September 16, 2016
from Superior Court, judicial district of New Haven,
Wagner, assistant public defender, for the appellant
Matthew A. Weiner, assistant state's attorney, with whom,
on the brief, were Michael Dearington, state's attorney,
and Michael Pepper, senior assistant state's attorney,
for the appellee (state).
DiPentima, C. J., and Keller and Prescott, Js.
DiPENTIMA, C. J.
defendant, Levarr Frasier, appeals from the judgment of
conviction, rendered after a jury trial, of manslaughter in
the first degree with a firearm in violation of General
Statutes § 53a-55a, assault in the first degree in violation
of General Statutes § 53a-59 (a) (5),  and carrying a
pistol without a permit in violation of General Statutes
§ 29-35. On appeal, the defendant claims that (1)
the court improperly instructed the jury on accessorial
liability and (2) he was denied his right to a fair trial due
to prosecutorial impropriety. We affirm the judgment of the
jury reasonably could have found the following facts. Prior
to the night in question, Adrian Redmond and Travis James had
several altercations regarding the mother of Redmond's
child. James and the child's mother were dating, and
Redmond took offense to James ‘‘going around
telling people about some [explicit] photos that she had sent
[James].'' In addition, James believed that Redmond
and the child's mother still had an ongoing relationship.
Redmond confronted James and requested that he stop
publicizing the photographs. In response, James threatened
Redmond, warning him that ‘‘I'll have you
killed'' and ‘‘just wait here and
you'll see. I'll have you shot right now because I
have somebody who wants you dead anyway.''
Brown, a longtime friend of Redmond, was often with Redmond
during the disputes between James and him. In the late
evening of January 11, 2011, Brown drove Redmond to the Crown
Fried Chicken restaurant on Dixwell Avenue in New Haven to
get something to eat. While Brown and Redmond were parked at
a corner near the restaurant, James and the defendant exited
the restaurant, and James approached the driver's side
window of Brown's vehicle. In addition to his threats to
Redmond, James had been leaving threatening voice messages on
Brown's phone because James believed Brown was
‘‘playing both sides of the fence'' in
his dispute with Redmond. James and Brown then engaged in a
heated argument, and Brown demanded that James stop leaving
threatening voice messages on his phone.
point, James said that he was ‘‘at the end of his
rope'' and did not ‘‘care about life
anymore.'' Redmond attempted to diffuse the argument
and stated that ‘‘it's not that serious,
'' and sought to settle their differences at another
time. James remained furious and walked away from the vehicle
toward the defendant. After a brief conversation, James and
the defendant then returned to the driver's side of
Brown's vehicle. James again mentioned that Brown was
‘‘playing both sides of the fence, '' and
directed the defendant to kill both of them. The defendant
then pulled out a firearm and opened fire.
was shot in the left elbow and managed to flee to a nearby
alley. Brown also was able to flee the vehicle but was shot
and collapsed on the street. Once the defendant stopped
shooting, he and James fled. Police arrived at the scene
shortly after the shooting and found Brown lying unconscious
on the street. Brown was transported to the Hospital of St.
Raphael where he spent a week on life support before he died
from the gunshot wounds. Redmond was transported to Yale-New
Haven Hospital and eventually recovered from his injuries.
hospital, Redmond spoke to Detective Wayne Bullock regarding
the shooting. Redmond identified James and the defendant, by
their street names, as those responsible for the attack and
named the defendant as the shooter. Bullock followed up on this
information and learned that James and the defendant were
known to associate with one another and were frequently in
the neighborhood where the shooting occurred.
defendant was arrested three days after the shooting by
Officer John Palmer. After voluntarily waiving his
Miranda rights, the defendant made several
statements to police indicating that he was with George White
at White's home at the time of the shooting, where he
remained until he walked home at 2 a.m. on January 12.
Bullock followed up with White who provided a different
story. Bullock then confronted the defendant with
White's account, but the defendant refused to change his
conducted a second interview with White approximately one
month after the attack. During this interview, White provided
a different account from his earlier one and explained that
after he got out of work at 10 p.m. on January 11, he picked
up the defendant, they purchased marijuana, and then went
back to his home. White stated that the defendant
‘‘didn't seem himself'' and that the
defendant told White either ‘‘I think I shot
somebody'' or ‘‘I shot someone
tonight.'' According to White, the defendant stayed
at his home until the following morning.
defendant subsequently was charged, solely as the principal,
with murder, assault in the first degree, and carrying a
pistol without a permit and was tried by a jury. The jury was
unable to reach a verdict, and the court declared a mistrial.
The defendant was tried again and charged, as a principal or
an accessory, with murder, assault in the first degree, and
carrying a pistol without a permit. The jury acquitted the
defendant of murder and convicted him of the lesser included
offense of manslaughter in the first degree with a firearm,
assault in the first degree, and carrying a pistol without a
permit. The court rendered judgment accordingly and sentenced
the defendant to forty years of incarceration. This appeal
defendant first claims that the court improperly instructed
the jury on the doctrine of accessorial liability. He
maintains that the court's instructions were improper in
three ways, which we analyze in turn: (1) that the
court's ‘‘intentionally aid''
instruction was misleading; (2) that the court's
instruction that it was ‘‘not necessary to prove
that the defendant was actually present or actively
participated'' was misleading; and (3) that
‘‘the court erroneously merged all of the
offenses into a single instruction.'' We
preliminary matter, we note that the defendant neither filed
a written request to charge nor objected to the court's
instructions as given. ‘‘It is well established
that [t]his court is not bound to review claims of error in
jury instructions if the party raising the claim neither
submitted a written request to charge nor excepted to the
charge given by the trial court.'' (Internal
quotation marks omitted.) State v. Serrano, 91
Conn.App. 227, 244, 880 A.2d 183, cert. denied, 276 Conn.
908, 884 A.2d 1029 (2005). The defendant now seeks review of
his claim pursuant to State v. Golding, 213 Conn.
233, 239-40, 587 A.2d 823 (1989). ‘‘Under
Golding, a defendant may prevail on an unpreserved
claim only if the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2)
the claim is of constitutional magnitude alleging the
violation of a fundamental right; (3) the alleged
constitutional violation . . . exists and . . . deprived the
defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a
reasonable doubt.'' (Internal quotation marks
omitted.) State v. Tarver, 166 Conn.App. 304, 321,
141 A.3d 940, cert. denied, 323 Conn. 908, A.3d (2016).
review the defendant's claim here because the record is
adequate for review and the defendant's claim that the
court improperly instructed the jury is of
‘‘constitutional dimension.'' State
v. Hines, 89 Conn.App. 440, 455, 873 A.2d 1042 (claims
of improper jury instructions ‘‘as to an element
of a charged offense is of constitutional
dimension''; thus Golding review is
appropriate), cert. denied, 275 Conn. 904, 882 A.2d 678
(2005). We conclude however, that the defendant has failed to
demonstrate the existence of a constitutional violation that
deprived him of a fair trial.
conclusion of the court's instruction on the elements of
the charged offenses, the court stated that
‘‘[a]ll the language that I've given you up
to this point has been about being convicted as a principal,
the shooter. . . . This is language which pertains to another
theory of responsibility called accessory.'' The
court defined an accessory as ‘‘[a] person acting
with the mental state required for the commission of an
offense, who solicits, requests, commands, importunes, or
intentionally aids another person to engage in con- duct
which constitutes [an] offense shall be criminally liable for
such conduct and may be prosecuted and punished . . . as if
he were the principal offender.''
court then outlined the requirements under General Statutes
§ 53a-8 (a) constituting criminal liability as an
accessory. Throughout the court's accessory
instruction, it defined intent generally and iterated that
‘‘[i]ntentionally aid . . . means to act in any
manner, the conscious objective . . . of which is to assist,
help, or support. If the defendant did any of these things .
. . he is guilty of murder, assault in the first degree, or
any lesser included offenses, depending on . . . what you
determined, just as though he had directly committed it or
participated in the commission of those crimes.''
court further instructed the jury that ‘‘[t]o
establish the guilt of a defendant as an accessory for
assisting in the criminal act of another, the State must
prove criminality of intent and community of unlawful
purpose. That is, for the defendant to be guilty as an
accessory, it must be established that he acted with the
mental state necessary to commit murder, any of the lesser
included offenses, assault in the first degree or any of the
lesser included offenses, and that in furtherance of the
crime, he solicited, requested, commanded, importuned, or
intentionally aided the principal to commit murder, assault
in the first degree, or any of the lesser included offenses.
Evidence of mere presence as an inactive companion or passive
acquiescence or the doing of innocent acts which in fact aid
in the commission of a crime is insufficient to find the
defendant guilty as an accessory under the statute.
Nevertheless, it is not necessary to prove that the defendant
was actually present or actively participated in the actual
commission of the crime . . . . For you to find the defendant
guilty of this charge . . . you must unanimously find that
the State has proven all the elements of whatever crime you
find proven beyond a reasonable doubt. If you conclude the
defendant is guilty as a principal or as an accessory, you do
not need to be unanimous regarding whether you believe he was
a principal or accessory as long as all twelve jurors agree
that at least one method, principal or accessory, has been
proven beyond a reasonable doubt.''
conclusion of its charge, the court advised the jury to send
a note to the court if it had any questions. The court stated
that ‘‘[i]f you send me a lot of notes,
that's okay. If you don't send me any notes,
that's fine too. . . . By explaining the note process,
I'm not trying to encourage or discourage you from
sending notes. If you have a question put it in a note.
I'll read it [and] answer it if I can.'' The jury
was also aware that its questions should ‘‘be as
specific as possible.''
deliberations, the jury sent a note to the court requesting
clarification on accessorial liability. The court answered
the question by stating that ‘‘[a]ccessorial
liability doesn't create a new count or a new crime. . .
. The State is entitled to . . . put in . . . a different
theory of liability [other than as principal]. . . . [T]hey
are [also] entitled to say to the jury, we've charged
this defendant as the shooter, but we also want you to
consider the theory . . . where . . . if he is not the
shooter, he intentionally aided the ...