Pinkerton doctrine in Connecticut

2012See, e.g., State v. Young, 191 Conn. 636, 642 , 469 A.2d 1189 (1983); State v. McCarthy, 133 Conn. 171, 173 , 49 A.2d 594 (1946); State v. Rossi, [supra, 132 Conn. 44 ].

2012See, e.g., State v. Young, 191 Conn. 636, 642 , 469 A.2d 1189 (1983); State v. McCarthy, 133 Conn. 171, 173 , 49 A.2d 594 (1946); State v. Rossi, [supra, 132 Conn. 44 ].

2011"Under the Pinkerton doctrine ... a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy." (Internal quotation marks omitted.) State v. Coward, 292 Conn. 296, 307 , 972 A.2d 691 (2009). [9] The court instructed the jury as follows: "Now that I've explained the crime of conspiracy to you there is an additional instruction regarding the charge of murder as alleged in count two that I must explain to you now, and

2011"Under the Pinkerton doctrine ... a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy." (Internal quotation marks omitted.) State v. Coward, 292 Conn. 296, 307 , 972 A.2d 691 (2009). [9] The court instructed the jury as follows: "Now that I've explained the crime of conspiracy to you there is an additional instruction regarding the charge of murder as alleged in count two that I must explain to you now, and

2019He alleged that he had no knowledge of the killing at that time. "[U]nder the Pinkerton doctrine, [see Pinkerton v. United States , 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946) ], a conspirator may be found guilty of a crime that he or she did not commit if the state can establish that a coconspirator did commit the crime and that the crime was within the scope of the conspiracy, in furtherance of the conspiracy, and a reasonably foreseeable consequence of the conspiracy." (Emphasis omitted; internal quotation marks omitted.) State v. Taylor , 177 Conn. App. 18 , 20 n.1, 171 A.3d 1061 (

2019He alleged that he had no knowledge of the killing at that time. "[U]nder the Pinkerton doctrine, [see Pinkerton v. United States , 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946) ], a conspirator may be found guilty of a crime that he or she did not commit if the state can establish that a coconspirator did commit the crime and that the crime was within the scope of the conspiracy, in furtherance of the conspiracy, and a reasonably foreseeable consequence of the conspiracy." (Emphasis omitted; internal quotation marks omitted.) State v. Taylor , 177 Conn. App. 18 , 20 n.1, 171 A.3d 1061 (

2019He alleged that he had no knowledge of the killing at that time. "[U]nder the Pinkerton doctrine, [see Pinkerton v. United States , 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946) ], a conspirator may be found guilty of a crime that he or she did not commit if the state can establish that a coconspirator did commit the crime and that the crime was within the scope of the conspiracy, in furtherance of the conspiracy, and a reasonably foreseeable consequence of the conspiracy." (Emphasis omitted; internal quotation marks omitted.) State v. Taylor , 177 Conn. App. 18 , 20 n.1, 171 A.3d 1061 (

2019He alleged that he had no knowledge of the killing at that time. "[U]nder the Pinkerton doctrine, [see Pinkerton v. United States , 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 (1946) ], a conspirator may be found guilty of a crime that he or she did not commit if the state can establish that a coconspirator did commit the crime and that the crime was within the scope of the conspiracy, in furtherance of the conspiracy, and a reasonably foreseeable consequence of the conspiracy." (Emphasis omitted; internal quotation marks omitted.) State v. Taylor , 177 Conn. App. 18 , 20 n.1, 171 A.3d 1061 (

2020After the trial court furnished what has come to be known as a Pinkerton instruction in its charge; see, e.g., United States v. Diaz, 176 F.3d 52, 100 (2d Cir. 1999); State v. Brown, 299 Conn. 640 , 657–59, 11 A.3d 663 (2011); ‘‘[t]he question was submitted to the jury on the theory that each [defendant] could be found guilty of the substan- tive offenses, if it was found at the time those offenses were committed [that the] [defendants] were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.’’ Pinkerton v. United States, supra, 6

2020After the trial court furnished what has come to be known as a Pinkerton instruction in its charge; see, e.g., United States v. Diaz, 176 F.3d 52, 100 (2d Cir. 1999); State v. Brown, 299 Conn. 640 , 657–59, 11 A.3d 663 (2011); ‘‘[t]he question was submitted to the jury on the theory that each [defendant] could be found guilty of the substan- tive offenses, if it was found at the time those offenses were committed [that the] [defendants] were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in furtherance of it.’’ Pinkerton v. United States, supra, 6

2012The defendant concedes that he did not object to the charge and therefore seeks to prevail under State v. Golding, 213 Conn. 233, 239-40 , 567 A.2d 823 (1989), or the plain error doctrine. 4 We *392 agree that the defendant’s unpreserved claim is of constitutional magnitude and therefore he is entitled to Golding review; see State v. Coltherst, 263 Conn. 478, 490 , 820 A.2d 1024 (2003); but we conclude that the claim fails on the merits.

2012The defendant concedes that he did not object to the charge and therefore seeks to prevail under State v. Golding, 213 Conn. 233, 239-40 , 567 A.2d 823 (1989), or the plain error doctrine. 4 We *392 agree that the defendant’s unpreserved claim is of constitutional magnitude and therefore he is entitled to Golding review; see State v. Coltherst, 263 Conn. 478, 490 , 820 A.2d 1024 (2003); but we conclude that the claim fails on the merits.

2005“Under the Pinkerton doctrine ... a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” (Citation omitted; internal quotation marks omitted.) State v. Garner, 270 Conn. 458, 484 , 853 A.2d 478 (2004).

2005“Under the Pinkerton doctrine ... a conspirator may be held liable for criminal offenses committed by a coconspirator that are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.” (Citation omitted; internal quotation marks omitted.) State v. Garner, 270 Conn. 458, 484 , 853 A.2d 478 (2004).

2004II THE DEFENDANT'S APPEAL A The defendant first claims that the trial court improperly instructed the jury that it could convict the defendant of a capital felony based on conspiratorial liability under Pinkerton v. United States, supra, 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 . [17] *829 Specifically, the defendant argues that the instruction was erroneous because: (1) this court's decisions in State v. Harrell, 238 Conn. 828 , 681 A.2d 944 (1996), and State v. Johnson, 241 Conn. 702 , 699 A.2d 57 (1997), preclude a trial court from instructing a jury that it may use the doctrine of Pink

2004II THE DEFENDANT'S APPEAL A The defendant first claims that the trial court improperly instructed the jury that it could convict the defendant of a capital felony based on conspiratorial liability under Pinkerton v. United States, supra, 328 U.S. 640 , 66 S.Ct. 1180 , 90 L.Ed. 1489 . [17] *829 Specifically, the defendant argues that the instruction was erroneous because: (1) this court's decisions in State v. Harrell, 238 Conn. 828 , 681 A.2d 944 (1996), and State v. Johnson, 241 Conn. 702 , 699 A.2d 57 (1997), preclude a trial court from instructing a jury that it may use the doctrine of Pink

2022He argued that, ‘‘without a specific unanimity instruction, it is unclear whether . . . the petitioner was [found] guilty under the direct theory of liability, as opposed to the theory of transferred intent, or on the coconspiratorial theory under the Pinkerton doctrine.’’4 The court denied the petitioner’s motion.5 At the habeas trial, the petitioner reiterated his argu- ment that the criminal trial court erred in failing to instruct the jury that it must be unanimous ‘‘as to whether the petitioner was guilty under the direct the- ory of liability, as opposed to the theory of transferred inte

2022He argued that, ‘‘without a specific unanimity instruction, it is unclear whether . . . the petitioner was [found] guilty under the direct theory of liability, as opposed to the theory of transferred intent, or on the coconspiratorial theory under the Pinkerton doctrine.’’4 The court denied the petitioner’s motion.5 At the habeas trial, the petitioner reiterated his argu- ment that the criminal trial court erred in failing to instruct the jury that it must be unanimous ‘‘as to whether the petitioner was guilty under the direct the- ory of liability, as opposed to the theory of transferred inte

2021It found him guilty of the kidnapping charge as a princi- pal or accessory and guilty of the assault and sexual assault charges as a coconspirator under Pinkerton.21 B ‘‘[T]o obtain a new trial on the basis of newly discov- ered evidence, the petitioner must establish that the newly proffered evidence (1) is actually newly discov- ered, (2) would be material in a new trial, (3) is not merely cumulative, and (4) would probably produce a different result in a new trial.’’ Jones v. State, 328 Conn. 84, 92 , 177 A.3d 534 (2018), citing Asherman v. State, 202 Conn. 429, 434 , 521 A.2d 578 (1987). ‘

2021It found him guilty of the kidnapping charge as a princi- pal or accessory and guilty of the assault and sexual assault charges as a coconspirator under Pinkerton.21 B ‘‘[T]o obtain a new trial on the basis of newly discov- ered evidence, the petitioner must establish that the newly proffered evidence (1) is actually newly discov- ered, (2) would be material in a new trial, (3) is not merely cumulative, and (4) would probably produce a different result in a new trial.’’ Jones v. State, 328 Conn. 84, 92 , 177 A.3d 534 (2018), citing Asherman v. State, 202 Conn. 429, 434 , 521 A.2d 578 (1987). ‘

2021It found him guilty of the kidnapping charge as a princi- pal or accessory and guilty of the assault and sexual assault charges as a coconspirator under Pinkerton.21 B ‘‘[T]o obtain a new trial on the basis of newly discov- ered evidence, the petitioner must establish that the newly proffered evidence (1) is actually newly discov- ered, (2) would be material in a new trial, (3) is not merely cumulative, and (4) would probably produce a different result in a new trial.’’ Jones v. State, 328 Conn. 84, 92 , 177 A.3d 534 (2018), citing Asherman v. State, 202 Conn. 429, 434 , 521 A.2d 578 (1987). ‘

2021It found him guilty of the kidnapping charge as a princi- pal or accessory and guilty of the assault and sexual assault charges as a coconspirator under Pinkerton.21 B ‘‘[T]o obtain a new trial on the basis of newly discov- ered evidence, the petitioner must establish that the newly proffered evidence (1) is actually newly discov- ered, (2) would be material in a new trial, (3) is not merely cumulative, and (4) would probably produce a different result in a new trial.’’ Jones v. State, 328 Conn. 84, 92 , 177 A.3d 534 (2018), citing Asherman v. State, 202 Conn. 429, 434 , 521 A.2d 578 (1987). ‘

2021It found him guilty of the kidnapping charge as a princi- pal or accessory and guilty of the assault and sexual assault charges as a coconspirator under Pinkerton.21 B ‘‘[T]o obtain a new trial on the basis of newly discov- ered evidence, the petitioner must establish that the newly proffered evidence (1) is actually newly discov- ered, (2) would be material in a new trial, (3) is not merely cumulative, and (4) would probably produce a different result in a new trial.’’ Jones v. State, 328 Conn. 84, 92 , 177 A.3d 534 (2018), citing Asherman v. State, 202 Conn. 429, 434 , 521 A.2d 578 (1987). ‘

2021It found him guilty of the kidnapping charge as a princi- pal or accessory and guilty of the assault and sexual assault charges as a coconspirator under Pinkerton.21 B ‘‘[T]o obtain a new trial on the basis of newly discov- ered evidence, the petitioner must establish that the newly proffered evidence (1) is actually newly discov- ered, (2) would be material in a new trial, (3) is not merely cumulative, and (4) would probably produce a different result in a new trial.’’ Jones v. State, 328 Conn. 84, 92 , 177 A.3d 534 (2018), citing Asherman v. State, 202 Conn. 429, 434 , 521 A.2d 578 (1987). ‘

2017See State v. Diaz , 302 Conn. 93 , 102-104, 25 A.3d 594 (2011) ; see also State v. Arroyo , 292 Conn. 558 , 564-70, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911 , 130 S.Ct. 1296 , 175 L.Ed. 2d 1086 (2010) ; State v. Patterson , 276 Conn. 452 , 465, 886 A.2d 777 (2005) ; cf. State v. Carattini , 142 Conn.App. 516 , 523-24, 73 A.3d 733 (witness was not jailhouse informant because he was not incarcerated at time of testimony and did not testify about confession or inculpatory statements made at time when both were incarcerated together), cert. denied, 309 Conn. 912 , 69 A.3d 308 (2013).

2017See State v. Diaz , 302 Conn. 93 , 102-104, 25 A.3d 594 (2011) ; see also State v. Arroyo , 292 Conn. 558 , 564-70, 973 A.2d 1254 (2009), cert. denied, 559 U.S. 911 , 130 S.Ct. 1296 , 175 L.Ed. 2d 1086 (2010) ; State v. Patterson , 276 Conn. 452 , 465, 886 A.2d 777 (2005) ; cf. State v. Carattini , 142 Conn.App. 516 , 523-24, 73 A.3d 733 (witness was not jailhouse informant because he was not incarcerated at time of testimony and did not testify about confession or inculpatory statements made at time when both were incarcerated together), cert. denied, 309 Conn. 912 , 69 A.3d 308 (2013).

2015As noted previously, the Pinkerton doctrine stands for the proposition that a conspirator may be held ‘‘vicariously liable for the criminal offenses com- mitted by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.’’ (Internal quotation marks omitted.) State v. Santiago, 275 Conn. 192, 198 , 881 A.2d 222 (2005).

2015As noted previously, the Pinkerton doctrine stands for the proposition that a conspirator may be held ‘‘vicariously liable for the criminal offenses com- mitted by a coconspirator if those offenses are within the scope of the conspiracy, are in furtherance of it, and are reasonably foreseeable as a necessary or natural consequence of the conspiracy.’’ (Internal quotation marks omitted.) State v. Santiago, 275 Conn. 192, 198 , 881 A.2d 222 (2005).

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.

2014Moreover, the state’s failure to plead and prove the defendant’s liability under the Pinkerton doctrine undermines its reliance on this court’s decisions in State v. Cooper, 227 Conn. 417 , 426 n.5, 630 A.2d 1043 (1993), and State v. Delossantos, 211 Conn. 258, 281 , 559 A.2d 164 , cert. denied, 493 U.S. 866 , 110 S. Ct. 188 , 107 L.