State v. Johnson

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STATE CONNECTICUT v. EFRAIN JOHNSON
(AC 37577)
Gruendel, Mullins and Sullivan, Js.*
Argued October 13, 2015—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Kavanewsky, J.)
Glenn W. Falk, assigned counsel, for the appellant
(defendant).
Susann E. Gill, supervisory assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Joseph T. Corradino, senior assistant state’s
attorney, and Peter D. Markle, assistant United States
attorney, for the appellee (state).
Opinion
SULLIVAN, J. The defendant, Efrain Johnson, appeals
from the judgment of conviction, rendered after a jury
trial, of one count of felony murder in violation of Gen-
eral Statutes § 53a-54c and one count of kidnapping in
the first degree in violation of General Statutes § 53a-
92 (a) (2) (A) for his participation in events that led to
the death of the victim, Tina Johnson.1 On appeal, the
defendant claims that (1) there was insufficient evi-
dence to sustain either of his convictions and (2) the
trial court improperly instructed the jury on the third
element of felony murder. We affirm the judgment of
the trial court.
By way of an amended information dated December
18, 2013, the state charged the defendant with six
offenses: as a principal in the felony murders of three
individuals, namely, the victim, James Reid, and Basil
Williams (counts one, two, and three, respectively), and
as a principal in the kidnapping in the first degree for
those same people (counts four, five, and six, respec-
tively).2 On the basis of the evidence presented at trial,
the jury reasonably could have found the following
facts. For most of the time relevant to this case, Azibo
Aquart3 headed a criminal organization selling crack
cocaine and marijuana in certain cities in southern Con-
necticut. As part of this operation, Azibo used certain
apartments at 215 Charles Street in Bridgeport, in par-
ticular using apartment 211 on the second floor to con-
duct transactions. Azibo considered the apartments his
‘‘turf’’ and had driven away competitors on prior
occasions.
Azibo’s enterprise involved a number of individuals in
a variety of tasks. Two such confederates were Azibo’s
brother, Azikiwe Aquart,4 and Rodney Womble. Other
individuals employed by Azibo included: Frankie
Hodges, who sold crack cocaine out of apartment 211
at 215 Charles Street; John Taylor, who sold marijuana
on Azibo’s behalf in Norwalk; Lashika Johnson, the
defendant’s sister, who sold crack cocaine and mari-
juana on behalf of Azibo and, later, Azikiwe, and who
was dating Azibo for much of the time relevant to this
case; and the defendant, who purchased marijuana from
Azibo both for personal use and to resell. A number
of the individuals working for Azibo’s drug enterprise
either began as customers or were otherwise users of
Azibo’s product themselves.
During much of August, 2005, the victim, Reid, and
Williams lived in apartment 101 at 215 Charles Street.
Both the victim and Reid used crack cocaine and regu-
larly purchased it from Azibo’s operation in apart-
ment 211.
In early August, 2005, the quality of the crack cocaine
that Azibo was selling in 215 Charles Street decreased
substantially. At about this time, the victim stopped
purchasing crack cocaine from Azibo’s operation on
the second floor and began selling crack cocaine out
of apartment 101. As a consequence, Azibo began losing
a number of customers.
Azibo was displeased by the victim’s actions and sub-
sequently attempted on at least two occasions to break
into apartment 101 with the assistance of various con-
federates. During one such instance, Hodges heard a
knock on the door of apartment 211 in the middle of the
night. Looking through the peephole, Hodges observed
Azibo, who was wearing black clothing, a black ban-
dana, and plastic gloves and motioning for Hodges to
join him in the hallway. Azibo whispered to Hodges to
go to the first floor and knock on the door to a specific
apartment. As Hodges and Azibo headed downstairs,
Hodges perceived that three people were in the second
floor laundry room; although he avoided looking at the
people’s faces, he could see that all of them also were
wearing plastic gloves. While Azibo hid in the stairwell,
Hodges knocked on the door to apartment 101, but
nobody came to the door. Relieved that no one had
answered, Hodges informed Azibo and returned to the
second floor while Azibo and the three other individuals
went downstairs.
Taylor also was present for two of the attempts to
enter the first floor apartment. In the first attempt,
Taylor received a phone call from Azibo. Taking the
train from Norwalk to Bridgeport, Taylor met up with
Azikiwe and Azibo; at Azibo’s direction, the group drove
to a Walgreens store, where Azibo purchased duct tape.
The three then drove to the diner near 215 Charles
Street. By the time they arrived at the diner, it was dark
outside. The group waited at the diner until Azibo got
a phone call, at which point they went out to the parking
lot. The defendant met the three men in the parking lot
of the diner. He brought two bats with him, giving one
to Azikiwe and retaining the other. The bats were the
first weapons that Taylor observed among the four men.
In the parking lot, Azibo told Taylor, Azikiwe, and the
defendant that there were people selling drugs out of
his building, ‘‘[h]e had a problem’’ with this, and the
group was going to go in and ‘‘confront them.’’ The four
men voluntarily put on masks and latex gloves provided
by Azikiwe,5 entered the building, and waited down the
hall while a young woman knocked on the door to
apartment 101. When no one answered, Azibo, Azikiwe,
and Taylor went upstairs, and the defendant left with
the bats.6
A second attempt involving Taylor to enter apartment
101 occurred a few days after the first attempt. During
the day on August 23, 2005, the defendant contacted
Azibo about getting more marijuana. Azibo brought the
marijuana over to the defendant and, giving the defen-
dant two additional bags, stated that he might need
a favor later. That evening, the defendant, with the
assistance of Lashika and others, promoted a party at
a Bridgeport club. Between approximately 1:30 to 2:30
a.m. on August 24, 2005, the group finished cleaning up
and went to a restaurant in Orange. While there, Lashika
received a phone call from Azibo, who asked to speak
with the defendant. The defendant did not look upset
after receiving this phone call. After finishing their meal,
Lashika and the defendant left the restaurant in separate
vehicles. Returning home, Lashika saw Azibo outside
her apartment, though she did not see the defendant;
after seeing Azibo, Lashika went to sleep.
Taylor also received a phone call from Azibo and
drove to Bridgeport that night, where he met up with
Azibo and Azikiwe. Azikiwe drove the group to the
parking lot underneath the apartments at 215 Charles
Street. Exiting the car, Taylor saw the defendant walk-
ing up to them. The defendant again brought two bats
with him, which were the first weapons that Taylor had
observed among the four men on this occasion as well,
and all of the men put on latex gloves and masks pro-
vided by Azikiwe. Taking care not to be seen, the group
went upstairs to apartment 101. During this period,
Taylor observed that both the defendant and Azikiwe
were armed with baseball bats, while Azibo had a gun.
Once there, one or more members of the group forced
open the door to apartment 101, and the four men
entered the apartment.
Inside the apartment, Azibo instructed Taylor to
stand by the living room window and to take a lookout
position. Azibo and Azikiwe then proceeded to use duct
tape to bind the victim and Reid in the first bedroom.
While duct taping these two individuals, Azibo’s gloves
ripped, and he replaced them; Azikiwe similarly
replaced his gloves while in the apartment. The defen-
dant likewise participated in binding the victim’s wrists
and ankles to some degree. While in the apartment,
Taylor also observed the defendant standing in the hall-
way by the bathroom near the first bedroom. Walking
between the window at which he was stationed and
the bedroom, Taylor saw both Azibo and Azikiwe strike
the victim and Reid in the head multiple times with the
baseball bats. At some point while the men were in the
apartment, Williams was bound and injuries similar to
those suffered by the victim and Reid were inflicted
upon him. Additionally, one of the four participants
inserted several screws into the doorjamb of the front
door from the inside before leaving through the win-
dow. Again, Taylor did not observe the defendant being
threatened by, or try to stop, Azibo and Azikiwe during
their time in apartment 101.
Eventually, the four left the apartment: Taylor and
Azikiwe in one vehicle, and the defendant and Azibo
in another. The defendant observed a black drill in a
bag that Azibo brought with him to the car after leaving
the apartment. The defendant, Azibo, and Azikiwe
reconvened at Lashika’s apartment, where the defen-
dant frequently stayed. Lashika was awakened by
voices in her living room, two of which she was able
to identify as the defendant and Azibo. Leaving her
bedroom, she discovered the defendant, Azibo, and
Azikiwe sitting in the living room. Azibo and Azikiwe
were wearing only undershirts, shorts, and socks. Azibo
asked Lashika to take the garbage bags and a black
electric drill belonging to Azibo to a dumpster down
the street. Lashika disposed of the bags as requested,
wearing plastic gloves to move the items. When she
returned, Azibo asked her to move his car and retrieve
clothing for him from his apartment, which she did.
Azibo, Azikiwe, and the defendant were all there when
she came back from this second errand.
Later that morning, the victim’s son, Leroy Whittin-
gham, attempted to call his mother multiple times, but
was unable to reach her. At or about 10 a.m., he walked
over to his mother’s apartment; getting no response
when he knocked on her front door, he walked around
the side of the building to the window of her bedroom.
Discovering the window open, Whittingham pushed the
blinds aside and saw the victim and Reid. Both parties
were bound in duct tape on the floor, and there was
blood on the floor and ceiling. Whittingham entered
the apartment and called 911 from his cell phone. An
ambulance and police were dispatched.
Karen O’Donnell, an emergency medical technician
for American Medical Response, and her partner,
Rosanna Mendoza, received the call at approximately
10:15 a.m. Driving toward the address to which they
were directed, O’Donnell saw a person waving them
down and pointing to the apartment building behind the
diner. O’Donnell and her partner entered the building;
while they were walking up the stairs toward the apart-
ment, Whittingham kicked open the front door. Dis-
covering the victim and Reid in the first bedroom and
Williams in the second bedroom, O’Donnell and her
partner quickly determined that all three residents
were deceased.
Investigators processed the apartment over the
course of three days. They discovered the screws that
had been affixed to the front door and door frame from
inside the apartment, which would have prevented the
door from being opened. Investigators also discovered
various items and removed them from the apartment
for further examination; these items included pieces of
latex and latex gloves, samples of blood-like sub-
stances, the duct tape used to bind the head, hands,
and feet of the three residents, and two plastic bags
stuck together with duct tape. Additionally, after remov-
ing the duct tape binding the victim’s wrists, investiga-
tors discovered a piece of latex attached to the inside
of the duct tape. No weapons were recovered from
the apartment.
The items collected were turned over to the state
forensic laboratory, and forensic testing determined
that many of the fingerprints that were discovered in
the apartment or on the items seized as evidence were
attributable to Azikiwe and Azibo. DNA was also
extracted from the various gloves, latex fragments, and
other items recovered from apartment 101, and was
submitted for further testing. This testing compared
DNA profiles developed from these recovered samples
to profiles of known samples taken from the involved
parties. The profiles developed for each sample were
then cross-referenced with a database, which allows
the technicians to determine the frequency with which
an individual within the three major population groups
of Connecticut (African-American, Caucasian, or His-
panic) would be expected to be a contributor. This
testing identified Azikiwe, Azibo, and the defendant as
contributors to the various samples, while none of the
three of them or Taylor could be eliminated as a contrib-
utor to other samples.7 Only the defendant was a con-
tributor to the sample of DNA taken from the latex
fragment recovered from the duct tape binding the vic-
tim’s wrists; each of the other known samples was elimi-
nated. The expected frequency of a person being a
contributor to that particular sample was one in seven
billion individuals from the three population groups.8
Frank Evangelista, associate medical examiner for
the state, conducted the autopsy of the victim in August,
2005. External and internal examinations revealed pro-
found and substantial injuries to the victim’s wrist, face,
skull, and brain.9 These injuries, both external and inter-
nal, were consistent with blunt force trauma and would
have required multiple blows. Consequently, Evange-
lista concluded that the victim’s death had been caused
by blunt head trauma inflicted by another party. The
autopsies of Reid and Williams revealed that they had
suffered similar injuries, which caused their deaths.
A few days after August 24, 2005, the defendant went
to a music concert with Lashika, Azibo, and Azikiwe,
and when the defendant’s sister drove him to Philadel-
phia a few weeks later, Azikiwe joined them. Although
the defendant did not know that Azikiwe would be
joining them on the trip to Philadelphia, he did not
voice any reluctance about Azikiwe joining them. When
Lashika eventually inquired about what happened at
215 Charles Street, the defendant responded that he
had not hurt or killed anyone, though he had ‘‘roughed
somebody up,’’ that he had helped tie up someone, and
that the group had gotten rid of the bats they had with
them in the apartment.
On March 6, 2007, the defendant was interviewed by
Christopher Munger, a special agent with the Federal
Bureau of Investigation (FBI), at its Bridgeport office.
When asked about his involvement in the events at 215
Charles Street, the defendant changed his story multiple
times. He first claimed that he had not been there for
seven to nine years. When told that his DNA had been
recovered from apartment 101, the defendant asked if
he could ‘‘start over.’’ In his second version of events,
the defendant told the agent that he had been asked
by Azibo on August 23, 2005, to go up to the door and
pretend to be interested in buying crack cocaine, that
he got into a verbal altercation with the woman who
opened the door, that during this incident, he spit in her
face, she slammed the door, and that he left afterward.
When told that the DNA had been recovered from the
latex glove fragment in the duct tape bindings, the
defendant asked to start over again. This time, the
defendant provided an account of his involvement that
placed him in the apartment binding the victim’s wrists
and feet with duct tape on the day that she was killed.
Over the course of the investigation, cell phones were
seized from the defendant and Azikiwe, and investigat-
ing detectives became aware of a phone number that
ultimately was attributed to Azibo. Information was
obtained both from these cell phones, and from records
of the associated service providers for these phones
and numbers associated with Womble, Taylor, the vic-
tim, and Lashika. Analyzing this information, agents
with the FBI were able to identify a number of calls
during the days leading up to the murders between the
phones associated with Azibo, Azikiwe, the defendant,
and Taylor. In particular, this information showed that:
the phone seized from the defendant had been in con-
tact with the phone associated with Azibo seven times
on August 24, 2005, the first time being at 1:47 a.m. and
the last at 5:50 a.m.; the last phone to call the phone
associated with Azibo was the phone associated with
Taylor; there was no contact between the phone associ-
ated with Azibo and any other phone between 5:04 and
5:43 a.m.; and the first number that the phone associated
with Azibo called after 5:43 a.m. on August 24, 2005,
was the phone associated with the defendant.
Following a jury trial, the defendant was found guilty
of felony murder and kidnapping involving the victim;
the jury also found the defendant not guilty as to all
other charges and lesser included offenses. The trial
court, Kavanewsky, J., sentenced the defendant to a
total effective term of fifty years imprisonment. This
appeal followed.10 Additional facts will be discussed
as necessary.
I
First, the defendant claims that the evidence did not
support his convictions for felony murder or kidnapping
in the first degree, arguing that there was insufficient
evidence to show that he possessed the requisite intent
to commit an assault or kidnapping, respectively. We
disagree.
‘‘The standard of review we apply to a claim of insuffi-
cient evidence is well established. In reviewing the suffi-
ciency of the evidence to support a criminal conviction
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 [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Crespo, 317 Conn. 1, 16, 115
A.3d 447 (2015). ‘‘On appeal, 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 reasonable view of the evi-
dence that supports the [finder of fact’s] verdict of
guilty.’’ (Internal quotation marks omitted.) Id., 17.
Both of the defendant’s sufficiency claims go to
whether he had the requisite specific intent to commit
the crimes for which he was convicted. Pursuant to
General Statutes § 53a-3 (11), ‘‘[a] person acts ‘inten-
tionally’ with respect to a result or to conduct described
by a statute defining an offense when his conscious
objective is to cause such result or to engage in such
conduct . . . .’’ ‘‘Intent is generally proven by circum-
stantial evidence because direct evidence of the
accused’s state of mind is rarely available. . . . There-
fore, intent is often inferred from conduct . . . and
from the cumulative effect of the circumstantial evi-
dence and the rational inferences drawn therefrom.
. . . Intent is a question of fact, the determination of
which should stand unless the conclusion drawn by the
trier is an unreasonable one.’’ (Citation omitted; internal
quotation marks omitted.) State v. Booth, 250 Conn.
611, 656, 737 A.2d 404 (1999), cert. denied sub nom.
Brown v. Connecticut, 529 U.S. 1060, 120 S. Ct. 1568,
146 L. Ed. 2d 471 (2000). ‘‘[I]ntent may be inferred from
the events leading up to, and immediately following,
the conduct in question . . . the accused’s physical
acts and the general surrounding circumstances. . . .
An accused’s own words . . . constitute particularly
compelling, direct evidence of his intent.’’ (Citations
omitted.) State v. Winot, 294 Conn. 753, 768, 988 A.2d
188 (2010). We will examine in turn the evidence regard-
ing each of the defendant’s convictions.
A
The defendant first argues that there was insufficient
evidence that he entered the victim’s apartment with
the intent to commit an assault therein, which was
required to sustain his conviction of the felony murder
charge. We disagree.
In count one of the amended information, the state
charged the defendant with felony murder for the vic-
tim’s death in the course of and in furtherance of a
burglary in the third degree, specifically, a burglary
in which the defendant and his associates unlawfully
entered apartment 101 with the intent to commit an
assault in the third degree.
Section 53a-54c provides in relevant part: ‘‘A person
is guilty of murder when, acting either alone or with
one or more persons, such person commits or attempts
to commit . . . burglary . . . and, in the course of and
in furtherance of such crime or of flight therefrom, such
person, or another participant, if any, causes the death
of a person other than one of the participants . . . .’’11
‘‘There is no requirement under the felony murder stat-
ute, nor was there such a requirement under common
law felony murder, that the state prove that the respon-
dent had the general intent to commit the murders.
. . . The state must simply prove all the elements of
the underlying felony and then prove that the deaths
were in the course of and in the furtherance of that
felony, or that the deaths were caused in flight from
the commission of the felony.’’ (Citation omitted.) In re
Michael B., 36 Conn. App. 364, 372, 650 A.2d 1251 (1994).
General Statutes § 53a-103 (a) provides in relevant
part: ‘‘A person is guilty of burglary in the third degree
when he enters . . . unlawfully in a building with
intent to commit a crime therein.’’ Finally, General Stat-
utes § 53a-61 (a) provides in relevant part: ‘‘A person
is guilty of assault in the third degree when . . . [w]ith
intent to cause physical injury12 to another person, he
causes such injury to such person or to a third person
. . . .’’ (Footnote added.)
When appraising whether a party had the requisite
intent to commit burglary, the jury could consider
whether ‘‘[t]he time, manner and forcible nature of the
entry permitted a reasonable inference, based on
human experience, that the unlawful entry by the defen-
dant was hardly without purpose, but rather was with
the intent to commit a crime therein.’’ (Internal quota-
tion marks omitted.) State v. Drake, 19 Conn. App. 396,
400, 562 A.2d 1130 (1989), quoting State v. Little, 194
Conn. 665, 675, 485 A.2d 913 (1984). Similarly, with
respect to whether an accused intended to commit an
assault, ‘‘[i]ntent may be gleaned from circumstantial
evidence such as the type of weapon used, the manner
in which it was used, the type of wound inflicted and
the events leading up to and immediately following the
incident.’’ (Internal quotation marks omitted.) State v.
Ramirez, 107 Conn. App. 51, 64, 943 A.2d 1138 (2008),
aff’d, 292 Conn. 586, 973 A.2d 1251 (2009).
The evidence produced at trial demonstrated that
Azibo previously had run out competitors to his drug
operation in the apartments at 215 Charles Street and
that he sought to protect his drug operation from the
increased competition by the victim at the time when his
product was suffering. The defendant brought baseball
bats to a meeting among Azibo, Azikiwe, Taylor, and
the defendant, at which Azibo articulated his issues
with the victim’s selling drugs in his building and his
intention ‘‘to confront’’ the victim. Importantly, all four
participants were involved in Azibo’s drug operation.
Subsequently, the defendant was involved in at least
two attempts to enter the apartment on the first floor.
Each of these attempts occurred late at night, and the
group took efforts to evade detection or identification,
including the use of masks and latex gloves and hiding
from another resident of 215 Charles Street. During the
first attempt in which both Taylor and the defendant
participated, the group left when it became apparent
that no one was going to answer the door.
Further, although the defendant contended that he
had not seen a weapon prior to entering apartment 101,
the jury heard testimony that the defendant brought
baseball bats to, and was armed with, one of these bats
during at least two attempts to enter apartment 101,
including the attempt that ultimately resulted in the
deaths of the victim, Reid, and Williams. The jury also
heard testimony that the group entered apartment 101
on August 24, 2005, only after Azibo kicked down the
door. The jury reasonably could have relied on this
evidence of a violent entry in determining that the entry
into the apartment was for the purpose of an assault.
See State v. Ramirez, supra, 107 Conn. App. 64; State
v. Drake, supra, 19 Conn. App. 400; see also State v.
DeMarco, 311 Conn. 510, 519–20, 88 A.3d 491 (2014)
(‘‘[i]t is the exclusive province of the trier of fact to
weigh conflicting testimony and make determinations
of credibility, crediting some, all or none of any given
witness’ testimony’’ [internal quotation marks omit-
ted]); State v. Meehan, 260 Conn. 372, 381, 796 A.2d
1191 (2002) (‘‘[i]t is axiomatic that evidentiary inconsis-
tencies are for the jury to resolve’’).13
The evidence further demonstrated that Azibo and
Azikiwe proceeded to bind the residents of the apart-
ment, with some assistance from the defendant, imme-
diately after entering the apartment, and that they used
the baseball bats to strike both the victim and Reid in
the head. During this period, both the defendant and
Taylor served as lookouts, with the defendant posi-
tioned outside the bedrooms in the hall.
Further, Taylor testified that he did not observe any
of the four participants threatened or ordered to partici-
pate during either attempt, and that no one in the group
tried to stop the beatings in the apartment. Lashika also
testified that although she had never received a call
from Azibo when he was trying to reach the defendant
prior to August 24, 2005, the defendant did not look
upset after getting such a call at the restaurant. She
also stated that, when she inquired after the fact about
what had occurred at 215 Charles Street, the defendant
admitted that ‘‘he roughed somebody up’’ during the
incident. Although he testified that he was merely pre-
sent on the night that the murders occurred and that
he participated only out of fear for his own safety, the
defendant also agreed with the prosecutor that he knew
that ‘‘trouble was coming’’ for the residents of apart-
ment 101 and that, based on the size of the group and the
dark clothing that they were wearing, that ‘‘[s]omething
that ain’t right’’ was about to occur.
Taken as a whole, the evidence demonstrates that:
the defendant brought baseball bats to a meeting after
dark near the 215 Charles Street apartments; at this
meeting, Azibo explained to the defendant and the oth-
ers in attendance that he intended ‘‘to confront’’ the
victim for selling in his building; subsequent to learning
this, the defendant knowingly participated in two
attempts to enter apartment 101; during each attempt,
the participants took considerable pains to avoid identi-
fication or interference prior to entry into the apart-
ment; and, during the second attempt to enter the
apartment, the baseball bats that the defendant brought
were used to beat the victim and Reid after the defen-
dant assisted Azibo and Azikiwe in binding the victim’s
wrists and while the defendant stood as a lookout in
the hallway.
In support of his contention that there was insuffi-
cient evidence to demonstrate that he had the necessary
intent, the defendant notes that there is no evidence
that he knew, or had any particular vendetta against, the
residents or that he personally committed any assaults
directly on their person, which he argues weighs against
a finding that he had a specific intent to commit an
assault in the apartment. Neither proof of motive14 nor
the actual commission of the intended crime on which
a burglary conviction could be based15 is required, how-
ever, to find that the defendant had the specific intent
to commit an assault at the time of his unlawful entry.
The defendant further contends that merely bringing
the baseball bats to apartment 101 does not prove his
intent to commit an assault therein and that any reckless
or negligent state of mind that could be proved is insuffi-
cient for the defendant to be liable for the crime alleged
in the information. In support of these arguments, the
defendant relies on two cases, State v. Crosswell, 223
Conn. 243, 612 A.2d 1174 (1992), and Warwick v. United
States, 528 A.2d 438 (D.C. 1987). Both of these cases
are distinguishable from the facts before the court, as
the evidence in each case demonstrated that, although
the defendant or one of his associates was armed at
the time of the illegal entry into the residence, the pur-
pose of the invasion was to deprive the residents of
property. Thus, the assault that occurred after the entry
into the residence with the weapon meant to facilitate
that purpose was not enough to show that the assault
was intended or planned prior to the time of entry. See
State v. Crosswell, supra, 263–64; Warwick v. United
States, supra, 442. In the present case, however, the
clear weight of the evidence suggests that the purpose
of the entry into apartment 101 was the assault itself,
rather than a larceny or robbery in which one or more
participants merely were willing to use force if required.
‘‘[W]hen a jury evaluates evidence of a defendant’s
intent, it properly rel[ies] on its common sense, experi-
ence and knowledge of human nature in drawing infer-
ences and reaching conclusions of fact.’’ (Internal
quotation marks omitted.) State v. Winot, supra, 294
Conn. 768; see also State v. Washington, 155 Conn. App.
582, 589, 110 A.3d 493 (2015) (‘‘[t]he juror must use all
his [or her] experience, his [or her] knowledge of human
nature, his [or her] knowledge of human events, past
and present, his [or her] knowledge of the motives
which influence and control human action, and test the
evidence in the case according to such knowledge and
render his [or her] verdict accordingly’’ [internal quota-
tion marks omitted]). In determining whether sufficient
evidence existed that an accused party had the requisite
intent for the crime of which he or she was convicted,
we look to the totality of the evidence and all reasonable
inferences that can be drawn from it. See State v. Best,
56 Conn. App. 742, 753–59, 745 A.2d 223, cert. denied,
253 Conn. 902, 753 A.2d 937 (2000); see also State v.
Booth, supra, 250 Conn. 654–58.
Consequently, the jury reasonably could have deter-
mined that the defendant, by bringing baseball bats and
participating in the attempts to enter apartment 101
with the knowledge that the plan to enter apartment
101 involved some degree of physical harm to the resi-
dents, and in light of the time and manner of entry
and the relationship between the participants, shared
Azibo’s intent to inflict physical injury on the victim.
See State v. Ortiz, 312 Conn. 551, 565, 93 A.3d 1128
(2014) (‘‘it is a permissible, albeit not a necessary or
mandatory, inference that a defendant intended the nat-
ural consequences of his voluntary conduct’’ [emphasis
omitted; internal quotation marks omitted]). Even
assuming arguendo that evidence in the record could
support that the defendant intended something other
than an assault, it was the jury’s responsibility to deter-
mine which of these alternative and supported explana-
tions was the most likely. See State v. Booth, supra,
250 Conn. 655. We, therefore, conclude that there was
sufficient evidence on which the jury could have found
the defendant guilty of the felony murder of the victim.
B
The defendant also claims that there was insufficient
evidence to support his conviction for kidnapping in
the first degree because there was insufficient evidence
that he intended to inflict physical injury on the victim.
We disagree.
‘‘A person is guilty of kidnapping in the first degree,
pursuant to General Statutes § 53a-92 (a) (2) (A), if he
abducts another person and . . . restrains the person
abducted with intent to . . . inflict physical injury
upon him . . . . General Statutes § 53a-91 (2) defines
abduct as restrain[ing] a person with intent to prevent
his liberation by either (A) secreting or holding him in
a place where he is not likely to be found, or (B) using
or threatening to use physical force or intimidation.
The term restrain is also defined in § 53a-91 (1) as
restrict[ing] a person’s movements intentionally and
unlawfully in such a manner as to interfere substantially
with his liberty by moving him from one place to
another, or by confining him either in the place where
the restriction commences or in a place to which he
has been moved, without consent.’’ (Internal quotation
marks omitted.) State v. Wilcox, 254 Conn. 441, 464–65,
758 A.2d 824 (2000).
In support of his claim that there was insufficient
evidence that he intended to inflict injury on the victim,
the defendant relies on his assertion that there was no
evidence that he ever inflicted any physical injury on
the victim. Even if we were to accept that there was
no such evidence,16 we would reject this reliance. Not
only does the statute merely require the intent to inflict
physical injury, not the consummation of that intent;
see General Statutes § 53a-92 (a) (2) (A); the jury was
charged by the court that the defendant could be found
liable either as a principal or as an accessory.17 Given
the defendant’s knowledge and actions prior to entering
the apartment and the violent manner in which that
entry was effected, the jury reasonably could have
inferred that his actions in binding the victim’s wrists
and standing in the hallway as a lookout were for the
purpose of aiding Azibo and Azikiwe, who were both
armed with baseball bats that the defendant had
brought to the apartment, in inflicting injury to the
victim.
Further, as we previously articulated in part I A of
this opinion, on the basis of the evidence submitted at
trial, the jury reasonably could have found that the
defendant possessed the specific intent to inflict physi-
cal injury on the victim when he and his cohorts entered
the apartment carrying baseball bats. Once inside the
apartment, the defendant was given duct tape and par-
ticipated, at least briefly, in using that duct tape to bind
the victim’s wrists and ankles. At some point after both
the victim and Reid were bound, Azibo and Azikiwe,
armed with the baseball bats that the defendant had
brought to the apartment, used those bats to strike the
victim and Reid while the defendant was standing in
the hallway between the two bedrooms acting as a
lookout. The defendant did not try to stop these
beatings.
Thus, because we already have determined in part I
A of this opinion that the jury was permitted, although
not required, to infer that ‘‘[the] defendant intended
the natural consequences of his voluntary conduct’’;
(emphasis omitted; internal quotation marks omitted)
State v. Ortiz, supra, 312 Conn. 565; we agree with the
state that the jury reasonably could have found that the
defendant possessed the same intent as his cohorts
and, accordingly, conclude that there was sufficient
evidence supporting the defendant’s conviction for kid-
napping in the first degree.
II
The defendant also claims that the trial court commit-
ted a number of errors in its jury instructions concern-
ing the third element of felony murder. Under the
relevant portion of § 53a-54c, a defendant is liable only
for a death caused ‘‘in the course of and in furtherance
of [the predicate crime] or of flight therefrom . . . .’’
We disagree with each of the defendant’s claims of error
with respect to the trial court’s instructions on this
element and consider each one separately.
A
Instructions that Death Must Occur
‘‘in the Course of’’ the Burglary
The defendant asserts that the court improperly
instructed the jury with respect to the requirement that
the death must occur ‘‘in the course of’’ the burglary
in two respects. The defendant argues that the trial
court, by adding certain language in its charge, (1)
improperly expanded the scope of felony murder and
(2) took a disputed issue away from the jury.
1
Preservation
The state argues that neither of these claims was
preserved because the defendant’s request to charge
and exceptions at trial were inadequate to alert the trial
court to the errors. The state further argues that this
court should not consider these unpreserved claims
because the defendant either induced these errors or
has waived them pursuant to State v. Kitchens, 299
Conn. 447, 10 A.3d 942 (2011).18 The defendant responds
that these claims were preserved at trial and, to the
extent that the claims were not preserved, review is
appropriate under State v. Golding, 213 Conn. 233, 567
A.2d 823 (1989); see also In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015) (modifying Golding’s third
condition). We agree with the defendant that his claims
were preserved.
The following additional facts are relevant to our
consideration of these issues. On December 17, 2013,
defense counsel submitted proposed jury instructions
in court, which included an extensive charge on each
element of felony murder. With respect to the third
element, the defendant’s proposed instructions pro-
vided in relevant part: ‘‘The third element of felony
[murder] is that the defendant or another participant
caused the death of Tina Johnson (as to Count One)
James Reid (as to Count Two) and Basil Williams (as
to Count Three) while in the course of, and in further-
ance of, the commission or attempted commission of
the crime of burglary in the third degree, or, in the
immediate flight from the crime. This means that as to
each count, the death occurred during the commission
of the burglary and in the course of carrying out its
objective.
‘‘ ‘In the course of the commission’ of the burglary
means during any part of the defendant’s participation
in the burglary. The phrase ‘in the course of the commis-
sion’ is a time limitation and means conduct occurring
immediately before the commission, during the com-
mission or in the immediate flight after the commission
of the burglary. Thus, the respective deaths of Tina
Johnson, James Reid, and Basil Williams must have
occurred somewhere within the time span of the occur-
rence of the facts which constitute the charged
burglary.’’
On December 18, 2013, the court stated on the record
that it had e-mailed portions of its proposed charge to
counsel the prior evening and that full copies of the
charge were being printed for counsel to review.19 At
about noon, the court indicated that it would dismiss
the jury until 2 p.m. and that, during this break, it would
meet with counsel to discuss the full charge and provide
copies to them. Subsequently, the parties met in cham-
bers, where defense counsel attempted to articulate
certain objections to the court’s charge, and the trial
court indicated that it would hear these objections on
the record during the charge conference.20
When court reconvened later that afternoon, the
court stated that it had e-mailed much of its proposed
charge to counsel on December 17, 2013, that counsel
had been given a full copy of the charge during the
lunch recess, and that the court would make a few
changes to its instructions. It then reviewed its pro-
posed instructions with counsel and sought comments
from counsel. In response to defense counsel’s con-
tention that she had only a few objections, the court
noted that any objections covered by the defendant’s
written request to charge did not have to be restated.
Consequently, defense counsel expressed concern only
with the court’s intention to give instructions on con-
sciousness of guilt, which the court withdrew after clos-
ing arguments.
On December 19, 2013, the court indicated on the
record that it had made some changes to its felony
murder charge suggested by defense counsel; the court,
however, did not articulate those changes.21 It then
charged the jury. During its charge on felony murder,
the court recited the statutory language of § 53a-54c
and charged the jury on each of the elements of fel-
ony murder.22
Following its charge, the court inquired whether
either party had any exceptions. The prosecutor had
none. Defense counsel, however, took exception to sev-
eral aspects of the charge. She excepted to the court’s
charge on accomplice testimony. Defense counsel also
excepted to the charge concerning the third element
of felony murder, noting that it had included proposed
language on both the ‘‘in the course of’’ and ‘‘in further-
ance of’’ aspects, and that the court improperly had
added the language ‘‘in the course of carrying out its
objective’’ to its instructions defining the former
aspect.23
Immediately following this exception and as defense
counsel was about to articulate her exception to the
instructions on the affirmative defense to felony mur-
der, the trial court indicated that it considered pre-
served any requested instruction contained within the
defendant’s submitted request to charge that had not
been given as proposed, regardless of whether the devi-
ation concerned the omission of, or an addition to, the
instruction as proposed.24 In light of these statements
by the court, defense counsel briefly excepted to the
court’s instructions on the statutory defense to felony
murder, duress, and kidnapping; the court then over-
ruled the defendant’s exceptions.
Pursuant to Practice Book § 42-16, ‘‘[a]n appellate
court shall not be bound to consider error as to the
giving of, or the failure to give, an instruction unless
the matter is covered by a written request to charge
or exception has been taken by the party appealing
immediately after the charge is delivered. Counsel tak-
ing the exception shall state distinctly the matter
objected to and the ground of exception. . . .’’ Thus,
‘‘a party may preserve for appeal a claim that an instruc-
tion, which was proper to give, was nonetheless defec-
tive either by: (1) submitting a written request to charge
covering the matter; or (2) taking an exception to the
charge as given. . . . Moreover, the submission of a
request to charge covering the matter at issue preserves
a claim that the trial court improperly failed to give an
instruction on that matter.’’ (Citations omitted.) State
v. Ramos, 261 Conn. 156, 170, 801 A.2d 788 (2002),
overruled in part on other grounds by State v. Elson,
311 Conn. 726, 754, 91 A.3d 862 (2014).
Under either method, some degree of specificity is
required, as a general request to charge or exception
will not preserve specific claims. See State v. Ramos,
supra, 261 Conn. 170–71 (‘‘[i]t does not follow, however,
that a request to charge addressed to the subject matter
generally, but which omits an instruction on a specific
component, preserves a claim that the trial court’s
instruction regarding that component was defective’’
[emphasis in original]); State v. Lee, 138 Conn. App.
420, 453 n.19, 52 A.3d 736 (2012) (‘‘[i]n order to preserve
an objection to a proposed jury instruction, the defen-
dant must plainly put the trial court on notice as to
the specific basis for his objection’’ [internal quotation
marks omitted]). Thus, a claim concerning an improp-
erly delivered jury instruction will not be preserved for
appellate review by a request to charge that does not
address the specific component at issue; see, e.g., State
v. Ramos, supra, 169–71 (proposed jury instructions
on self-defense did not include charge on provocation
exception); or by an exception that fails to articulate
the basis relied upon on appeal with specificity. See
State v. Payne, 121 Conn. App. 308, 318, 996 A.2d 302
(neither precharge objection nor postcharge exception
included ground for objection), cert. denied, 297 Conn.
919, 996 A.2d 1193 (2010); see also State v. Lee, supra,
453 (defense counsel voiced concern about definition
of conspiracy but not about instruction on intent ele-
ment of conspiracy). Where the defendant has submit-
ted a request to charge with proposed instructions on
the issue, however, our Supreme Court ‘‘never ha[s]
required . . . [the] defendant . . . also to take an
exception to a contrary charge, and such a requirement
would contravene the plain language of [Practice Book
§ 42-16].’’ State v. Paige, 304 Conn. 426, 443, 40 A.3d
279 (2012); see also State v. Johnson, 316 Conn. 45,
55–56, 111 A.3d 436 (2015) (claim preserved by request
to charge where court gave requested charge, but selec-
tively omitted certain passages);25 State v. Ross, 269
Conn. 213, 337–38, 849 A.2d 648 (2004) (instructional
claim that trial court used different word than statutory
requirements preserved where defendant did not take
exception, but had ‘‘file[d] a specific request to charge
on the issue’’).
In the present case, the defendant filed a request to
charge, which included proposed instructions on each
element of felony murder. In it, the defendant included
the phrase ‘‘in the course of carrying out its objective,’’
but only at the beginning of the charge, where the
phrase primarily serves as a gloss on the ‘‘in furtherance
of’’ requirement.26 Consequently, the court added the
proposed language in its charge in the place requested,
but also included similar language elsewhere in the
charge and added unrequested language concerning the
specific ‘‘objective’’ of the burglary. Given that the
defendant filed a request to charge and the trial court’s
charge deviated as to a specific component from these
proposed instructions, the defendant’s request to
charge has preserved these issues for appeal.27
As we consider these claims preserved, we do not
reach the defendant’s or the state’s claims concerning
whether this court should address these claims if they
were unpreserved. With respect to the state’s arguments
that the defendant induced the error of which he now
complains, we briefly note that in addressing whether
a defendant’s claims of instructional error should not
be reviewed pursuant to State v. Golding, supra, 213
Conn. 233, because they were induced, our Supreme
Court has distinguished cases where the language to
which the defendant objects is precisely that which
the defendant requested from situations where the trial
court has modified the language requested. See State v.
Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004), discussing
State v. Whipper, 258 Conn. 229, 780 A.2d 53 (2001),
overruled in part by State v. Cruz, 269 Conn. 97, 106,
848 A.2d 445 (2004), and in part on other grounds by
State v. Grant, 286 Conn. 499, 535, 944 A.2d 947, cert.
denied, 555 U.S. 916, 129 S. Ct. 271, 172 L. Ed. 2d 200
(2008).
In the present case, the language ‘‘in the course of
carrying out its objective’’ can be found in the defen-
dant’s request to charge, where it was used primarily
to clarify the ‘‘in furtherance of’’ prong of the third
element; neither the phrase nor the language concern-
ing the precise ‘‘objective’’ of the burglary, however,
appears in this section of the defendant’s request to
charge. The record also suggests that the court made
changes to the felony murder charge, but it did not
explain the extent of those changes, and the partial
and complete charges that the court distributed to the
parties prior to this statement have not been provided
to this court. Therefore, this case is more analogous to
Whipper than to Cruz, and we conclude that the errors
from which the defendant appeals generally were not
induced in his request to charge.28
2
Merits
We turn to the substance of the defendant’s two
claims of error with respect to the trial court’s charge
on the ‘‘in the course of’’ prong. With respect to the
defendant’s first claim of error, the defendant contends
that the court erred by including the phrase ‘‘and in the
course of carrying out its objective’’ when defining how
this prong could be met. With respect to the second
claim of error, he argues that the court’s unequivocal
statement that ‘‘the objective [of the burglary] was an
assault’’ took away a disputed factual issue from the
jury’s consideration.
‘‘Our analysis begins with a well established standard
of review. When reviewing the challenged jury instruc-
tion . . . we must adhere to the well settled rule that
a charge to the jury is to be considered in its entirety,
read as a whole, and judged by its total effect rather
than by its individual component parts. . . . [T]he test
of a court’s charge is not whether it is as accurate upon
legal principles as the opinions of a court of last resort
but whether it 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. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper. . . .
‘‘It is . . . constitutionally axiomatic that the jury be
instructed on the essential elements of a crime charged.
. . . The due process clause of the fourteenth amend-
ment protects an accused against conviction except
upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged. . . . Consequently, the failure to instruct a
jury on an element of a crime deprives a defendant of
the right to have the jury told what crimes he is actually
being tried for and what the essential elements of those
crimes are. . . .
‘‘[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 possi-
ble that the instruction misled the jury. . . . The test
is whether the charge as a whole presents the case to
the jury so that no injustice will result. . . . We will
reverse a conviction only if, in the context of the whole,
there is a reasonable possibility that the jury was misled
in reaching its verdict. . . . A jury instruction is consti-
tutionally adequate if it provides the jurors with a clear
understanding of the elements of the crime charged, and
affords them proper guidance for their determination of
whether those elements were present. . . . An instruc-
tion that fails to satisfy these requirements would vio-
late the defendant’s right to due process of law as
guaranteed by the fourteenth amendment to the United
States constitution and article first, § 8, of the Connecti-
cut constitution. . . . The test of a charge is whether
it is correct in law, adapted to the issues and sufficient
for the guidance of the jury. . . . The primary purpose
of the charge is to assist the jury in applying the law
correctly to the facts which they might find to be estab-
lished. . . . The purpose of a charge is to call the atten-
tion of the members of the jury, unfamiliar with legal
distinctions, to whatever is necessary and proper to
guide them to a right decision in a particular case.’’
(Citations omitted; internal quotation marks omitted.)
State v. Griggs, 288 Conn. 116, 124–26, 951 A.2d 531
(2008).
The defendant’s first claim is that, by adding the
phrase ‘‘in the course of carrying out its objective’’ to
its instructions on the ‘‘in the course of’’ prong, the trial
court improperly enlarged the scope of felony murder.
Because ‘‘[i]t is axiomatic that the state is required to
prove all the essential elements of the crimes charged
beyond a reasonable doubt in order to obtain a convic-
tion . . . [a] jury instruction that effectively relieves
the state of its burden to prove an essential element of
the crime charged implicates the defendant’s right to
due process.’’ (Citations omitted; internal quotation
marks omitted.) State v. Jacobson, 87 Conn. App. 440,
463, 866 A.2d 678 (2005), aff’d, 283 Conn. 618, 930 A.2d
628 (2007).
In the present case, the trial court provided the fol-
lowing instructions on the requirement that the death
must occur ‘‘in the course of’’ the underlying felony:
‘‘Now, in the course of the commission of the burglary
means during any part of the defendant’s participation
in the burglary. The phrase, in the course of the commis-
sion, is a time limitation and means conduct occurring
immediately before the commission or during the com-
mission of the burglary and in the course of carrying
out its objective.
‘‘Thus, the death of the decedent named in each count
must have occurred somewhere within the time span
of the occurrence of the facts which constitute the
burglary and in the course of carrying out its objective.
‘‘Also, the immediate murder of a person to eliminate
a witness to a crime or to avoid detection is also in the
course of the commission. In this regard, if you find
one or more persons—or one or more of the decedents,
I should say—was killed simply to eliminate him as a
witness to the crime or to avoid detection, that killing
is also in the course of the commission of the underly-
ing felony.’’
The defendant argues that the burglary was complete
at the point that he and the other men entered apartment
101. Therefore, as there was testimony at trial that the
residents were still alive at the time the defendant left
the building, the addition of the language by the trial
court, the defendant contends, improperly expanded
the time frame under which the jury could find that
the death occurred ‘‘in the course of’’ the burglary.29
We disagree.
‘‘Felony murder occurs when, in the course of and
in furtherance of another crime, one of the participants
in that crime causes the death of a person who is not
a participant in the crime. . . . The two phrases, in the
course of and in furtherance of, limit the applicability
of the statute with respect to time and causation.’’
(Internal quotation marks omitted.) State v. Montgom-
ery, 254 Conn. 694, 733, 759 A.2d 995 (2000). ‘‘The phrase
in the course of focuses on the temporal relationship
between the murder and the underlying felony. . . .
We previously have defined the phrase in the course
of for purposes of § 53a-54c to include the period imme-
diately before or after the actual commission of the
crime . . . .’’ (Citation omitted; internal quotation
marks omitted.) Id., 734.
Our Supreme Court previously has held that a jury
instruction phrasing these two requirements in the dis-
junctive was in error because the statute requires that
both prongs be met for this element to be satisfied.
State v. Scognamiglio, 202 Conn. 18, 26, 519 A.2d 607
(1987).30 Thus, an instruction that would allow the jury
to find this element met by evidence that satisfies only
one prong would be in error. See id.; see also State v.
Young, 191 Conn. 636, 641 n.5, 469 A.2d 1189 (1983).
We agree with the defendant that the primary purpose
of the language as used in our model instructions seems
to be as a gloss on the ‘‘in furtherance of’’ prong of
this element.31 This does not mean, however, that the
language ‘‘in the course of carrying out its objective’’
refers solely to the causality requirement of this element
and not also to its temporal requirement. Indeed, we
have relied on precisely this language in finding that a
challenged instruction sufficiently instructed the jury
as to the ‘‘in the course of’’ prong of this element. See
State v. Cooke, 89 Conn. App. 530, 541–42, 874 A.2d 805
(instructions adequately instructed jury on temporal
requirements when ‘‘the court explained that the death
must have been caused during the commission of the
robbery and in the course of carrying out its objective’’
and explicitly stated that ‘‘the death must have occurred
during the actual commission of robbery in the first
degree’’ [emphasis added; internal quotation marks
omitted]), cert. denied, 275 Conn. 911, 882 A.2d 677
(2005).
In the present case, the ‘‘in the course of carrying
out its objective’’ language in the trial court’s instruc-
tions on the ‘‘in the course of’’ prong was surrounded
by language that focused upon the temporal require-
ments of this prong. In particular, the court instructed
that ‘‘[t]he phrase, in the course of the commission, is
a time limitation and means conduct occurring immedi-
ately before the commission or during the commission
of the burglary . . . .’’ It also stated that the death
‘‘must have occurred somewhere within the time span
of the occurrence of the facts which constitute the
burglary . . . .’’
Further, under the facts of this case, there is not a
reasonable possibility that any error in including this
language could have misled the jury for two additional
reasons. First, the phrase that the court used is
expressed in the conjunctive rather than the disjunctive;
therefore, under the defendant’s theory that ‘‘in the
course of carrying out its objective’’ requires proof com-
parable to ‘‘in furtherance of’’ prong, the state would
be required to prove both the ‘‘in the course of’’ and
the ‘‘in furtherance of’’ prong to prove the ‘‘in the course
of’’ prong. Thus, the inclusion of this language does not
mandate reversal, either in that its inclusion would have
no effect on the outcome because proof of meeting, or
failing to meet, this prong similarly would meet or fail to
meet the ‘‘in furtherance of’’ prong, or, in the alternative,
because it benefits the defendant by imposing a heavier
burden on the state than is required. See, e.g., State v.
Gradzik, 193 Conn. 35, 39, 475 A.2d 269 (1984) (instruc-
tional errors that benefit defendant not grounds for
reversal); State v. Cochran, 191 Conn. 180, 187–88, 463
A.2d 618 (1983) (same).
Second, although liability for a burglary premised on
an unlawful entry attaches upon a defendant crossing
the threshold; see State v. Little, supra, 194 Conn. 675
(‘‘the crime proscribed by § 53a-103 [a] is complete once
there has been an unlawful entering . . . in a building
with the intent to commit a crime in that building’’);
authority exists that a burglary, once begun, continues
until all parties participating in the burglary have left
the property. See 12A C.J.S. 207, Burglary § 55 (2014)
(‘‘burglary does not end when a burglar enters the prem-
ises, but continues for as long as the burglar is on the
premises with the intent to commit the crime’’), citing
Flanders v. Meachum, 13 F.3d 600, 603 (2d Cir. 1994)
(applying Connecticut law); see also 12A C.J.S., supra,
p. 138 (liability of aider or abetter ‘‘is consider[ed] ongo-
ing during the time that the perpetrator remains inside
the structure’’); 40 C.J.S. 481, Homicide § 62 (2014) (‘‘[a]
burglary is deemed to be in progress, for purposes of
a felony-murder charge, while the burglar is on the
premises’’). Although we have not discovered any
explicit statements in our precedent to this effect, our
courts have upheld felony murder determinations when
the predicate crime was a burglary and the deaths
occurred at some point after an unlawful entry. See In
re Michael B., supra, 36 Conn. App. 374 (probable cause
existed to find that murders ‘‘occurred after the respon-
dent unlawfully entered the home and before he left
the . . . home . . . and therefore within the temporal
limitation of when the alleged burglary began and
ended’’);32 see also State v. MacFarlane, 188 Conn. 542,
543, 450 A.2d 374 (1982) (homeowner, who had been
asleep in residence when burglars entered, awoke and
was strangled ‘‘during the course of the burglary’’).
The defendant did not argue at trial that his initial
entry was lawful; rather, he relied at trial on the affirma-
tive defense presented in § 53a-54c and on his claim
that he acted only under duress. He has not presented
any argument to the contrary on appeal. We also note
that all of the evidence presented at trial indicates that
the victim’s death occurred inside apartment 101 and
was committed while either the defendant or one of
his associates was present. Therefore, we conclude that
there is not a reasonable possibility that the inclusion
of this language misled the jury.33
The defendant’s second claim is that, by stating
unequivocally that the objective of the burglary was an
assault, the trial court committed error because the
determination as to what the defendant, Azibo, Azikiwe,
and Taylor intended in entering the apartment is solely
within the province of the jury. He claims this instruc-
tion prejudiced his defense because it removed from
the jury’s consideration the possibility that the purpose
of the burglary was a robbery and limited the defen-
dant’s ability to persuade the jury that he lacked the
objective to commit an assault although he was present
at the scene. We are not persuaded by this argument.
In the present case, the court instructed the jury on
the third element of felony murder, framing this element
as follows: ‘‘The third element is that the defendant or
another participant caused the death of the decedent
named in each count while in the course of and in
furtherance of the commission of the crime of burglary.
This means that the death occurred during the commis-
sion of the burglary and in the course of carrying out
its objective. And that objective was an assault.’’
To begin, we note that the statement by the court
‘‘that [the] objective [of the burglary] was an assault’’
followed the court’s reading of the amended informa-
tion and the immediately preceding statements con-
cerning the third element generally; thus, this statement
would have been understood by the jury as relating the
general elements of the crime to the specific allegations
contained within the amended information in a manner
that illustrated what the state had to prove. The risk that
this statement would be perceived as an unequivocal
direction to the precise purpose of the alleged burglary
was also undercut by both the court’s earlier instruc-
tions as to the state’s general burden to prove each
material element of any crime alleged and its detailed
instructions on the state’s specific burden to prove that
the defendant committed the predicate burglary in the
manner alleged by the state.34 Following the particular
language at issue, the trial court again reminded the
jury that the state bore the burden of proving beyond
a reasonable doubt each of the four elements of felony
murder. Finally, with the exception of the statement at
issue, which, as previously noted, is equivocal in con-
text, there were no other definite statements by the
trial court that reasonably could have compelled the
jurors to believe that the court was instructing them that
the objective of the burglary must have been an assault.
For these reasons, this case is distinguishable from
those relied upon by the defendant. See State v. Theri-
ault, 182 Conn. 366, 376–80, 438 A.2d 432 (1980) (in
accessorial liability case, harm caused by ‘‘very conclu-
sive nature’’ of trial court’s instruction that ‘‘[n]o ques-
tion’’ had been raised about defendant’s mental state
and jury could ‘‘treat him as having the mental state
required for the commission of the crime if [it found]
that he [was] the actual one that did it’’ not overcome
by other portions of charge, including text that immedi-
ately followed challenged statement [internal quotation
marks omitted]); State v. Rodriguez, 7 Conn. App. 470,
475–76, 509 A.2d 72 (1986) (where state alleged hinder-
ing prosecution in first degree, unequivocal statements
by court, which charged jury that murder had been
committed and listed time, date, and party responsible
for that murder, removed issue from jury’s consider-
ation). On the record before us, we conclude that there
is not a reasonable possibility that the jury was misled
by this statement.
B
Instructions that Death Must Occur
‘‘in Furtherance of’’ the Burglary
The defendant’s final claim of error concerns the
court’s instructions as to the requirement that the death
of the victim must have occurred ‘‘in furtherance of’’
the burglary. The defendant argues that the charge that
the court gave provided insufficient guidance to the jury
as to a key aspect of his defense. We are not persuaded.
In this case, the defendant requested the following
instruction concerning the requirement that the death
be in furtherance of the underlying felony: ‘‘ ‘In further-
ance of’ the burglary means that the killing must in
some way be causally connected to or as a result of
the burglary, or the flight from the burglary. The state
would have to prove that the deaths of Tina Johnson,
James Reid, and Basil Williams were caused by the
defendant or another participant in the burglary in the
course of, and in furtherance of the crime of burglary.
The phrase ‘in furtherance of such crime’ imposes the
requirement of a logical nexus between the felony and
the homicide. The connection between the underlying
felony and homicide must be more than the mere coinci-
dence to time and place. The nexus or connection must
be one of logic or plan. This means that the felony
murder statute excludes those deaths which are so far
outside the plan of the felony and its execution as to
be unrelated to them. In other words, a felony murder
does not include any killing incidentally committed with
the felony but only includes those felonies in the
attempted execution of the felony of burglary. Although
the homicide itself need not be in the common design,
the act which results in death must be in furtherance
of the unlawful purpose. In other words, the victims’
deaths must have been caused in furtherance of com-
mitting the burglary and not merely incidental to it.
‘‘For instance, a murder for personal motive is an
example of a death that is so far outside the ambit of the
plan of the felony and its execution as to be unrelated to
them. A murder for personal motive, then, is not a death
‘in furtherance of’ the underlying felony.’’
At trial, the court gave the following instruction to
the jury: ‘‘In furtherance of the burglary means that the
killing must be in some way causally connected to or
as a result of the burglary. The actions of the defendant
that caused the death of the decedent named in each
count must be done to aid the burglary in some way
or to further the purpose of the burglary.
‘‘It does not matter that the act that caused the death
may have been committed unintentionally rather than
with the intention to cause. The defendant is as guilty
when committing this form of murder as he would be
if he had intentionally committed the act that caused
the death.’’
Following the charge, the defendant objected that his
request to charge had included language from Connecti-
cut and New York cases concerning the ‘‘in furtherance
of’’ prong.35 On appeal, he claims that by omitting the
requested theory of defense instruction, the court pro-
vided insufficient guidance to the jury on his defense
that ‘‘even if the Aquarts murdered the victims ‘in the
course of’ the burglary, their personal, business-related
motive for the murders was so far outside the plan
of the underlying burglary with its alleged purpose of
committing a misdemeanor assault that it was not ‘in
furtherance of’ that burglary.’’ We disagree.
‘‘Our review of the defendant’s claim requires that
we examine the [trial] court’s entire charge to determine
whether it is reasonably possible that the jury could
have been misled by the omission of the requested
instruction. . . . While a request to charge that is rele-
vant to the issues in a case and that accurately states
the applicable law must be honored, a [trial] court need
not tailor its charge to the precise letter of such a
request. . . . If a requested charge is in substance
given, the [trial] court’s failure to give a charge in exact
conformance with the words of the request will not
constitute a ground for reversal. . . . As long as [the
instructions] are correct in law, adapted to the issues
and sufficient for the guidance of the jury . . . we will
not view the instructions as improper.’’ (Internal quota-
tion marks omitted.) State v. Baltas, 311 Conn. 786,
808–809, 91 A.3d 384 (2014).
With respect to the defendant’s framing of this argu-
ment, we agree with the state that the requested instruc-
tion on the ‘‘in furtherance of’’ prong goes to a material
element of the crime itself and, thus, is not the type of
theory of defense instruction that our courts are
required to give. ‘‘A theory of defense instruction con-
sists of an explanation of the defendant’s theory of
defense . . . .’’ State v. Baltas, supra, 311 Conn. 814.
‘‘Courts in Connecticut generally do not provide a the-
ory of defense instruction at the defendant’s request,
nor is there any requirement that such an instruction
be provided. Instead . . . [w]hen a defendant admits
the commission of the crime charged but seeks to
excuse or justify its commission so that legal responsi-
bility for the act is avoided, a theory of defense charge
is appropriate. A defendant must, however, assert a
recognized legal defense before such a charge will
become obligatory. A claim of innocence or a denial
of participation in the crime charged is not a legally
recognized defense and does not entitle a defendant to
a theory of defense charge.’’ (Citation omitted; internal
quotation marks omitted.) Id., 814–15. When the claim
of error goes to a material element of a crime rather
than a separate legal defense, that claim properly is
characterized as a failure to instruct adequately on that
element and will be reviewed accordingly. See id.,
816–18.
Turning to the substance of the charge, our Supreme
Court in State v. Young, supra, 191 Conn. 640–41, noted
the genesis of the ‘‘in furtherance of’’ prong of § 53a-
54c in New York law. The court then reviewed New
York case law construing this requirement: ‘‘Faced with
a claim that in furtherance of meant in aid of or in
advancement of, the New York courts have construed
the phrase to impose the requirement of a logical nexus
between the felony and the homicide. . . . More than
the mere coincidence to time and place . . . the nexus
must be one of logic or plan. Excluded are those deaths
which are so far outside the ambit of the plan of the
felony and its execution as to be unrelated to them.
. . . The phrase was viewed as incorporating into the
New York felony murder provision the previous limita-
tion upon the applicability of the felony murder rule
adopted in People v. Wood, 8 N.Y.2d 48, [167 N.E.2d
736, 201 N.Y.S.2d 328] (1960) [abrogated by People v.
Hernandez, 82 N.Y.2d 309, 624 N.E.2d 661, 604 N.Y.S.2d
524 (1993)]. In that case, where the defendant had been
indicted for the deaths of an accomplice as well as of
an innocent bystander in a gun battle with the police,
both of whom were shot by a tavern owner who was
assisting the police, the court upheld the dismissal of
the indictment. A felony murder embraces not any kill-
ing incidentally coincident with the felony . . . but
only those committed by one of the criminals in the
attempted execution of the unlawful end . . . .
Although the homicide itself need not be within the
common design . . . the act which results in death
must be in furtherance of the unlawful purpose.’’ (Cita-
tions omitted; emphasis in original; internal quotation
marks omitted.) State v. Young, supra, 641–42.
Our Supreme Court agreed with the manner in which
New York courts had construed this language: ‘‘[T]he
phrase in furtherance of was intended to impose the
requirement of a relationship between the underlying
felony and the homicide beyond that of mere causation
in fact, similar to the concept of proximate cause in
the law of torts. Primarily its purpose was to limit the
liability of a person whose accomplice in one of the
specified felonies has performed the homicidal act to
those circumstances which were within the contempla-
tion of the confederates to the undertaking, just as the
liability of a principal for the acts of his servant is
similarly confined to the scope of the agency. All who
join in a common design to commit an unlawful act,
the natural and probable consequence of the execution
of which involves the contingency of taking human life,
are responsible for a homicide committed by one of
them while acting in pursuance of, or in furtherance
of, the common design.’’ (Emphasis omitted; internal
quotation marks omitted.) Id., 642. Thus, ‘‘[t]he phrase
serves to exclude those murders that are committed
during the course of an underlying felony but that are
wholly unrelated . . . but does not serve to exclude
killings that were not intended.’’ (Citation omitted.) In
re Michael B., supra, 36 Conn. App. 375.
Pursuant to New York law, a murder wholly caused
by a personal motive of an accomplice does not occur
‘‘in furtherance of’’ the underlying felony just because
it occurs during the felony. See, e.g., People v. Lewis,
111 Misc. 2d 682, 685, 444 N.Y.S.2d 1003 (1981) (‘‘[e]ven
when the homicide is committed by one of the persons
engaged in the underlying felony, if that person acts for
a private purpose unrelated to the felony, the remaining
members of the group are not liable for the murder’’);
see also People v. Wood, supra, 8 N.Y.2d 52 (‘‘[w]here
. . . the felon kills someone during the felony, but in
a separate and distinct act and to satisfy his own end,
his accomplice in the felony is not guilty of murder’’).
Neither our Supreme Court nor this court, however,
has ever required affirmatively an instruction as to the
effect of a separate personal motive on this prong. In
State v. Allen, 216 Conn. 367, 386–88, 579 A.2d 1066
(1990), our Supreme Court considered a claim of
instructional error similar to the one advanced by the
defendant,36 but determined that the trial court’s
charge37 adequately instructed the jury on the required
causal connection between the felony and the deaths.
Further, we note that, prior to its decision in State v.
Young, supra, 191 Conn. 636, our Supreme Court upheld
jury instructions that were substantially less descriptive
as to the requirement that the resulting death must
occur in furtherance of the defendant and his associ-
ates’ shared design. See State v. MacFarlane, supra,
188 Conn. 551 (court did not define ‘‘in furtherance of’’
in its charge).
Finally, our courts have recognized that burglary is
a crime that, by its nature, involves a recognizable risk
of injury and death to others. See In re Michael B.,
supra, 36 Conn. App. 376 (‘‘[i]t is very likely that in the
course of committing a burglary a burglar will encoun-
ter an occupant of the dwelling, who may resist, and,
in furtherance of the burglary, death of the dweller may
likely result’’), citing State v. MacFarlane, supra, 188
Conn. 553. This risk of death is especially clear when
the burglary itself is predicated on a plan to commit
an assault. See People v. Henderson, 25 N.Y.3d 534, 541,
35 N.E.3d 840, 14 N.Y.S.3d 770 (2015) (‘‘there is a clear
logical nexus between defendant’s felony of unlawfully
entering the victim’s apartment to assault him and the
homicide, which was certainly not coincidental’’).
In this case, the trial court’s instructions on the ‘‘in
furtherance of’’ prong, which essentially mirror those
in our model jury instructions; see Connecticut Criminal
Jury Instructions (4th Ed. 2008 [Rev. to November 17,
2015]) § 5.4-1, available at http://jud.ct.gov/ji/criminal/
Part5/5.4-1.htm (last visited April 29, 2016); adequately
explained the causal connection required by this prong.
The court’s remaining instructions concerning the ele-
ments of felony murder, which either are unchallenged
or which we already have determined were not in error;
see part II B 2 of this opinion; included a direction that,
to find that the defendant participated in the crime
of burglary, he must have knowingly and unlawfully
entered the apartment with the specific intent of com-
mitting an assault.
Finally, the court instructed the jury on the defen-
dant’s affirmative defense pursuant to § 53a-54c38 and
on his claim of duress,39 both of which advanced the
concerns of the defendant’s proposed instructions that
he did not share the motivations of Azibo and Azikiwe
in their execution of the burglary. Therefore, because
the jury necessarily accepted that the defendant entered
the apartment intending to commit an assault and there
was evidence from multiple sources that the baseball
bats that the defendant brought were likely the instru-
ments causing the deaths of the residents, we cannot
conclude that there was a reasonable possibility that
the jury was misled because the act that caused the
residents’ death—specifically, being repeatedly struck
by baseball bats40—would have remained within the
reasonable contemplation of the participants to this
burglary.
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 victim is unrelated to the defendant.
2
The defendant was acquitted as to the counts arising from the felony
murder and kidnapping of Reid (counts two and five) and Williams (counts
three and six).
3
Azibo is known by a number of nicknames, including ‘‘Dee’’ and ‘‘Dready.’’
4
Like his brother, Azikiwe was known by a number of nicknames, includ-
ing ‘‘Z,’’ ‘‘Ziggy,’’ and ‘‘Ozzie.’’
5
Taylor did not observe anyone threatened, forced, or ordered to put on
the gloves or masks.
6
It is unclear whether the incident that Hodges observed was, in fact, the
same unsuccessful attempt in which Taylor participated. Hodges did not
recall seeing the defendant or Taylor there that night and did not see Azibo
or his men holding weapons.
7
Each of the decedents also was identified as a contributor to, or was
not eliminated as a contributor to, many of the samples.
8
This statistical frequency applies to all potential contributors to a sample.
9
In particular, Evangelista’s external examination of the body revealed
multiple visible injuries to her head and face as well as a wrist fracture
that, although not visible, could be felt clearly through the skin. During his
subsequent internal examination, Evangelista observed numerous internal
injuries consistent with blunt force trauma, including lacerations and bruises
to the exterior of the victim’s head, damage to her left eyeball, fractures in
her skull and cheekbones, and bruising and bleeding in the brain.
10
The defendant originally appealed to this court from the judgment of
conviction on April 17, 2014. On November 6, 2014, the appeal was trans-
ferred from this court to the Supreme Court pursuant to Practice Book § 65-
1 and General Statutes § 51-199 (c). Subsequently, on February 4, 2015, the
Supreme Court transferred this appeal back to this court.
11
Subsequent to the defendant’s 2013 conviction, § 53a-54c was amended
by No. 15-211, § 3, of the 2015 Public Acts; these amendments made technical
changes and added a separate predicate felony, neither of which are relevant
to this appeal. Therefore, we refer to the current revision of the statute.
12
General Statutes § 53a-3 (3), in turn, defines ‘‘physical injury’’ as ‘‘impair-
ment of physical condition or pain . . . .’’
13
The defendant provided a different account for the group’s entry into
the apartment, stating that: he had been instructed by Azibo to knock on
the door, pretending to be a customer seeking crack cocaine, and then to
get out of the way when the door opened; he knocked on the door as
instructed; and once the door was opened, the remaining members of the
group forced the defendant into the apartment in their efforts to get in them-
selves.
This alternate account, even if believed, remains unhelpful to the defen-
dant’s position for two reasons. First, it corroborates Taylor’s testimony
that the group’s entry into apartment 101 was accomplished by force, but
merely changes the precise manner in which that entry was achieved. Sec-
ond, in the context of appraising an accessory’s liability for an assault
accomplished or attempted by another, this court has held on two prior
occasions that the accessory intended harm to the victim where he or she
knew of the principal’s motive and knew that the principal was armed,
but nevertheless accompanied that principal to the victim’s residence and
attempted to get the victim in a favorable position for the principal to act.
See State v. VanDeusen, 160 Conn. App. 815, 832–33, 126 A.3d 604, cert.
denied, 320 Conn. 903, 127 A.3d 187 (2015); State v. Scheck, 106 Conn. App.
81, 85–87, 940 A.2d 871, cert. denied, 286 Conn. 918, 945 A.2d 979 (2008).
14
Our Supreme Court has opined on the limited circumstances in which
the absence of a proof of motive might be sufficient to prove lack of intent:
‘‘While motive is not an element of a crime that the state has the burden
of proving, the presence of evidence of motive may strengthen the state’s
case. . . . It is conceivable that the evidence adduced in a particular case
would be so inconclusive that without evidence of motive a judgment of
acquittal might be required because the jury could not rationally find that
the state had proved the elements of the charged offense beyond a reasonable
doubt. In such a case, a judgment of acquittal might be required not because
motive was an element of the offense, but because evidence of motive would
strengthen the state’s otherwise insufficient evidence of an element of the
offense, such as identification or intent. There is, however, only a very
limited category of cases in which a lack of proof of motive would mandate
a judgment of acquittal.’’ (Citation omitted.) State v. Pinnock, 220 Conn.
765, 773, 601 A.2d 521 (1992). The present case is ‘‘not in that category.’’
Id., 773–74.
15
‘‘The crime proscribed by the provisions of . . . § 53a-103, is committed
completely once a person enters or remains unlawfully in a building with
the intent to commit a crime therein. . . . Therefore, the state need not
prove that a completed crime occurred to convict a defendant of burglary.’’
(Citation omitted; emphasis in original; internal quotation marks omitted.)
State v. Sherman, 127 Conn. App. 377, 383–84 n.4, 13 A.3d 1138 (2011).
16
Neither the defendant nor Taylor testified at trial that the defendant
had injured anyone directly while in apartment 101. Lashika testified, how-
ever, that the defendant had told her, in seemingly contradictory terms, that
he had ‘‘roughed somebody up’’ while in the apartment, but had not hurt
or killed anyone.
17
General Statutes § 53a-8 (a) provides: ‘‘A person, acting with the mental
state required for commission of an offense, who solicits, requests, com-
mands, importunes or intentionally aids another person to engage in conduct
which constitutes an offense shall be criminally liable for such conduct and
may be prosecuted and punished as if he were the principal offender.’’
Although ‘‘[a]n accessory must have both the intent to help the principal
and the intent to commit the crime’’; State v. Vincent, 194 Conn. 198, 207,
479 A.2d 237 (1984); ‘‘[t]he mental state of an aider and abettor incorporated
in § 53a-8 does not require that the accused know of or endorse every act
of his coparticipant in crime.’’ State v. McCalpine, 190 Conn. 822, 832, 463
A.2d 545 (1983).
18
‘‘Although we note that our Supreme Court recently granted certification
to decide whether Kitchens should be overruled in State v. Herring, 151
Conn. App. 154, 94 A.3d 688, cert. granted, 314 Conn. 914, 100 A.3d 849
(2014), the holding in Kitchens presently remains binding upon this court.’’
(Internal quotation marks omitted.) State v. Young, 161 Conn. App. 552, 562
n.5, 129 A.3d 127 (2015).
19
Neither of the court’s drafts of its proposed charges is in the record or
was otherwise submitted to this court.
20
We rely on the preceding statements, presented by the defendant in his
January 22, 2014 renewed motion for a judgment of acquittal or, in the
alternative, for a new trial, to the extent that the state has not disputed
them and nothing in the record contradicts them. See State v. Bharrat, 129
Conn. App. 1, 17 n.9, 20 A.3d 9 (relying on factual assertions in state’s brief
that prior versions of charges not contained in record ‘‘encompassed the
same instructions that the court ultimately delivered to the jury’’), cert.
denied, 302 Conn. 905, 23 A.3d 1243 (2011).
21
In his posttrial motion, however, the defendant provided greater detail,
noting that ‘‘the felony murder charge was revised after counsel for both
parties consulted and agreed that the [trial court’s] instruction was insuffi-
cient because it failed to articulate the elements of burglary, the predicate
offense for felony murder.’’
22
In particular, the court provided the following instructions on the third
element of felony murder: ‘‘The third element is that the defendant or another
participant caused the death of the decedent named in each count while in
the course of and in furtherance of the commission of the crime of burglary.
‘‘This means that the death occurred during the commission of the burglary
and in the course of carrying out its objective. And that objective was
an assault.
‘‘Now, in the course of the commission of the burglary means during any
part of the defendant’s participation in the burglary. The phrase, in the
course of the commission, is a time limitation and means conduct occurring
immediately before the commission or during the commission of the burglary
and in the course of carrying out its objective.
‘‘Thus, the death of the decedent named in each count must have occurred
somewhere within the time span of the occurrence of the facts which
constitute the burglary and in the course of carrying out its objective.
‘‘Also, the immediate murder of a person to eliminate a witness to a crime
or to avoid detection is also in the course of the commission. In this regard,
if you find one or more persons—or one or more of the decedents, I should
say—was killed simply to eliminate him as a witness to the crime or to
avoid detection, that killing is also in the course of the commission of the
underlying felony.
‘‘In furtherance of the burglary means that the killing must be in some
way causally connected to or as a result of the burglary. The actions of the
defendant that cause the death of the decedent named in each count must
be done to aid the burglary in some way or to further the purpose of
the burglary.
‘‘It does not matter that the act that caused the death may have been
committed unintentionally rather than with the intention to cause. The
defendant is as guilty when committing this form of murder as he would
be if he had intentionally committed the act that caused the death.’’
23
Defense counsel stated the following: ‘‘On the felony murder instruction
we had substituted proposed language on the ‘in the course of’ language
to—that defined proximate cause. We had also included language that further
defined ‘in furtherance’ that was taken from the Supreme Court decision[s]
of State v. Allen [216 Conn. 367, 579 A.2d 1066 (1990)] and State v. Young
[191 Conn. 636, 469 A.2d 1189 (1983)]. Those citations are in the request.
‘‘We had also articulated language from New York courts, which had been
cited in the Allen case, that were consistent with our theory of defense,
which is that it cannot be in furtherance of if it was—the homicide was
committed for the personal motive of one of the participants involved.
‘‘Your Honor had added language to the ‘in the course of’ element to say
that it could happen in the course of the burglary or in the course of carrying
out its objective. And the carrying out of its objective portion, we submit,
is not consistent with the law.’’
24
The following exchange took place between the court and defense
counsel:
‘‘The Court: I will say—and I appreciate your wish to articulate—but to
the extent—just so that you have your record protected, to the extent that
you filed a request to charge and I have not given the proposed instructions,
I acknowledge that I have not . . . and you have those preserved.
‘‘[Defense Counsel]: Then the only thing I’ll add just because it’s not—
it’s the—Your Honor added language instead of failing to . . . incorporate
what we proposed, is on the affirmative defense. . . .
‘‘The Court: Well—but again, I would say, if I failed to charge either by
way of addition or subtraction, any deviation from your request to charge,
I’ll acknowledge that and you can have that on the record.’’ (Emphasis
added.)
25
We note that both Paige and Johnson involved whether a party subse-
quently had waived an issue initially preserved by a request to charge by
failing to also take an exception to the charge and involved slightly different
factual circumstances, in that the defendant filed a request to charge, the
court either failed completely to include the charge as given or omitted
certain paragraphs from the requested language, and the defendant failed
to take an explicit exception to the language. See State v. Johnson, supra,
316 Conn. 53–57; State v. Paige, supra, 304 Conn. 438–46.
26
We do not believe, however, that the language acts solely as a gloss on
the ‘‘in furtherance of’’ prong. See part II A 2 of this opinion.
27
We, therefore, do not have to address whether the defendant’s exception
to the charge as given sufficiently stated the ground for the exception to
preserve the claim on appeal.
28
The defendant challenges three instances of the phrase ‘‘in the course
of carrying out its objective’’ in the trial court’s instructions to the jury on
the third element of felony murder. The latter two such instances distinctly
occurred during the trial court’s discussion of the ‘‘in the course of’’ prong.
In the first such instance, however, the trial court used the phrase in precisely
the same manner that the defendant did in his request to charge. Thus,
although the gravamen of the defendant’s claim survives, the defendant
cannot rely on this first instance because any error arising from it was
induced.
29
The defendant does not contest, however, that the actions which led
to the victim’s death occurred while the Aquarts were still in the apartment.
30
The court, however, held that it was not reasonably possible that the
jury was misled due to the remainder of the charge. See State v. Scognamig-
lio, supra, 202 Conn. 26–28.
31
‘‘The third element [of felony murder] is that the defendant or another
participant caused the death of while in the
course of, and in furtherance of, the commission or attempted commission
of the crime of , or, in immediate flight from the
crime. This means that the death occurred during the commission of the
and in the course of carrying out its objective.’’
Connecticut Criminal Jury Instructions (4th Ed. 2008 [Rev. to November 17,
2015]) § 5.4-1, available at http://jud.ct.gov/ji/criminal/Part5/5.4-1.htm (last
visited April 29, 2016).
32
In In re Michael B., supra, 36 Conn. App. 373, there was no direct
evidence that the respondent had entered the home with the residents’
permission, but circumstantial evidence supported an inference that the
respondent had entered the residence in the late morning, when he knew
none of the residents would be home. Further, although there was no direct
evidence that the respondent had possessed the intent when he had entered
the residence, there was circumstantial evidence that he had formed such
an intent while he unlawfully remained when, inter alia, he shot the residents’
dog and fired bullets into the bedrooms of the residents in the late morning
or early afternoon. Id., 367, 373–74. Thus, as evidence suggested that the
two deaths at issue occurred between 2:30 and 3:30 p.m. when the two of
the residents returned home; id., 367–68; any burglary pursuant to § 53a-
103 was potentially ongoing for several hours prior to the residents’ deaths.
See id., 373–74.
33
Accordingly, we also reject the defendant’s unpreserved claim that this
same alleged instructional error necessitates a new trial on the kidnapping
count as well.
34
The trial court offered the following instructions: ‘‘The first element is
that the defendant, acting either alone or with one or more person, commit-
ted the crime of burglary. Here, of course, the state claims that the defendant
acted with one or more persons.
‘‘For purposes of the crime of felony murder, the state must prove that
the defendant committed a burglary. The gist of the crime of burglary is
the knowing and unlawful entry into a building with the intent to commit
a crime therein. . . .
‘‘The state claims that the defendant intended to commit the crime of
assault. An assault is the intention to cause physical injury to another person,
coupled with causing such injury to such person or to a third person.’’
The court then clarified what was required for the jury to find that the
defendant acted intentionally and the manner in which the jury could deter-
mine such behavior before repeating that ‘‘the burden of proving intent
beyond a reasonable doubt is on the state.’’
35
The state does not contest that this claim is preserved.
36
Relying on New York cases, the defendant in Allen requested the follow-
ing instructions: ‘‘8. A murder for personal motive is an example of a death
that is so far outside the ambit of the plan of the felony and its execution
as to be unrelated to them. A murder for personal motive, then, is not a
death in furtherance of the underlying felony. . . .
‘‘9. Similarly, where a felon kills someone during the commission of a
felony, but in a separate and distinct act and to satisfy his own end, his
accomplice in the felony is not guilty of murder.’’ (Citation omitted; internal
quotation marks omitted.) State v. Allen, supra, 216 Conn. 386 n.8.
37
‘‘Specifically, the trial court in Allen instructed: [T]he State . . . would
have to prove that the death of [the victim] was caused by [the defendant]
or [his accomplice] in the course of, and in furtherance of the crimes of
either burglary or robbery. The phrase in furtherance of such crime imposes
the requirement of a logical nexus, that is a connection between the felony
and the homicide. The connection between the underlying felony and homi-
cide must be more than the mere coincidence of time and place. The nexus
or connection must be one of logic or plan. This means that the felony
murder statute excludes those deaths which are so far outside the plan of
the felony and its execution as to be unrelated to that. In other words, a
felony murder does not include any killing incidentally committed with the
felony but only includes those felonies in the attempted execution of the
felony of burglary and robbery. Although the homicide itself need not be
in the common design, the act which results in death must be in furtherance
of the unlawful purpose. In other words, [the victim’s] death must have
been caused in furtherance of committing the burglary or robbery and not
merely incidental to it.’’ (Internal quotation marks omitted.) State v. Allen,
supra, 216 Conn. 387–88.
38
‘‘Pursuant to § 53a-54c, if a defendant charged with felony murder was
not the sole participant in the underlying crime, that defendant may claim
as an affirmative defense that he or she: (1) [d]id not commit the homicidal
act or in any way solicit, request, command, importune, cause or aid the
commission thereof; and (2) was not armed with a deadly weapon, or any
dangerous instrument; and (3) had no reasonable ground to believe that
any other participant was armed with such a weapon or instrument; and
(4) had no reasonable ground to believe that any other participant intended
to engage in conduct likely to result in death or serious physical injury. The
defense is only effective if all four elements are met. The burden of proving
these elements is on the defendant, who must prove their existence by a
preponderance of the evidence.’’ (Internal quotation marks omitted.) State
v. Small, 242 Conn. 93, 99–100, 700 A.2d 617 (1997).
39
General Statutes § 53a-14 provides: ‘‘In any prosecution for an offense,
it shall be a defense that the defendant engaged in the proscribed conduct
because he was coerced by the use or threatened imminent use of physical
force upon him or a third person, which force or threatened force a person
of reasonable firmness in his situation would have been unable to resist.
The defense of duress as defined in this section shall not be available to a
person who intentionally or recklessly places himself in a situation in which
it is probable that he will be subjected to duress.’’
40
We recognize that there was some testimony that Womble kept a table
leg in apartment 211 and that the blood spatter located in apartment 101
would be consistent with the use of either a baseball bat or a table leg.
Nevertheless, the weight of the testimony at trial, including the statements
which the defendant’s sister attributed to him, concerned baseball bats
being brought to apartment 101, subsequently used in the murders, and
discarded afterward.