2.11-2 Lesser Included Offenses
Revised to December 1, 2007 (modified May 23, 2013)
Note: This instruction provides a basic structure for instructing on lesser included offenses.
The defendant is charged [in count ___] with <insert charged or greater offense>.
<Instruct on the elements of the greater offense.>
If you have unanimously found the defendant not guilty of the crime of <insert greater offense>, you shall then consider the lesser offense of <insert the first lesser included offense>. Do not consider the lesser offense unless and until you have unanimously acquitted the defendant of the greater offense.
<Instruct on the elements of the first lesser included offense.>
If you have unanimously found the defendant not guilty of the crime of <insert previous offense>, you shall then consider the lesser offense of <insert the next lesser included offense>. Do not consider this offense unless and until you have unanimously acquitted the defendant of <insert previous offense>.
<Instruct on the elements of the next lesser included offense.>
<Repeat until jury is instructed on all lesser included offenses.>
An "acquittal first" instruction is mandated by State v. Sawyer, 227 Conn. 566 (1993). This means that "the court must direct the jury to reach a unanimous decision on the issue of guilt or innocence of the charged offense before going on to consider the lesser included offenses." Id., 579. See also State v. Alonzo, 131 Conn. App. 1, cert. denied, 303 Conn. 912 (2011) (applying a state constitutional analysis to the acquit first rule).
"[I]n close cases, the trial court
should generally opt in favor of giving an instruction on a lesser included
offense, if it is requested. . . . Otherwise the defendant would lose the right
to have the jury pass upon every factual issue fairly presented by the
evidence." (Internal quotation marks omitted.) State v. Tomasko, 238
Conn. 253, 261 (1996). "[I]t is settled that a jury should be given the entire
range of possible verdicts in a case in which the evidence warrants the giving
of the lesser included offenses, [and] it follows that defenses that are
supported by a reasonable construction of the evidence should be given along
with those same lesser charges." (Internal quotation marks omitted.) State
v. Hall, 213 Conn. 579, 588 (1990).
If the jury convicts the defendant of "greater and lesser offenses, the trial court must vacate the conviction for the lesser offense rather than merging the convictions." State v. Polanco, 308 Conn. 242, 245 (2013).
"A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser." State v. Whistnant, 179 Conn. 576, 588 (1980).
First prong - proper
The first prong is satisfied if the request complies with Practice Book § 42-18. It may also be satisfied "when the record indicates that the trial court knew the precise point to which the defendant wished to call attention. . . . Indeed, even partial compliance with § 42-18, accompanied by substantial additional support in the record from either party, such as detailed colloquies with the court and opposing counsel and a postcharge exception, will also satisfy the first prong of Whistnant. This is true as long as the trial court is informed adequately of the factual and legal basis for the instructional request." (Citations omitted; internal quotation marks omitted.) State v. Smith, 262 Conn. 453, 466 (2003); see also State v. Colon, 272 Conn. 106, 224 n.78 (2004). For cases upholding the trial court's refusal to instruct on a lesser included offense due to the inadequacy of the request, see State v. Arreaga, 75 Conn. App. 521 (2003) (request contained only a general statement of facts and citations to the relevant statutes); State v. Corbin, 260 Conn. 730, 746-47 (2002) (request confusing because charges not separated into separate paragraphs).
Second prong - cognate
The second prong of Whistnant "encompasses the cognate pleadings approach . . . [which] does not insist that the elements of the lesser offense be a subset of the higher offense. It is sufficient that the lesser offense have certain elements in common with the higher offense, which thereby makes it a 'cognate' or 'allied' offense even though it also has other elements not essential to the greater crime. [In addition], the relationship between the offenses is determined not by a comparison of statutory elements in the abstract, but by reference to the pleadings in the case. The key ordinarily is whether the allegations in the pleading charging the higher offense . . . include all of the elements of the lesser offense." (Internal quotation marks omitted.) State v. Tomlin, 266 Conn. 608, 618 (2003).
"[O]ne crime is not a lesser included offense of another if the greater can be committed without a simultaneous commission of the lesser." (Emphasis in original.) State v. Fuller, 56 Conn. App. 592, 605, cert. denied, 252 Conn. 949, cert. denied, 531 U.S. 911, 121 S. Ct. 262, 148 L. Ed. 2d 190 (2000). "[T]he lesser offense must not require any element which is not needed to commit the greater offense in the manner alleged in the information or the bill of particulars." Id., 603. "Under the second prong of Whistnant, we must look only to the information and cannot resort to the evidence." Id., 607 n.20.
Third prong -
"[I]n order to meet the third prong of the Whistnant test, there must be sufficient evidence, introduced by either the state or the defendant, or by a combination of their proofs, to justify a finding of guilt of the lesser offense." State v. Rasmussen, 225 Conn. 55, 67-68 (1993) (finding that the evidence, if believed, compelled the conclusion that the defendant intended to kill the victim, so he was not entitled to instruction on manslaughter). See also State v. Arena, 235 Conn. 67, 78-79 (1995) (no evidence to support instruction on robbery 2nd); State v. Sivri, 231 Conn. 115, 138-39 (1994) (sufficient evidence that defendant may not have had the intent to kill); State v. Solek, 66 Conn. App. 72, 83-85, cert. denied, 258 Conn. 941 (2001) (insufficient evidence that defendant intended anything other than to kill victim).
Fourth prong - issue
"[E]vidence of the differentiating element is 'sufficiently in dispute' where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense." (Internal quotation marks omitted.) State v. Preston, 248 Conn. 472, 477-78 (1999) (no evidence to support the inference that use of force was in furtherance of escape only rather than robbery); State v. Rozmyslowicz, 52 Conn. App. 149, 157 (1999) (evidence of larcenous intent not sufficiently in dispute to permit lesser included offense of using motor vehicle without permission); State v. Ray, 228 Conn. 147, 152-58 (1993) (defendant's state of mind sufficiently in dispute to entitle him to instruction on criminally negligent homicide); State v. Montanez, 219 Conn. 16, 23-24 (1991) (jury could not have reasonably concluded that the defendant acted recklessly rather than intentionally); State v. Solek, supra, 66 Conn. App. 85 (element of intent not sufficiently in dispute); State v. Reed, 56 Conn. App. 428, 433-36, cert. denied, 252 Conn. 945 (2000) (no reasonable doubt that money was taken by the defendant).
In some cases, there may be two or more lesser included offenses that are not related to one another as lesser or greater offenses. For example, manslaughter in the first degree pursuant to § 53a-55 (a) (1) and manslaughter in the first degree pursuant to § 53a-55 (a) (3) are both lesser included offenses of murder, and may both be given if the evidence warrants, but manslaughter under subsection (a) (3) is not a lesser included offense of manslaughter under subsection (a) (1). See State v. Maselli, 182 Conn. 66, 72 (1980), cert. denied, 449 U.S. 1083, 101 S.Ct. 868, 66 L.Ed.2d 807 (1981); State v. Billie, 47 Conn. App. 678, 687 (1998). Use caution when instructing the jury in this situation. State v. Dyson, 217 Conn. 498, 503 (1991), suggests that an acquittal first instruction may be "inaccurate."
"[State v.] Sawyer[, 227 Conn. 566 (1993),] and the guarantees provided by the double jeopardy clause dictate that: (1) it is a valid verdict for the jury to acquit the accused of a greater offense and only thereafter to reach a deadlock on a lesser offense; (2) such a valid verdict must be accepted; and, finally, (3) the failure to accept that valid verdict would violate the constitutional protection against double jeopardy." State v. Tate, 256 Conn. 262, 284-85 (2001).
If the defendant requests the court to conduct an inquiry as to whether the jury has reached a partial verdict, the court is obligated to do so prior to declaring a mistrial. Id, 286-87. The court, however, has no duty to sua sponte inquire. Id., 286 n.16. It may be the better practice to ask, because if it is unknown which of the charges the jury is deadlocked on, the defendant may only be retried after mistrial on the least of the offenses. Id., 288-89.
If the jury deadlocks on the
greater offense, the trial court must declare a mistrial as to both the greater
and the lesser included offenses. State v. Salgado, 257 Conn. 394, 407