History of the Connecticut Judicial Seal Home Home BannerBanner

 

 


 

 

 

 

 

   
Criminal Jury Instructions

Criminal Jury Instructions Home

5.4-2  Affirmative Defense to Felony Murder -- § 53a-54c

Revised to April 23, 2010

The evidence in this case raises what the law calls an affirmative defense.  <See Affirmative Defense, Instruction 2.9-1.>

The defendant claims that that (he/she) did not participate in the homicidal act and had no reason to foresee that any of the other participants in the <insert underlying felony> intended to engage in conduct likely to result in death or serious physical injury.

For you to find the defendant not guilty of this charge, the defendant  must prove the following elements by a preponderance of the evidence:

Element 1 - Did not participate in the homicidal act
The first element is that the defendant did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid in the commission of it.
 

Element 2 - Was not armed
The second element is that the defendant was not armed with a deadly weapon or any dangerous instrument.  "Deadly weapon" is defined by statute as any weapon, whether loaded or unloaded, from which a shot may be discharged, or a switchblade knife, gravity knife, billy, blackjack, bludgeon, or metal knuckles.  "Dangerous instrument"
means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury.  "Serious physical injury" means physical injury which creates a substantial risk of death, or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ.  It is important to note that the article need not be inherently dangerous; all that is required is that the article was capable of causing death or serious physical injury under the circumstances in which it was used.  Any article or substance, without limitation and even though harmless under normal use, may be found by you to be a dangerous instrument if, under the circumstances of its use or threatened or attempted use, it is capable of producing serious physical injury or death.  The state need not prove that in fact death or serious physical injury resulted, only that the instrument had that potential under the circumstances.

Element 3 - Did not believe any other participant was armed
The third element is that the defendant had no reasonable ground to believe that any other participant was armed with such a weapon or instrument.  A "reasonable ground to believe" means that a reasonable person in the defendant's situation, viewing the circumstances from the defendant's point of view, would have shared that belief.
 

Element 4 - Did not believe any other participant was likely to commit homicidal act
The fourth element is that the defendant had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.
 

Conclusion

In summary, the defendant must prove by a preponderance of the evidence that 1) (he/she) did not participate in the homicidal act in any way, 2) (he/she) was not armed, 3) (he/she) had no reasonable ground to believe that any other participant was armed, and 4) (he/she) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.

If you unanimously find that the state has failed to prove beyond a reasonable doubt any of the elements of the crime of felony murder, you shall then find the defendant not guilty and not consider (his/her) affirmative defense. 

If you unanimously find that the state has proved beyond a reasonable doubt each of the elements, then you shall consider the defendant's affirmative defense.  If you unanimously find that the defendant has proved (his/her) defense by a preponderance of the evidence, then you shall find the defendant not guilty.  If, on the other hand, you unanimously find that the defendant has not proved (his/her) affirmative defense by a preponderance of the evidence, then you shall find the defendant guilty.

Commentary

The court is not obligated to submit this defense to the jury unless there is sufficient evidence to support a finding that each of these conditions has been proved by a preponderance of the evidence.  State v. Valeriano, 191 Conn. 659, 663 (1983), cert. denied, 466 U.S. 974, 104 S. Ct. 2351, 80 L. Ed. 2d 824 (1984); State v. Small, 242 Conn. 93, 100-101 (1997).  It is not clear whether it is proper for the trial court to instruct on this affirmative defense when the state requests the instruction but the defendant objects.  See State v. Small, supra, 242 Conn. 101-102 (declining to decide issue because even if improper, instruction did not harm defendant).
 


 

Attorneys | Case Look-up | Courts | Directories | Educational Resources | E-Services | Español | FAQ's | Juror Information | Media | Opinions | Opportunities | Self-Help | Home

Common Legal Words | Contact Us | Site Map | Website Policies and Disclaimers

Copyright © 2011, State of Connecticut Judicial Branch