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5.4-2 Affirmative Defense to Felony Murder -- § 53a-54c
Revised to December 1, 2007
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" is
defined by statute as 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.
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).