State v. Washington ( 2018 )

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STATE OF CONNECTICUT v.
TRAJUAN A. WASHINGTON
(AC 40031)
Lavine, Sheldon and Bright, Js.
Syllabus
Convicted of the crimes of conspiracy to commit home invasion, attempt
to commit home invasion, attempt to commit robbery in the first degree,
conspiracy to commit robbery in the first degree and attempt to commit
assault in the first degree, the defendant appealed to this court. The
defendant’s conviction stemmed from an incident in which the defendant
and two coconspirators, including D, allegedly planned to break into
an apartment to steal a large sum of money from a person who lived
there. After arriving at the location, the defendant entered the apartment
building with his coconspirators, knocked on an interior door of a first
floor apartment, and identified himself to an occupant of the apartment
by the name of a person with whom he believed the occupant was
familiar. After the occupant of the apartment began to open the door,
she quickly closed it when she saw three men in hoodies. The defendant
attempted to catch the door before the occupant closed it shut but was
unsuccessful. The defendant and his coconspirators then exited the
apartment building, but while walking away down the street, were fol-
lowed by a man who had exited the apartment building after them.
Believing that the man was armed, the defendant and D fired shots from
their handguns in the direction of the building before fleeing the location.
Several weeks later, the police identified D as one of the shooters, who
in turn identified the defendant as the other shooter. D, who had agreed
to cooperate with the state, testified at the defendant’s trial. Held:
1. The defendant’s claim that the evidence was insufficient to support his
conviction of conspiracy to commit home invasion was unavailing; the
jury reasonably could have found that the defendant had agreed with
his coconspirators to engage in conduct constituting home invasion in
light of D’s testimony that they had intended to break into the apartment
to steal a large sum of money from the occupant, that they had travelled
to the apartment together for that purpose, and that the defendant and
D were armed with loaded handguns that they had purchased together,
and the jury was entitled to credit and rely on D’s testimony as a basis
for conviction, even if it was the only evidence offered to establish one
or more essential elements of the charged offense, and even though D
had been offered and accepted a favorable plea bargain in exchange
for his incriminating testimony.
2. The evidence was sufficient to support the defendant’s conviction of
attempt to commit home invasion, as the jury reasonably could have
found that the defendant intentionally took a substantial step in a course
of conduct planned to culminate in the crime of home invasion; the
evidence presented at trial, including D’s testimony, concerning the
defendant’s conduct in going to the apartment, armed with a loaded
handgun, with the intent to break into the apartment and steal a large
sum of money strongly corroborated his criminal purpose, especially
given that he had misidentified himself to the occupant of the apartment
in an attempt to cause the occupant of the apartment to open the door,
and attempted to force his way into the apartment when the door began
to open, which strongly corroborated his intent to enter an occupied
dwelling, without the permission of its owner or occupant, with the
intent to commit a crime therein, while he was armed with a deadly
weapon.
3. The defendant could not prevail on his unpreserved claim that the trial
court improperly instructed the jury on the common essential element
of conspiracy to commit home invasion and attempt to commit home
invasion by substituting the term ‘‘dwelling’’ with the word ‘‘building’’
in its final oral jury instructions, as it was not reasonably possible
that the instructions, when viewed as a whole, misled the jury and the
defendant, thus, failed to demonstrate the existence of a constitutional
violation that deprived him of a fair trial pursuant to the third prong of
the test set forth in State v. Golding (231 Conn. 233): although the trial
court erred by misspeaking during its oral instructions and substituting
the word ‘‘building’’ for the term ‘‘dwelling’’ on eight of twenty occasions,
the jury had before it the written instructions which clearly, and in a
manner sufficiently correct in law, communicated that the defendant
must have conspired to unlawfully enter, or intentionally taken a sub-
stantial step in a course of conduct planned to culminate in the unlawful
entry of, a dwelling, and not merely a building, under circumstances
constituting home invasion, to be guilty of conspiracy or attempt to
commit home invasion, and neither defense counsel nor the prosecutor
objected to or recognized the discrepancy between the written and oral
instructions, which suggested that the misstatements were not notice-
able to the court, counsel or the jury; moreover, it was not reasonably
possible, in the context of this case, that the jury could have been misled
to believe that to convict the defendant of conspiracy to commit home
invasion and attempt to commit home invasion, it needed only to find
that he had agreed to enter and attempted to enter the common spaces
of the apartment building in which the intended victims dwelled, and
the defendant was not entitled to a reversal of the judgment pursuant
to the plain error doctrine, as his claim of instructional error was not
so extraordinary that it necessitated reversal of the judgment.
Argued September 7—officially released November 20, 2018
Procedural History
Substitute information charging the defendant with
the crimes of attempt to commit home invasion, con-
spiracy to commit home invasion, attempt to commit
robbery in the first degree, conspiracy to commit rob-
bery in the first degree, attempt to commit assault in
the first degree and criminal possession of a firearm,
brought to the Superior Court in the judicial district of
Hartford, where the defendant elected a trial to the
court on the charge of criminal possession of a firearm;
thereafter, the remaining charges were tried to the jury
before Dewey, J.; verdict of guilty; subsequently, the
court dismissed the charge of conspiracy to commit
robbery in the first degree; judgment of guilty of attempt
to commit home invasion, conspiracy to commit home
invasion, attempt to commit robbery in the first degree
and attempt to commit assault in the first degree; there-
after, the state entered a nolle prosequi as to the charge
of criminal possession of a firearm, and the defendant
appealed to this court. Affirmed.
Joseph A. Jaumann, assigned counsel, for the appel-
lant (defendant).
Brett R. Aiello, special deputy assistant state’s attor-
ney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Anthony Bochicchio, senior assis-
tant state’s attorney, for the appellee (state).
Opinion
SHELDON, J. The defendant, Trajuan A. Washington,
appeals from the judgment of conviction that was ren-
dered against him, upon the verdict of a jury in the
Hartford Superior Court, on charges of conspiracy to
commit home invasion in violation of General Statutes
§§ 53a-48 and 53a-100aa (a) (2) and attempt to commit
home invasion in violation of General Statutes §§ 53a-
49 (a) (2) and 53a-100aa (a) (2).1 The defendant was
tried under an amended information dated May 2, 2016,
in which the state alleged, in relevant part, that on
February 19, 2014 (1) he conspired to commit home
invasion by agreeing with one or more persons to enter
a dwelling at 33 Seyms Street in Hartford with the intent
to commit a crime therein, while he was armed with a
deadly weapon and another person not participating in
the crime was actually present inside the dwelling, and
(2) he attempted to commit home invasion by intention-
ally taking a substantial step in a course of conduct
planned to culminate in the commission of home inva-
sion, while acting with the mental state required for the
commission of that offense.2 On appeal, the defendant
claims that (1) the evidence was insufficient to support
his conviction of conspiracy to commit home invasion
and attempt to commit home invasion, and (2) the trial
court erred in instructing the jury on a common essen-
tial element of conspiracy to commit home invasion
and attempt to commit home invasion by repeatedly
substituting the word building for the term dwelling in
its final instructions describing those offenses. We
affirm the judgment of the trial court.
The jury was presented with the following evidence
upon which to base its verdict. On February 19, 2014, at
approximately 8:33 a.m., officers of the Hartford Police
Department were dispatched to 33 Seyms Street in Hart-
ford to investigate a report of shots fired at that location.
Officer Dwayne Tine, a patrolman, was the first officer
to arrive at the scene. Upon his arrival, Tine secured the
area and performed a preliminary investigation, during
which he spoke with Tiffany and Julianna Moore, two
sisters who lived on the first floor of the three story
apartment building at that address.
Sergeant Jason Lee, a detective with the crime scene
division of the Hartford Police Department, arrived at
the scene shortly thereafter. Upon his arrival, he
searched the area and made two sets of findings of
possible relevance to the shooting. First, he found two
spent cartridge casings on the sidewalk in front of 39
Seyms Street, the building immediately to the west of
33 Seyms Street. Second, upon inspecting the front of
the building at 33 Seyms Street, he found a bullet hole
in the center of the front door, a ‘‘defect’’ that could
have been caused by a bullet to the left of the number
placard immediately to the right of the front door, and
jacketing from a bullet in a hole between the brick
wall and the wooden frame of the first floor apartment
window to the left of the front door.
Detective Mark Rostkowski of the Hartford Police
Shooting Task Force also responded to the report of
shots fired at 33 Seyms Street on the morning of Febru-
ary 19. While in the area, he recovered a surveillance
video of the shooting that had been recorded by a cam-
era installed on the adjacent building at 39 Seyms Street.
A portion of the video, bearing a time stamp of 8:26
a.m., showed three men wearing hoodies walking down
the sidewalk toward 39 Seyms Street from the direction
of 33 Seyms Street when two of the men, apparently
reacting to something off camera behind them, sud-
denly turned in that direction, raised handguns they
had been carrying, and fired shots before running away
further to the west. At the conclusion of their investiga-
tion on February 19, the police had no leads as to possi-
ble suspects in connection with the shooting.
Police investigators got their first lead as to who
might have perpetrated the shooting when, several
weeks later, they received a tip from Jhllah Govan, who
claimed to have witnessed the shooting through the
window of the first floor apartment at 33 Seyms Street,
where he was then living with his girlfriend, Julianna
Moore, and her sister, Tiffany Moore. Govan reported
that he had gone to the window that morning after
hearing the apartment’s front door slam and Tiffany cry
out for help. When he did so, he reportedly saw three
men walking away from the apartment building to his
left when two of the men suddenly turned back toward
the building and fired handguns in his direction. Govan
identified one of the shooters as a man he had come
to know as ‘‘Awack,’’ with whom he had been incarcer-
ated at the Hartford Correctional Center sometime after
the shooting following his arrest on unrelated charges.
Detective Rostkowski subsequently determined that
Awack was an alias used by Shannon Davis of Hartford.
Accordingly, police investigators showed Govan a pho-
tographic array that included Davis’ photo, from which
Govan identified Davis as one of the men who had
fired shots toward 33 Seyms Street on the morning of
February 19.
When Rostkowski located Davis, he agreed to speak
to detectives about the incident. In his meeting with
detectives, Davis confessed to his involvement in the
incident and identified the defendant as the other man
who had fired shots toward the apartment building at
33 Seyms Street during the course of that incident. Davis
was later arrested in connection with the incident and
agreed to cooperate with the state.3
At the defendant’s trial, Davis testified that he, the
defendant and a third man he identified only as ‘‘Dough’’
went together to the apartment building at 33 Seyms
Street on the morning of February 19, with the intent
to break into the apartment of a man named ‘‘300’’ and
steal a large sum of money from him. The defendant
and Davis were both armed with handguns, which they
had purchased together approximately one week before
the incident. After driving together to 33 Seyms Street
in Davis’ car, the three men entered the front door of
the building and walked to the door of a first floor
apartment through an interior hallway. The defendant
knocked on the apartment door, which had no peep
hole in it, and identified himself to the apartment’s
occupants by the name of a person with whom he
believed they were familiar. A female resident of the
apartment answered the door and started to open it.
When, however, she saw the three men standing before
her wearing hoodies, she quickly closed the door.
Although the defendant tried to catch the door before
the woman could close it, she was able to slam it shut.
The three men then left the apartment building and
began to walk away to their left, in a westerly direction
down Seyms Street, when two women in the first floor
apartment began to taunt them from the apartment’s
front window. Shortly thereafter, an unidentified man
came out the front door of the apartment building.
Believing that the unidentified man was carrying a
weapon, Davis and the defendant turned toward him
and fired shots at him with their handguns. No one was
injured by the shots. Davis identified himself and the
defendant in the video recording of the shooting that
Detective Rostkowski had obtained from 39 Seyms
Street as the two men who fired handguns in the direc-
tion of 33 Seyms Street before running away.
After concluding its deliberations, the jury returned
a guilty verdict on all charges, including conspiracy
to commit home invasion, attempt to commit home
invasion, conspiracy to commit robbery in the first
degree, attempt to commit robbery in the first degree,
and attempt to commit assault in the first degree.4 The
defendant was later sentenced on those charges to a
total effective term of forty years of incarceration, exe-
cution suspended after thirty years, and five years of
probation. This appeal followed. Additional facts will
be set forth as necessary.
I
CLAIMS OF EVIDENTIARY INSUFFICIENCY
The defendant first claims that the evidence was
insufficient to support his conviction of conspiracy to
commit home invasion and attempt to commit home
invasion. Specifically, he contends that evidence that
he and his companions drove together to 33 Seyms
Street while armed with loaded handguns with the
intent to break in and steal money, that they attempted
to gain entry to the apartment by tricking the residents
to believe they were persons known to them, and that
he tried to catch the door when the resident attempted
to shut it, did not establish that he ever agreed with
his companions to commit home invasion or that he
intentionally took a substantial step in a course of con-
duct planned to culminate in the commission of that
offense. For the following reasons, we disagree.
‘‘In reviewing a sufficiency of the evidence claim, we
apply a two part test. First we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [jury] reasonably could have concluded that the
cumulative force of the evidence established guilt
beyond a reasonable doubt . . . . This court cannot
substitute its own judgment for that of the jury if there
is sufficient evidence to support the jury’s verdict.’’
(Internal quotation marks omitted.) State v. Allan, 311
Conn. 1, 25, 83 A.3d 326 (2014). In applying that test,
‘‘we do not ask whether there is a reasonable view of the
evidence that would support a reasonable hypothesis
of innocence. We ask, instead, whether there is a rea-
sonable view of the evidence that supports the jury’s
verdict of guilty.’’ (Internal quotation marks omitted.)
State v. Stephen J. R., 309 Conn. 586, 594, 72 A.3d
379 (2013).
A
Conspiracy to Commit Home Invasion
‘‘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 conspiracy.’’
General Statutes § 53a-48 (a). ‘‘In proving the requisite
element of agreement, [i]t is not necessary to establish
that the defendant and his coconspirators signed
papers, shook hands or uttered the words we have an
agreement . . . . Indeed, [b]ecause of the secret
nature of conspiracies, a conviction is usually based
on circumstantial evidence. . . . [A] conspiracy can be
inferred from the conduct of the accused.’’ (Internal
quotation marks omitted.) State v. Rosado, 134 Conn.
App. 505, 511, 39 A.3d 1156, cert. denied, 305 Conn. 905,
44 A.3d 181 (2012). ‘‘[P]roof of a conspiracy to commit
a specific offense requires proof that the conspirators
intended to bring about the elements of the conspired
offense.’’ (Internal quotation marks omitted.) State v.
Padua, 273 Conn. 138, 167, 869 A.2d 192 (2005).
General Statutes § 53a-100aa provides, in relevant
part: ‘‘(a) A person is guilty of home invasion when
such person enters . . . unlawfully in a dwelling, while
a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime
therein, and, in the course of committing the offense
. . . (2) such person is armed with . . . a deadly
weapon . . . .’’ As used in that statute, the term
‘‘ ‘dwelling’ means a building which is usually occupied
by a person lodging therein at night, whether or not a
person is actually present . . . .’’ General Statutes
§ 53a-100 (a) (2). The term ‘‘ ‘[d]eadly weapon’ means
any weapon, whether loaded or unloaded, from which
a shot may be discharged . . . .’’ General Statutes
§ 53a-3 (6). The term ‘‘enters [a dwelling] . . . unlaw-
fully’’ means enters a dwelling ‘‘not open to the public
and when the actor is not otherwise licensed or privilege
to do so.’’ General Statutes § 53a-100 (b).
Reading the conspiracy and home invasion statutes
together, in light of the foregoing definitions, the essen-
tial elements of conspiracy to commit home invasion
are as follows: (1) the defendant agreed with one or
more other persons to commit home invasion, to wit,
to enter a dwelling without license or privilege to do
so, with the intent to commit a crime therein, while he
was armed with a weapon from which a shot could be
discharged, and a person other than one of his cocon-
spirators actually was present in the dwelling; (2) the
defendant specifically intended to engage in conduct
constituting the crime of home invasion, as previously
defined; and (3) at least one of the coconspirators com-
mitted an overt act in pursuance of that conspirato-
rial agreement.
The defendant first argues that the state’s evidence
was insufficient to convict him of conspiracy to commit
home invasion because such evidence came principally
from Shannon Davis, one of his alleged coconspirators,
who had been offered a favorable plea bargain in
exchange for his incriminating testimony. It is well
established, however, that ‘‘[t]his court does not retry
the case or evaluate the credibility of the witnesses.
. . . Rather, we must defer to the [trier of fact’s] assess-
ment of the credibility of the witnesses based on its
firsthand observation of their conduct, demeanor and
attitude.’’ (Citation omitted; internal quotation marks
omitted.) State v. McClam, 44 Conn. App. 198, 208, 689
A.2d 475, cert. denied, 240 Conn. 912, 690 A.2d 400(1997). Accordingly, the jury was entitled to credit
Davis’ testimony and to rely on it as a basis for convic-
tion even if it was the only evidence offered to establish
one or more essential elements of the charged offense.
Therefore, we reject the defendant’s initial challenge
to the sufficiency of the evidence to support his conspir-
acy conviction.
The defendant next claims that the state presented
insufficient evidence to establish that he and his com-
panions entered into an agreement to commit any
crime, much less the specific crime of home invasion,
as required to convict him of conspiracy to commit
that offense. On the basis of the testimony of Davis
concerning how he, the defendant and Dough planned
their visit to 33 Seyms Street on the morning of February
19, however, and their joint efforts thereafter to carry
out that very plan, we disagree.
According to Davis, the men’s shared purpose in
going to 33 Seyms Street that morning was to break
into 300’s apartment and take a large sum of money
from him. All three men travelled together to 33 Seyms
Street that morning for that purpose, supporting the
inference that they did so intentionally, pursuant to a
joint agreement among them. They did so, moreover,
while two of the men, the defendant and Davis, were
armed with loaded, operable handguns that they had
purchased together approximately one week earlier.
This evidence, if believed, certainly was sufficient to
establish not only that the three men agreed to engage
in a joint criminal enterprise on the morning of February
19, but that they did so with the shared intent to enter
an occupied dwelling at that address, without the own-
er’s or occupant’s permission, with the intent to commit
a larceny within that dwelling, at gunpoint if necessary,
while the defendant was armed with a deadly weapon
from which a shot could be discharged. The jury reason-
ably could have relied upon such evidence, viewed in
the light most favorable to the state, to find that the
specific crime that the defendant and his companions
agreed to commit that morning was home invasion in
violation of § 53a-100aa. Accordingly, we also reject the
defendant’s remaining challenges to the sufficiency of
the evidence to support his conspiracy to commit home
invasion conviction.
B
Attempt to Commit Home Invasion
The defendant next challenges the sufficiency of the
state’s evidence to support his conviction of attempt
to commit home invasion. The defendant claims, more
particularly, that because ‘‘no entry was ever made’’
into the first floor apartment at 33 Seyms Street, the
state failed to establish that he intended to commit
home invasion, or intentionally took a substantial step
in a course of conduct planned to culminate in the
commission of that offense, as opposed to some other
crime. We disagree.
General Statutes § 53a-49 (a) (2) provides in relevant
part: ‘‘A person is guilty of an attempt to commit a
crime if, acting with the kind of mental state required
for commission of the crime, he . . . intentionally does
or omits to do anything which, under the circumstances
as he believes them to be, is an act or omission constitut-
ing a substantial step in a course of conduct planned
to culminate in his commission of the crime.’’ ‘‘To con-
stitute a substantial step, the conduct must be strongly
corroborative of the actor’s criminal purpose. . . .
This standard focuses on what the actor has already
done and not what remains to be done. . . . The sub-
stantial step must be at least the start of a line of conduct
which will lead naturally to the commission of a crime.’’
(Internal quotation marks omitted.) State v. Andrews,
114 Conn. App. 738, 747, 971 A.2d 63, cert. denied, 293
Conn. 901, 975 A.2d 1277 (2009).
General Statutes § 53a-49 (b) provides in relevant
part: ‘‘Without negating the sufficiency of other con-
duct, the following, if strongly corroborative of the
actor’s criminal purpose, shall not be held insufficient
as a matter of law . . . (4) unlawful entry of a struc-
ture, vehicle or enclosure in which it is contemplated
that the crime will be committed . . . [and] (5) posses-
sion of materials to be employed in the commission of
the crime, which are specially designed for such unlaw-
ful use or which can serve no lawful purpose of the actor
under the circumstances . . . .’’ In State v. Serrano,
91 Conn. App. 227, 242–43, 880 A.2d 183, cert. denied,
276 Conn. 908, 884 A.2d 1029 (2005), this court held
that the evidence was sufficient to support a conviction
of attempt to commit burglary where the victim ‘‘was
in her apartment at the relevant time when she saw a
fork being inserted past the door lock striker and saw
the doorknob turn. When the door opened, she saw the
defendant holding a fork near the locking mechanism.
The defendant stated that he was at the wrong apart-
ment, covered his face and ran down the stairs. It was
reasonable for the jury to infer that the defendant was
attempting to break into the apartment.’’
Reading the attempt and home invasion statutes
together, the essential elements of attempt to commit
home invasion are that (1) the defendant intentionally
took a substantial step in a course of conduct planned
to culminate in his commission of the crime of home
invasion, to wit, entering a dwelling without license or
privilege to do so, with the intent to commit a crime
therein, while he was armed with a weapon from which
a shot could be discharged, and another person not
participating in the crime was actually present in the
dwelling; and (2) at the time he took that substantial
step, the defendant was acting with the mental state
required for commission of the crime of home invasion,
to wit, intent to commit a crime inside of the unlawfully
entered dwelling. The evidence presented at trial con-
cerning the defendant’s conduct on the morning of Feb-
ruary 19, was strongly corroborative of his alleged
criminal purpose of committing the crime of home inva-
sion. On the basis of Davis’ testimony, which the jury
reasonably could have credited and relied upon, the
defendant went to 33 Seyms Street on that morning,
while he and Davis were armed with loaded weapons
from which shots could be discharged, with the intent
to break into an apartment at that address and steal a
large sum of money from a person who lived there.
When he and his companions arrived at that address,
moreover, he used a ruse to cause the person who
responded to his knock on the apartment door to open
that door, then tried to force his way inside when the
door began to open. Such evidence reasonably could
have been found to strongly corroborate the defendant’s
intent to enter an occupied dwelling, without the per-
mission of its owner or occupant, with the intent to
commit a crime therein, while he was armed with a
deadly weapon. It thus was sufficient to establish that
he intentionally took a substantial step in a course of
conduct planned to culminate in the commission of
a home invasion. Therefore, his claims of evidentiary
insufficiency as to his conviction of attempt to commit
home invasion must likewise be rejected.
II
CLAIMS OF INSTRUCTIONAL ERROR
The defendant next claims that the trial court erred by
instructing the jury improperly on a common essential
element of conspiracy to commit home invasion and
attempt to commit home invasion. Specifically, he con-
tends that the jury could have been misled by the trial
court’s repeated substitution of the word building for
the term dwelling in its final oral jury instructions on
the elements of those offenses, thereby diluting the
state’s burden of proof as to those offenses. The defen-
dant concedes that this claim is unpreserved, and thus
he seeks review of the claim under State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015). In the alternative, he asks that we reverse his
conviction under the plain error doctrine. Although we
conclude that the claim is reviewable under the first
two prongs of Golding, we further conclude that the
claim fails under Golding’s third prong, as modified by
In re Yasiel R., which requires that he demonstrate that
‘‘the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . .’’ Gold-
ing, supra, 240. The following additional facts are neces-
sary to our review of this claim.
On May 11, 2016, the day before the jury charge was
to be given, the court held a brief charging conference
on the record, during which it clarified the language it
would use in its instructions on the underlying offense
of home invasion, which the defendant was charged,
in separate counts, with conspiring and attempting to
commit. The court’s focus in that conference was on
whether it should describe that underlying offense, as
the defendant allegedly conspired and attempted to
commit it, as ‘‘entering or remaining’’ in the subject
premises under circumstances constituting home inva-
sion or merely ‘‘entering’’ those premises under such
aggravating circumstances. After the close of testimony
later that day, the court distributed to counsel copies
of what it called the ‘‘close-to-final version’’ of its jury
instructions so that they could take them home and
review them. The following day, when counsel were
asked to state for the record if they wished to make
any changes or corrections to the written instructions,
they both answered in the negative.
During the state’s closing argument concerning the
charge of attempted home invasion, it focused on the
alleged conduct of the defendant and his companions
just outside the interior door of the Moore sisters’ first
floor apartment, contending that ‘‘the attempt [was]
knocking on the door [of the apartment] and trying to
get in . . . .’’ Notably, defense counsel’s closing argu-
ment focused solely on the issue of identity, challenging
the credibility of the defendant’s alleged coconspirator,
Davis, who was the only person to implicate the defen-
dant as a participant in the charged offenses. Before
giving its oral charge, the court distributed written cop-
ies of its final instructions to the jury so that the jurors
could read along as the court read the instructions
aloud, and so they could have the instructions with them
in writing when they conducted their deliberations.
In its written instructions on the charge of home
invasion, the court substituted the word building for
the term dwelling on two of the twenty occasions when
it should have used the term dwelling to describe the
elements of the charged offenses. The first such occa-
sion was when the court, in discussing the first element
of home invasion, namely, that the defendant unlawfully
entered a dwelling, stated: ‘‘The inference may be drawn
if the circumstances are such that a reasonable person
of honest intention, in the situation of the defendant,
would have concluded that he knowingly and unlaw-
fully remained in the building.’’ (Emphasis added.) The
second such occasion occurred when the court, in dis-
cussing the fourth element of home invasion, namely,
that the defendant was armed with a deadly weapon,
stated: ‘‘This means that the defendant at some point
of entering the building had actual physical possession
of a deadly weapon.’’ (Emphasis added.) There were
no other substitutions of the word building for the term
dwelling in the court’s written instructions.
When reading its written instructions to the jury, how-
ever, the court misspoke on eight of the twenty occa-
sions when it should have used the word dwelling to
define the elements of home invasion by using the word
building in its stead. The first time the court misspoke
in its oral instructions was when it gave the general
definition of the term knowingly, stating: ‘‘In this case,
the inference may be drawn if the circumstances are
such that a reasonable person of honest intention, in
the situation of the defendant, would have concluded
that he unlawfully entered a building.’’ (Emphasis
added.) The court next substituted the word building
for the term dwelling in its recitation of the text of
General Statutes § 53a-100aa (a) (2), when it stated: ‘‘A
person is guilty of home invasion when such person
unlawfully enters or remains in a building . . . .’’
(Emphasis added.) The court thereafter used the word
building instead of the term dwelling on three more
occasions in quick succession, stating: ‘‘Element one—
it says remained in the building. It should be entered
a building. The first element is that the defendant know-
ingly and unlawfully entered a building.’’ (Emphasis
added.) The court again used the word building instead
of the term dwelling when it further explained the first
element of home invasion, stating: ‘‘The inference may
be drawn if the circumstances are such that a reason-
able person of honest intention, in the situation of the
defendant, would have concluded that he knowingly
and unlawfully—it says remained but it should be
entered in the building.’’ (Emphasis added.) This
instance was one of the two substitutions of the word
building for the term dwelling that also appeared in the
court’s written instructions.
The next use of the word building by the court was
when it appeared as part of the definition of the term
dwelling. The court thereafter continued to use the term
dwelling as required by the statute until it reached the
fourth and final element of home invasion, as to which
it said: ‘‘This means that the defendant at some point
of entering the building had actual physical possession
of a deadly weapon.’’ (Emphasis added). This use of
the word building for the term dwelling repeated the
second such substitution as it appeared in the court’s
written instructions.
At the conclusion of its oral charge, the court asked
counsel if they had any comments or questions about
the charge, but neither defense counsel nor the prosecu-
tor took exception to the charge. Thereafter, during the
jury’s deliberations, it asked no questions about any of
the court’s written or oral jury instructions.
As an initial matter, the defendant concedes that this
claim is unpreserved, and thus seeks review pursuant
to State v. Golding, supra, 213 Conn. 239–40. ‘‘[A] defen-
dant 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 constitutional magni-
tude 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 defendant’s claim will
fail.’’ (Emphasis in original; footnote omitted.) State v.
Golding, supra, 213 Conn. 239–40, as modified by In re
Yasiel R., supra, 317 Conn. 781.
This unpreserved claim is reviewable under the first
two prongs of Golding because the oral jury charge
and the written instructions are set forth in their entirety
in the record and the claim is of constitutional magni-
tude. See State v. Aponte, 259 Conn. 512, 518, 790 A.2d
457 (2002) (failure to instruct jury on essential element
of crime deprives defendant of constitutional right to
have jury told crimes charged and essential elements
of those crimes). Therefore, we turn to the third prong
of Golding to determine whether ‘‘the alleged constitu-
tional violation . . . exists and . . . deprived the
defendant of a fair trial.’’ State v. Golding, supra, 213
Conn. 240.
Our analysis under the third prong of Golding begins
with the ‘‘well established standard of review governing
claims of instructional impropriety. [I]ndividual jury
instructions should not be judged in artificial isolation,
but must be viewed in the context of the overall charge.
. . . The pertinent test is whether the charge, read in
its entirety, fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law. . . . Thus, [t]he whole
charge must be considered from the standpoint of its
effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error. . . . Accordingly, [i]n
reviewing a constitutional challenge to the trial court’s
instruction, we must consider the jury charge as a whole
to determine whether it is reasonably possible that the
instruction misled the jury. . . . In other words, we
must consider whether the instructions [in totality] are
sufficiently correct in law, adapted to the issues and
ample for the guidance of the jury.’’ (Internal quotation
marks omitted.) State v. Hampton, 293 Conn. 435, 452–
53, 988 A.2d 167 (2009). In resolving this claim, we
note that ‘‘[r]eviewing courts are especially hesitant in
reversing a conviction on the basis of an inaccuracy in
a trial court’s oral instruction if the jury was provided
with accurate written instructions.’’ State v. Holley, 174
Conn. App. 488, 497, 167 A.3d 1000 (2017), cert. denied,
327 Conn. 907, 170 A.3d 3 (2017), cert. denied,
U.S. , 138 S. Ct. 1012, 200 L. Ed. 2d 275 (2018).
In the present case, it is conceded by the state that
the court erred in substituting the word building for the
term dwelling in its instructions describing the crime
of home invasion as the alleged object of the defendant’s
alleged conspiracy and attempt. We conclude, however,
that it is not reasonably possible that the jury was misled
by such erroneous instructions under the circum-
stances of this case or that the defendant was thereby
deprived of a fair trial. The jury was given copies of
the court’s written instructions, which properly defined
the term dwelling and correctly listed it as an element
of home invasion on eighteen of the twenty times when
that term should have been used in such written instruc-
tions. Such written instructions were available to the
jury both during the delivery of the court’s oral instruc-
tions and throughout its deliberations. Thus, although
there were two instances in the written charge where
the trial court erroneously used the word building
instead of the term dwelling, when considering the
whole charge, the other eighteen uses of the term dwell-
ing clearly communicated to the jury that the defendant
must have conspired to enter a dwelling, not merely a
building, under circumstances constituting home inva-
sion to be guilty of conspiracy to commit home invasion,
and similarly must have intentionally taken a substantial
step in a course of conduct planned to culminate in the
unlawful entry of a dwelling under such circumstances
to be guilty of attempt to commit home invasion. More-
over, neither counsel seemed to recognize that the court
had misspoken at the time of trial since neither took
exception to the charge. This suggests that, although
the challenged misstatements were incorrect, they were
not noticeable to the court, counsel, or the jury.
The defendant claims that the jury could have been
misled to believe that to convict him of conspiracy to
commit home invasion and attempt to commit home
invasion, it needed only to find that he had agreed to
enter and attempted to enter the common spaces of the
apartment building instead of the individual apartment
within that building in which the intended victims
dwelled. This is not reasonably possible in the context
of this case. It was uncontested that the three men
entered the front door of the apartment building and
approached the door of a first floor apartment within
it through a common hallway. It was uncontested
throughout the trial that the first floor apartment was
indeed a dwelling. It was clear from the testimony pre-
sented during trial and the arguments of counsel that
the criminal activity at issue was that which occurred
at the inner door to the first floor apartment. There was
never any suggestion that the perpetrators’ unopposed
entry to the common area of the apartment building
through its front door was the basis of the prosecution
in this case. Therefore, although we conclude that the
court erred by misspeaking during its oral charge, the
overall charge, as delivered orally and in writing, was
sufficiently correct in law and adapted to the issues
to provide ample guidance to the jury, and, thus, the
defendant was not deprived of a fair trial. Accordingly,
his claim fails under Golding’s third prong
Furthermore, we also conclude that the defendant is
not entitled to reversal for plain error pursuant to Prac-
tice Book § 60-5. ‘‘[P]lain error review is reserved for
only the most egregious errors. When an error of such
a magnitude exists, it necessitates reversal.’’ State v.
McClain, 324 Conn. 802, 814, 155 A.3d 209 (2017). ‘‘[T]he
plain error doctrine . . . is not . . . a rule of review-
ability. 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
reversal of the trial court’s judgment, for reasons of
policy.’’ (Internal quotation marks omitted.) State v.
Gaffney, 148 Conn. App. 537, 542, 84 A.3d 1261, cert.
denied, 312 Conn. 902, 91 A.3d 907 (2014). For the fore-
going reasons, we cannot conclude that the defendant’s
claim is so extraordinary that it necessitates reversal
of the judgment.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant also was convicted of attempt to commit robbery in the
first degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-134
(a) (2), conspiracy to commit robbery in the first degree in violation of
General Statutes §§ 53a-48 and 53a-134 (a) (2), and attempt to commit assault
in the first degree in violation of General Statutes §§ 53a-49 (a) (2) and
§ 53a-59 (a) (5). No claim of error has been made on appeal with respect
to his conviction of those charges.
2
The amended information also charged the defendant with criminal pos-
session of a firearm in violation of General Statutes § 53a-217 (a) (1). The
defendant elected to try this final count to the court. The state entered a
nolle prosequi on this charge on July 21, 2016.
3
Davis pleaded guilty to his involvement in the incident in exchange for
a suspended sentence and probation. As part of the terms of his probation,
Davis agreed to continue to cooperate with the Hartford Police Department
and the state on this case and others.
4
The court dismissed count four of the amended information, conspiracy
to commit robbery in the first degree, in accordance with our constitutional
protections against double jeopardy. ‘‘The double jeopardy clause of the
fifth amendment to the United States constitution provides that no person
shall be subject for the same offense to be twice put in jeopardy of life or
limb. This clause prohibits not only multiple trials for the same offense but
also multiple punishment for the same offense.’’ (Internal quotation marks
omitted.) State v. Brown, 132 Conn. App. 251, 255, 31 A.3d 434 (2011), cert.
denied, 303 Conn. 922, 34 A.3d 396 (2012).