected to portions of defense counsel’s
closing argument, defense counsel argued, ‘‘I was talk-
ing about the evidence when I was saying [he was]
there to protect [the victim] or [he was] there to protect
himself. [The court] ruled essentially that . . . the evi-
dence did not support any of those defenses, so I didn’t
say the defenses. I just said what the evidence was. . . .
I talked about the evidence instead of the defenses.’’
(Emphasis added.)
It is clear from her statements in closing arguments,
as well as in her argument opposing the state’s objection
to her closing argument, that defense counsel under-
stood the distinction between arguing the facts in evi-
dence and arguing the precluded theories of defense
of others and renunciation. As to the claim of defense
of others, defense counsel argued that the defendant
was trying to protect the victim from Bryan, that there
were two gunshots that night, and that the case would
have been much cleaner if the defendant had testified
that Bryan had a gun and was pointing it at the victim,
which all speaks to his theory of defense of others.
Additionally, defense counsel highlighted the defen-
dant’s renunciation, without specifically saying the
word, when she argued that the defendant could have
done what Bryan asked him to do that night, but did
not. She argued that in order for the defendant to be
a murderer, the jury would need to know his intent and
Bryan’s actions. Implicit in that argument is that the
defendant’s intent was to change the plan and shoot
Bryan, not the victim, which is the crux of the defen-
dant’s renunciation argument. Also implicit in that argu-
ment is the contention that Bryan’s actions placed the
victim in imminent harm that night, and, therefore, that
the defendant was justified in shooting at Bryan to
defend her. Given this, defense counsel understood the
distinction and knew that under the court’s ruling she
could, and indeed did, comment on the facts properly
in evidence, without taking the next step to discuss
defense of others and renunciation, which the court
already had ruled were unsupported by the evidence.
Accordingly, the defendant cannot show that ‘‘the
alleged constitutional violation . . . exists and . . .
deprived the defendant of a fair trial’’; State v. Golding,
supra, 213 Conn. 240; and, thus, this claim fails to satisfy
the third prong of Golding.
The defendant asserts, in the alternative, that his
claim is reviewable under the plain error doctrine. ‘‘This
doctrine, codified at Practice Book § 60-5, is an extraor-
dinary remedy used by appellate courts to rectify errors
committed at trial that, although unpreserved, 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. [T]he plain
error doctrine . . . is not . . . a rule of reviewability.
It is a rule of reversibility. 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 rever-
sal of the trial court’s judgment, for reasons of policy.
. . . In addition, the plain error doctrine is reserved
for truly extraordinary situations [in which] the exis-
tence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial
proceedings. . . . Plain error is a doctrine that should
be invoked sparingly. . . . Implicit in this very
demanding standard is the notion . . . that invocation
of the plain error doctrine is reserved for occasions
requiring the reversal of the judgment under review.
. . . [Thus, a defendant] cannot prevail under [the plain
error doctrine] . . . unless he demonstrates that the
claimed error is both so clear and so harmful that a
failure to reverse the judgment would result in manifest
injustice.’’ (Citations omitted; internal quotation marks
omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d
11 (2009).
Upon review of the entire record, we conclude that
plain error relief is unwarranted. The defendant has
failed to show that the court’s limited restriction on his
closing argument ‘‘was so obviously erroneous that it
affected the fairness or integrity of or public confidence
in the judicial proceedings.’’ State v. Thompson, 71
Conn. App. 8, 14, 799 A.2d 1126 (2002). Further, the
defendant has failed to show that ‘‘this is one of those
extraordinary situations where not granting the
requested relief will result in manifest injustice.’’ Id.
Accordingly, the court did not abuse its discretion in
limiting the defendant’s closing argument.
III
Last, the defendant claims that the court gave the
jury a faulty and misleading instruction on conspiracy,
and seeks to have his conviction of conspiracy to com-
mit murder reversed on that basis. Specifically, the
defendant claims that the court ‘‘failed to instruct that
[the] defendant had to specifically intend to enter into
an agreement to commit murder.’’ The defendant con-
cedes that this claim is unpreserved, but, nevertheless,
seeks review pursuant to State v. Golding, supra, 213
Conn. 239–40. We conclude that the defendant has
waived any challenge to the relevant jury instruction,
pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942
(2011), and, therefore, is not entitled to Golding review.
The following additional facts are relevant to our
resolution of this claim. At the February 10, 2015 charge
conference, the court noted that it had provided defense
counsel and the state with two different drafts of the
proposed jury instructions, one on February 5, 2015,
and the second on February 10, 2015. In both drafts,
the subsection regarding the ‘‘agreement’’ element of
conspiracy to commit murder provided, inter alia: ‘‘The
first element is that there was an agreement between
two or more persons. It is not necessary for the state
to prove that there was a formal or express agreement
between them. It is sufficient to show that the parties
knowingly engaged in a mutual plan to do a criminal
act. . . . [T]he first element that the state must prove
beyond a reasonable doubt is that the defendant entered
into an agreement with at least one other person to
engage in conduct constituting murder.’’ (Emphasis
added.) In addition, in summarizing the elements of
conspiracy to commit murder, the two drafts provided:
‘‘In summary, the state must prove beyond a reasonable
doubt that . . . the defendant specifically intended to
cause the death of another person.’’ (Emphasis added.)
The language used in the drafts came from the model
jury instructions on the Judicial Branch website at the
time of the conference. Neither the defendant nor the
state objected to the use of any of this language.
The state did object to a different portion of the
proposed conspiracy charge, arguing that it was unnec-
essary to include language that the state need not show
that the defendant directly communicated with his
coconspirators, or that they even knew each other’s
names, as this was irrelevant under the facts of the
present case. The defense agreed with the state. After
agreeing to take that language out, the court then stated:
‘‘Okay. All right. So that looks good. All right. Any other
issues with count two language?’’ Neither party indi-
cated that it had any further changes to count two, and
the court moved on to discuss the proposed language
for count three of the information, which charged the
defendant with criminal possession of a firearm.
The following day, February 11, 2015, the court
instructed the jury and used the conspiracy language
that it had provided in the draft instructions, including
the previously mentioned language in the subsection
on agreement, as well as the language in the summary
paragraph. After the court read the entirety of the
instructions to the jury, the defendant renewed his
objections made during the charge conference, none of
which were in regard to the conspiracy count, and he
did not make any additional objections.
On appeal, the defendant argues that the court’s
instruction to the jury on count two, conspiracy to com-
mit murder, was ‘‘faulty and misleading.’’ Specifically,
he argues that the use of the language regarding the
agreement element as well as the language in the sum-
marizing paragraph was in error because the court
failed to instruct the jury that the defendant had to
‘‘specifically intend to enter into an agreement to com-
mit murder.’’ We conclude that the defendant has
waived this claim.
‘‘It is well established in Connecticut that unpre-
served claims of improper jury instructions are review-
able under Golding unless they have been induced or
implicitly waived. . . . The mechanism by which a
right may be waived . . . varies according to the right
at stake. . . . For certain fundamental rights, the
defendant must personally make an informed waiver.
. . . For other rights, however, waiver may be affected
by action of counsel . . . [including] the right of a
defendant to proper jury instructions. . . . Connecti-
cut courts have consistently held that when a party
fails to raise in the trial court the constitutional claim
presented on appeal and affirmatively acquiesces to the
trial court’s order, that party waives any such claim
[under Golding]. . . . [W]hen the trial court provides
counsel with a copy of the proposed jury instructions,
allows a meaningful opportunity for their review, solic-
its comments from counsel regarding changes or modi-
fications and counsel affirmatively accepts the
instructions proposed or given, the defendant may be
deemed to have knowledge of any potential flaws
therein and to have waived implicitly the constitutional
right to challenge the instructions on direct appeal. . . .
[C]ounsel’s discussion of unrelated parts of the jury
charge at an on-the-record charge conference . . .
demonstrate[s] that counsel was sufficiently familiar
with the instructions to identify those portions of the
instructions with which [she] disagreed. [T]o the extent
that [she] selectively discussed certain portions of the
instructions but not others, one may presume that [she]
had knowledge of the portions that [she] did not discuss
and found them to be proper, thus waiving the defen-
dant’s right to challenge them on direct appeal.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Herring, 151 Conn. App. 154, 169–70, 94 A.3d 688
(2014), aff’d, 323 Conn. 526, 147 A.3d 653 (2016), citing
State v. Kitchens, supra, 299 Conn. 447. Our Supreme
Court has stated that it is sufficient to show that defense
counsel had a meaningful opportunity to review the
proposed instructions if she was given the opportunity
to review them overnight. See State v. Webster, 308
Conn. 43, 63, 60 A.3d 259 (2013).
In the present case, defense counsel was provided a
first draft of the instructions on February 5, 2015, four
days prior to the charge conference and, accordingly,
had a meaningful opportunity to review the proposed
jury instructions at issue. Additionally, defense counsel
discussed and objected to other portions of the jury
instructions at the charge conference, and, therefore,
it is presumed that she had knowledge of the language
in question, even though she did not discuss explicitly
that portion of the proposed instructions during the
charge conference. See State v. Herring, supra, 151
Conn. App. 170. We conclude that the defendant had a
meaningful opportunity to review the jury instruction at
issue, failed to object to that instruction, and, therefore,
waived his right to challenge the instruction on appeal.14
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant originally appealed to our Supreme Court pursuant to
General Statutes § 51-199 (b) (3). The appeal subsequently was transferred
to this court pursuant to Practice Book § 65-1.
2
At various times during trial, the victim was referred to as Bryan’s
girlfriend, his ‘‘[p]art-time girlfriend,’’ his ‘‘side girlfriend,’’ and his ‘‘jump-
off,’’ which is a term for a person used for sex.
3
In his testimony, the defendant stated that these events happened during
the morning of April 29, 2013, but it is clear from his testimony that this
was a mistake and that he was actually talking about April 28, 2013.
4
Early testified that he received information about the robbery from Bryan
and the defendant’s cousin, Everett Walker, and then spoke with Manchester
police, but did not testify as to the content of the information he was given.
5
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 or of a third person . . . .’’
6
General Statutes § 53a-48 (a) provides: ‘‘A person is guilty of conspiracy
when, with intent that conduct constituting a crime be performed, he agrees
with one or more persons to engage in or cause the performance of such
conduct, and any one of them commits an overt act in pursuance of such con-
spiracy.’’
7
General Statutes § 53a-217 (a) provides in relevant part: ‘‘A person is
guilty of criminal possession of a firearm . . . (1) when such person pos-
sesses a firearm . . . and . . . has been convicted of a felony committed
prior to, on or after October 1, 2013 . . . .’’
8
The defendant also initially asked that the jury be instructed on self-
defense, but decided not to pursue that request at the charging conference.
9
The court charged the jury on transferred intent. The court stated: ‘‘The
evidence in this case raises the issue of transferred intent. The principle of
transferred intent was created to apply to the situation of an accused who
intended to kill a certain person and by mistake killed another. His intent
is transposed from the person to whom it was directed to the person actually
killed. It is not necessary for a conviction of murder that the state prove
that the defendant intended to kill the person whom he did in fact kill. It
is sufficient if the state proves that, acting with the intent to kill a person,
he in fact killed a person.’’
10
As part of his argument that the court should have given the jury a
defense of others instruction, the defendant claims that the court ‘‘did not
view the evidence in a light most favorable to [the] defendant. Had it done
so, it would have realized there was sufficient evidence to raise a reasonable
doubt that [the] defendant acted in defense of [the victim], and that he
reasonably believed deadly force was necessary to defend [the victim]
against the imminent use of deadly force by [Bryan].’’
Essentially, the defendant argues that because the court did not find in
his favor on this issue, it must have used the incorrect standard. This
argument is unavailing, as there is evidence that the court did, in fact, view
the evidence in the light most favorable to the defendant in denying his
request for the instruction. First, the defendant reminded the court of the
correct standard during argument requesting the instruction. Second, the
court stated that it was relying primarily on three cases in making its decision,
all of which provided the appropriate standard: State v. Bryan, 307 Conn.
823, 836, 60 A.3d 246 (2013); State v. Lewis, 220 Conn. 602, 619, 600 A.2d
1330 (1991); and State v. Singleton, 292 Conn. 734, 746, 974 A.2d 679 (2009).
Third, the court specifically stated that it waited to make its decision until
after the defendant testified and evidence was concluded. Accordingly, there
is no merit to the defendant’s contention that the court applied the
wrong standard.
11
In response, defense counsel argued that there was objective evidence
that Bryan pulled out a firearm because there was the hole in the A-pillar
of the car that the police had labeled ‘‘bullet hole [number] 2.’’ The court
replied that ‘‘that infers there was more than one shot fired, and that’s not
necessarily consistent with the evidence, either.’’ Defense counsel further
argued that there was evidence of a second gunshot because Walker testified
that in his original statement to the police, he said that he heard two gunshots.
The court noted that argument and moved on.
12
The evidence suggests further that Bryan’s plan was to have the victim
killed before she became seven months pregnant so that the fetus was not
‘‘liable as another body.’’ At the time of her death, the victim was nineteen
weeks, almost five months, pregnant. Though this does not necessarily prove
that Bryan would have waited two more months to plan the victim’s murder,
it is illustrative evidence to further undermine the defendant’s argument
that the victim was in imminent harm.
13
The defendant does not challenge this decision on appeal.
14
The defendant argues in his reply brief that his claim cannot be waived
pursuant to Kitchens because the model jury instructions were revised on
March 4, 2015, after he was convicted, to include language regarding a
defendant’s specific intent to enter into an agreement. The defendant argues,
therefore, that this ‘‘substantive change’’ to the model jury instructions
should apply retroactively to pending cases, just as ‘‘substantive changes
to the law’’ would. This argument is unavailing.
The preamble to the model jury instructions expressly provides: ‘‘This
collection of jury instructions . . . is intended as a guide for judges and
attorneys . . . . The use of these instructions in entirely discretionary and
their publication by the Judicial Branch is not a guarantee of their legal
sufficiency.’’ (Emphasis added.) Connecticut Criminal Jury Instructions (4th
Ed. 2008) preamble, available at http://www.jud.ct.gov/ji/Criminal/Crimi-
nal.pdf (last visited October 11, 2017) (copy contained in the file of this
case in the Appellate Court clerk’s office). Accordingly, if defense counsel
believed that the statement of law provided in the jury instructions was
incorrect, she was obligated to object to its use, which she did not.
In fact, defense counsel did object at the charge conference to another
portion of the proposed instructions, regardless of the fact that it was from
the model jury instructions. In discussing the proposed instructions on count
one, murder, defense counsel objected to the language in the draft which
provided: ‘‘This means that the defendant’s conduct was the proximate cause
of the decedent’s death. You must find it proved beyond a reasonable doubt
that [the victim] died as a result of the actions of the defendant.’’ Defense
counsel argued that the court ‘‘[states] that sentence as if [the court is]
making a conclusion for the jury. It’s confusing and I’m objecting to [the]
language.’’ The court stated that it was using the language from the model
jury instructions to which defense counsel replied, ‘‘I still have the same
problem with it even though it’s the model jury instructions. . . . So, I am
objecting.’’ The court noted the objection and used the language as proposed
in its instructions. Defense counsel knew, therefore, that regardless of the
origin of the language used by the court in the proposed instructions, she
was obligated to object if she felt it was a misstatement of law.