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State v. Davis

Court of Appeals of Connecticut

November 28, 2017

STATE OF CONNECTICUT
v.
PAUL DAVIS

          Argued September 26, 2017

          Mary A. Beattie, assigned counsel, for the appellant (defendant).

          Rocco 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 appellee (state).

          Alvord, Mullins and Beach, Js. [*]

          OPINION

          MULLINS, J.

         This case returns to us on remand from our Supreme Court; see State v. Davis, 325 Conn. 918, 163 A.3d 618 (2017); with direction to consider the claim of plain error raised by the defendant, Paul Davis, in light of its decision in State v. McClain, 324 Conn. 802, 155 A.3d 782 (2017). We now consider the defendant's appeal from the judgment of conviction of accessory to murder in violation of General Statutes §§ 53a-54a (a) and 53a-8 (a), [1] in which he claimed that the trial court committed plain error by improperly instructing the jury that it was not necessary for the state to prove that the defendant intended to kill the victim to find him guilty of accessory to murder.

         We conclude that the trial court did not instruct the jury that it was not necessary for the state to prove the defendant's intent to kill. Rather, the trial court properly instructed the jury that the state was not required to prove that the defendant intended to kill the specific victim that was killed. Accordingly, we affirm the judgment of the trial court.

         The following facts, as set forth in our first Davis opinion; State v. Davis, 163 Conn.App. 458, 136 A.3d 257 (2016), remanded in part, 325 Conn. 918, 163 A.3d 618 (2017); are relevant here. ‘‘The defendant was a member of a gang in Hartford. On May 28, 2006, in retaliation for a shooting that occurred earlier that day in which another member of the defendant's gang was shot, the defendant, Ackeem Riley and Dominique Mack discussed conducting a drive-by shooting in the Nelton Court area of Hartford. The trio had no specific victim intended.

         ‘‘The defendant drove himself, Riley and Mack toward the Nelton Court area in a car he had borrowed. Riley was armed with a nine millimeter Glock handgun. Mack was armed with a nine millimeter Taurus. As the 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.

         ‘‘After 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.

         ‘‘On June 7, 2006, the defendant agreed to speak with members of the Hartford Police Department, and he provided them with information about the shooting. He told the officers about the planning of the shooting, the types of firearms used and where they could be found.

         He also told them how the vehicle used in the shooting later was set on fire. The defendant, however, did not disclose his involvement in the shooting until almost three years later, in May, 2009, when he again spoke to the police and provided a written statement.

         ‘‘After providing a written statement to the police, the defendant was charged [inter alia] with and later convicted of accessory to murder . . . .'' Id., 460-61; see also footnote 1 of this opinion. Additional facts will be set forth as necessary.

         The defendant claims, with respect to his conviction of accessory to murder, that the trial court improperly instructed the jury that it was not necessary for the state to prove that he intended to kill the victim to find him guilty of accessory to murder. The defendant concedes that he waived this claim pursuant to State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011). He argues, however, this instruction was ‘‘plain error and failure to ...


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