State v. Davis , 178 Conn. App. 324 ( 2017 )

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STATE OF CONNECTICUT v. PAUL DAVIS
(AC 37582)
Alvord, Mullins and Beach, Js.*
Syllabus
Convicted of accessory to murder, conspiracy to commit murder and attempt
to commit murder, the defendant appealed. The defendant’s conviction
stemmed from his participation in a drive-by shooting in which two
passengers in a car he was driving shot at a group of children on a street
corner, killing F and seriously wounding another. This court affirmed
the judgment and, thereafter, the defendant filed a petition for certifica-
tion with our Supreme Court, which granted the petition and remanded
the matter to this court to consider the defendant’s unpreserved claim
that the trial court committed plain error by erroneously instructing the
jury that the state did not need to prove that the defendant had the
specific intent to kill F in order to find him guilty of accessory to murder.
On remand, held that the defendant’s claim failed under a plain error
analysis because it was clear that the court correctly instructed the jury
that it did not have to find a specific intent to kill a particular victim
in order to find the defendant guilty of accessory to murder; that court
properly instructed the jury that to find the defendant guilty, it had to
find that he had the specific intent to kill, but that it did not have to
find that he intended to kill F specifically, as the murder statute (§ 53a-
54a) on its face allows for transferred intent for the crime of murder
such that, when a person engages in conduct with the intent to kill
someone, there can be a separate count for every person actually killed,
and under the circumstances here, the court’s instructions were correct
in law and were tailored to the evidence presented, which showed that
the defendant and his cohorts had no particular victim in mind when
they set out to engage in a retaliatory killing and fired more than seven-
teen bullets at the group of children on the street corner.
Argued September 26—officially released November 28, 2017
Procedural History
Substitute information charging the defendant with
the crimes of accessory to capital felony, accessory to
murder, conspiracy to commit murder and attempt to
commit murder, brought to the Superior Court in the
judicial district of Hartford and tried to the jury before
Dewey, J.; verdict and judgment of guilty of accessory
to murder, conspiracy to commit murder and attempt
to commit murder, from which the defendant appealed;
thereafter, this court affirmed the judgment; subse-
quently, the defendant filed a petition for certification
to appeal with our Supreme Court, which granted the
petition and remanded the matter to this court to con-
sider the defendant’s claim. Affirmed.
Mary A. Beattie, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were Gail P. Hardy, state’s attor-
ney, and John F. Fahey, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
MULLINS, J. This case returns to us on remand from
our Supreme Court; see State v. Davis, 325 Conn. 918,
163 A.3d 618 (2017); with direction to consider the claim
of plain error raised by the defendant, Paul Davis, in
light of its decision in State v. McClain, 324 Conn. 802,
155 A.3d 782 (2017). We now consider the defendant’s
appeal from the judgment of conviction of accessory
to murder in violation of General Statutes §§ 53a-54a
(a) and 53a-8 (a),1 in which he claimed that the trial
court committed plain error by improperly instructing
the jury that it was not necessary for the state to prove
that the defendant intended to kill the victim to find
him guilty of accessory to murder.
We conclude that the trial court did not instruct the
jury that it was not necessary for the state to prove the
defendant’s intent to kill. Rather, the trial court properly
instructed the jury that the state was not required to
prove that the defendant intended to kill the specific
victim that was killed. Accordingly, we affirm the judg-
ment of the trial court.
The following facts, as set forth in our first Davis
opinion; State v. Davis, 163 Conn. App. 458, 136 A.3d
257 (2016), remanded in part, 325 Conn. 918, 163 A.3d
618 (2017); are relevant here. ‘‘The defendant was a
member of a gang in Hartford. On May 28, 2006, in
retaliation for a shooting that occurred earlier that day
in which another member of the defendant’s gang was
shot, the defendant, Ackeem Riley and Dominique Mack
discussed conducting a drive-by shooting in the Nelton
Court area of Hartford. The trio had no specific vic-
tim intended.
‘‘The defendant drove himself, Riley and Mack toward
the Nelton Court area in a car he had borrowed. Riley
was armed with a nine millimeter Glock handgun. Mack
was armed with a nine millimeter Taurus. As the defen-
dant drove, he, Riley and Mack saw a group of children
at the corner of Elmer and Clark Streets. Riley and
Mack fired at least seventeen shots from their handguns
at the group, striking two boys. One of the victims,
Kerry Foster, Jr., a fifteen year old boy, was hit by five
bullets, resulting in his death. The other victim, Cinque
Sutherland, a fourteen year old boy, was hit by three
bullets, resulting in serious injury.
‘‘After the shooting, the defendant, Riley and Mack
fled the scene and left the car on Guilford Street. From
there, they summoned a cab to take them to 140 Oakland
Terrace. Riley, Mack and another man later returned
to the vehicle and set it on fire.
‘‘On June 7, 2006, the defendant agreed to speak with
members of the Hartford Police Department, and he
provided them with information about the shooting. He
told the officers about the planning of the shooting, the
types of firearms used and where they could be found.
He also told them how the vehicle used in the shooting
later was set on fire. The defendant, however, did not
disclose his involvement in the shooting until almost
three years later, in May, 2009, when he again spoke
to the police and provided a written statement.
‘‘After providing a written statement to the police,
the defendant was charged [inter alia] with and later
convicted of accessory to murder . . . .’’ Id., 460–61;
see also footnote 1 of this opinion. Additional facts will
be set forth as necessary.
The defendant claims, with respect to his conviction
of accessory to murder, that the trial court improperly
instructed the jury that it was not necessary for the
state to prove that he intended to kill the victim to
find him guilty of accessory to murder. The defendant
concedes that he waived this claim pursuant to State
v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).
He argues, however, this instruction was ‘‘plain error
and failure to grant relief would result in manifest injus-
tice.’’ We are not persuaded that the court committed
error in its instruction.
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily [discernible] on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This deter-
mination clearly requires a review of the plain error
claim presented in light of the record. Although a com-
plete record and an obvious error are prerequisites for
plain error review, they are not, of themselves, suffi-
cient for its application. . . . [T]he plain error doctrine
is reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings. . . . [I]n addition to examin-
ing the patent nature of the error, the reviewing court
must examine that error for the grievousness of its
consequences in order to determine whether reversal
under the plain error doctrine is appropriate. A party
cannot prevail under plain error unless it has demon-
strated that the failure to grant relief will result in mani-
fest injustice. . . . [Previously], we described the two-
pronged nature of the plain error doctrine: [An appel-
lant] 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; emphasis omitted; internal quotation marks
omitted.) State v. McClain, supra, 324 Conn. 812.
In evaluating a claim of instructional impropriety,
however, ‘‘we must view the court’s jury instructions
as a whole, without focusing unduly on one isolated
aspect of the charge. . . . In determining whether a
jury instruction is improper, the charge . . . is not to
be critically dissected for the purpose of discovering
possible inaccuracies of statement, but it is to be consid-
ered rather as to its probable effect [on] the jury in
guiding [it] to a correct verdict in the case.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Carrion, 313 Conn. 823, 845, 100 A.3d 361 (2014).
During its charge to the jury on the crime of accessory
to murder, the court instructed, in relevant part: ‘‘I have
provided the elements of the crime of murder pre-
viously. However, with respect to intent in this particu-
lar count, it is not necessary for a conviction of murder
that the state prove that the defendant intended to kill
Kerry Foster.’’ The defendant contends that this is ‘‘a
patently incorrect statement of the law’’ because it told
the jury that the state ‘‘did not need to prove specific
intent to murder.’’ The state responds that the court’s
instruction was correct in law and that it did not tell
the jury that it did not have to find a specific intent to
kill—only that it did not have to find a specific intent
to kill this particular victim. We agree with the state.
When instructing the jury in this case, the court
repeatedly told it that in order to find the defendant
guilty, it had to find that the defendant had the specific
intent to kill. When the court gave its instructions on
the crime of murder, which it specifically referenced
in its instructions on accessory to murder, the court
stated: ‘‘For you to find the defendant guilty of the
charge of murder, the state must prove the following
elements beyond a reasonable doubt:
‘‘An intent to cause death. The first element is that
the defendant specifically intended to cause the death
of another person. There is no particular length of time
necessary for the defendant to have formed the specific
intent to kill. A person acts intentionally with respect
to a result when his conscious objective is to cause
such result.
‘‘The specific intent to cause death may be inferred
from circumstantial evidence. Please refer to my earlier
instructions concern[ing] specific intent. The type and
number of wounds inflicted may be considered as evi-
dence of the perpetrator’s intent and from such evi-
dence an inference may be drawn that there was intent
to cause death. Any inference may be drawn from the
nature of any instrumentality used and the manner of
its use in an inference of fact to be drawn by you upon
consideration of these and other circumstances in the
case in accordance with my previous instructions. This
inference is not a necessary one. That is, you are not
required to infer intent from the defendant’s alleged
conduct, but it is an inference you may draw if you find
it is reasonable and logical and in accordance with my
instructions on circumstantial evidence.
‘‘The second element is that the defendant, acting
with the intent to cause the death of another person,
caused the death of Kerry . . . Foster. 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 Kerry Foster . . . died as a
result of the actions of the defendant. Please refer to
the earlier instructions concerning proximate cause.
‘‘Now, summary of murder. In summary, to establish
the offense of murder, the state must prove beyond a
reasonable doubt: one, the defendant intended to cause
the death of another person, and two, in accordance
with that intent, the defendant cause[d] the death of
Kerry Foster.’’
Then, on the particular charge of accessory to mur-
der, the court instructed the jury in relevant part: ‘‘I
have provided the elements of the crime of murder
previously. However, with respect to intent in this par-
ticular count, it is not necessary for a conviction of
murder that the state prove that the defendant intended
to kill Kerry Foster.’’ The court also instructed: ‘‘To
establish the guilt of a defendant as an accessory . . .
the state must prove criminality of the intent and com-
munity of the unlawful purpose. That is, for the defen-
dant to be guilty as an accessory, it must be established
that he acted with the mental state necessary to commit
murder and that in furtherance of that crime, he solic-
ited, requested, commanded, importuned, or intention-
ally aided the principal to commit murder. Evidence of
mere presence as an inactive companion, or passive
acquiescence, or the doing of innocent acts which, in
fact, aid in the commission of a crime, is insufficient
to find the defendant guilty as an accessory under
the statute.’’
Pursuant to § 53a-8 (a): ‘‘A person, acting with the
mental state required for commission of an offense,
who solicits, requests, commands, importunes or inten-
tionally 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.’’
Pursuant to § 53a-54a (a): ‘‘A person is guilty of mur-
der when, with intent to cause the death of another
person, he causes the death of such person or of a third
person . . . .’’ (Emphasis added.) ‘‘Thus, the statute on
its face allows transferred intent for the crime of murder
. . . . The clear meaning of the statute leads to the
result that, when a person engages in conduct with the
intent to kill someone, there can be a separate count of
murder for every person actually killed by the conduct.’’
(Emphasis altered.) State v. Courchesne, 296 Conn. 622,
713, 998 A.2d 1 (2010).
The facts of this case demonstrate that the defendant
and his cohorts drove toward the Nelton Court area
determined to kill in retaliation for the death of one of
their friends earlier in the day. State v. Davis, supra,
163 Conn. App. 460–61. As they saw a group of children
standing on a corner, they opened fire, firing more than
seventeen bullets toward those children, with no spe-
cific victim intended; they just intended to kill some-
one. Id.
We conclude that the court’s instructions, tailored to
the facts of this case, were correct in law and fit with
the evidence presented, namely, that the defendant and
his cohorts had no particular victim in mind; they just
wanted to engage in a retaliatory killing. The court
correctly instructed the jury that it did not have to find
that the defendant intended to kill any specific person,
only that the defendant intended to kill someone. On
the basis of our review of the court’s instructions, we
conclude that the defendant’s claim fails a plain error
analysis. There is no error.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
The defendant also was convicted of conspiracy to commit murder in
violation of General Statutes §§ 53a-48 (a) and 53a-54a (a), and attempt to
commit murder in violation of General Statutes §§ 53a-49 (a) (2) and 53a-
54a (a). We upheld those convictions in State v. Davis, 163 Conn. App. 458,
136 A.3d 257 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618 (2017).
Additionally, the defendant had been charged with, but acquitted of, acces-
sory to capital felony in violation of General Statutes (Rev. to 2005) § 53a-
54b (8) and § 53a-8 (a). Pursuant to our Supreme Court’s remand order, we
consider under the plain error doctrine only the defendant’s conviction of
accessory to commit murder.