September 26, 2017
A. Beattie, assigned counsel, for the appellant (defendant).
A. Chiarenza, assistant state's attorney, with whom, on
the brief, were Gail P. Hardy, state's attorney, and John
F. Fahey, senior assistant state's attorney, for the
Alvord, Mullins and Beach, Js. [*]
case returns to us on remand from our Supreme Court; see
State v. Davis, 325 Conn. 918, 163 A.3d 618 (2017);
with direction to consider the claim of plain error raised by
the defendant, Paul Davis, in light of its decision in
State v. McClain, 324 Conn. 802, 155 A.3d 782
(2017). We now consider the defendant's appeal from the
judgment of conviction of accessory to murder in violation of
General Statutes §§ 53a-54a (a) and 53a-8 (a),
which he claimed that the trial court committed plain error
by improperly instructing the jury that it was not necessary
for the state to prove that the defendant intended to kill
the victim to find him guilty of accessory to murder.
conclude that the trial court did not instruct the jury that
it was not necessary for the state to prove the
defendant's intent to kill. Rather, the trial court
properly instructed the jury that the state was not required
to prove that the defendant intended to kill the specific
victim that was killed. Accordingly, we affirm the judgment
of the trial court.
following facts, as set forth in our first Davis
opinion; State v. Davis, 163 Conn.App. 458, 136 A.3d
257 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618
(2017); are relevant here. ‘‘The defendant was a
member of a gang in Hartford. On May 28, 2006, in retaliation
for a shooting that occurred earlier that day in which
another member of the defendant's gang was shot, the
defendant, Ackeem Riley and Dominique Mack discussed
conducting a drive-by shooting in the Nelton Court area of
Hartford. The trio had no specific victim intended.
defendant drove himself, Riley and Mack toward the Nelton
Court area in a car he had borrowed. Riley was armed with a
nine millimeter Glock handgun. Mack was armed with a nine
millimeter Taurus. As the defendant drove, he, Riley and Mack
saw a group of children at the corner of Elmer and Clark
Streets. Riley and Mack fired at least seventeen shots from
their handguns at the group, striking two boys. One of the
victims, Kerry Foster, Jr., a fifteen year old boy, was hit
by five bullets, resulting in his death. The other victim,
Cinque Sutherland, a fourteen year old boy, was hit by three
bullets, resulting in serious injury.
the shooting, the defendant, Riley and Mack fled the scene
and left the car on Guilford Street. From there, they
summonedacabtotakethemto140 Oakland Terrace. Riley, Mack and
another man later returned to the vehicle and set it on fire.
June 7, 2006, the defendant agreed to speak with members of
the Hartford Police Department, and he provided them with
information about the shooting. He told the officers about
the planning of the shooting, the types of firearms used and
where they could be found.
told them how the vehicle used in the shooting later was set
on fire. The defendant, however, did not disclose his
involvement in the shooting until almost three years later,
in May, 2009, when he again spoke to the police and provided
a written statement.
providing a written statement to the police, the defendant
was charged [inter alia] with and later convicted of
accessory to murder . . . .'' Id., 460-61; see also
footnote 1 of this opinion. Additional facts will be set
forth as necessary.
defendant claims, with respect to his conviction of accessory
to murder, that the trial court improperly instructed the
jury that it was not necessary for the state to prove that he
intended to kill the victim to find him guilty of accessory
to murder. The defendant concedes that he waived this claim
pursuant to State v. Kitchens, 299 Conn. 447,
482-83, 10 A.3d 942 (2011). He argues, however, this
instruction was ‘‘plain error and failure to