Revised to November 1, 2008 (modified May 20, 2011)
NOTE: This statute does not define a separate crime, but a separate theory of liability. It should be included in the instruction defining the substantive offense, following the elements of that offense. If the state presents alternative theories of vicarious liability, the jury must be unanimous. See Introduction to Vicarious Liability.
When the defendant is charged only as an accessory, the court, in explaining the elements of the underlying crime, should refer to the fact that the underlying crime was committed by the principal offender rather than the defendant.
A person is criminally liable for a criminal act if (he/she) directly commits it or if (he/she) is an accessory in the criminal act of another. The statute defining accessorial liability reads in pertinent part as follows:
a person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if (he/she) were the principal offender.
This statute does not connect those five acts specified with the word "and" but separates them by the word "or." A person is an accessory if (he/she) solicits or requests or commands or importunes or intentionally aids another person to engage in conduct that constitutes an offense. "Solicit" means to tempt or to entice someone to do wrong; "importune" means to demand or urge; "aid" means to assist, help or support. A person acts "intentionally" with respect to a result when (his/her) conscious objective is to cause such result. "Intentionally aid," therefore, means to act in any manner, the conscious objective of which is to assist, help or support. <See Intent: Specific, Instruction 2.3-1.>
If the defendant did any of these things as specified in the statute, (he/she) is guilty of <insert substantive crime> as though (he/she) had directly committed it or participated in its commission. To establish the guilt of a defendant as an accessory for assisting in the criminal act of another, the state must prove criminality of intent and community of unlawful purpose.1 That is, for the defendant to be guilty as an accessory, it must be established that (he/she) acted with the mental state necessary to commit <insert substantive crime>, and that in furtherance of that crime, (he/she) solicited, requested, commanded, importuned or intentionally aided the principal to commit <insert substantive crime>.
Evidence of mere presence as an inactive companion, or passive acquiescence, or the doing of innocent acts which, in fact, aid in the commission of a crime, is insufficient to find the defendant guilty as an accessory under the statute. Nevertheless, it is not necessary to prove that the defendant was actually present or actively participated in the actual commission of the crime of <insert substantive crime>.
[<If charged only as an accessory:> The rule is that a person who solicits, requests, commands, importunes or intentionally aids in the commission of a crime is guilty of that very crime. Thus, for you to find the defendant guilty of this charge, you must unanimously find that the state has proved beyond a reasonable doubt that the defendant assisted another to commit the crime of <insert substantive crime>. You must also unanimously find beyond a reasonable doubt that the defendant had the intent to commit the crime charged and did solicit, request, command, importune or intentionally aid another in the commission of the crime of <insert charged crime>.]
[<If charged as either an accessory or principal:> For you to find the defendant guilty of this charge, you must unanimously find that the state has proved all the elements of <insert substantive crime> beyond a reasonable doubt. If you conclude that the defendant is guilty as a principal or as an accessory, you do not need to be unanimous regarding whether you believe (he/she) was a principal or accessory as long as all (six / twelve) jurors agree that at least one method (i.e., principal or accessory) has been proved beyond a reasonable doubt.]
<If also charged under a theory of Pinkerton liability, see Vicarious Liability under Pinkerton, Instruction 3.1-3.>
1 Do not include language suggestive of theories of criminal enterprise or conspiracy because it may mislead the jury that it could find the defendant guilty as an accessory without the requisite intent. State v. Lopez, 280 Conn. 779, 820-23 (2007); State v. Diaz, 237 Conn. 518, 534-41 (1996).
"Under the modern accessory statute, there is no such crime as being an accessory. . . . The accessory statute merely provides alternate means by which a substantive crime may be committed." State v. Montanez, 277 Conn. 735, 755-56 (2006); State v. Gamble, 27 Conn. App. 1, 9, cert. denied, 222 Conn. 901 (1992). A person may be charged as an accessory even if the principal is not charged or is acquitted of the same crime. State v. Santiago, 275 Conn. 192, 204 (2005); State v. Paredes, 35 Conn. App. 360, 369-74, cert. denied, 231 Conn. 925 (1994).
To solicit, request, command, importune or intentionally aid "requires only an asking or insistence that an act be done." State v. Harris, 32 Conn. App. 831, 841 (1993), appeal dismissed, 230 Conn. 347 (1994). Although the accused must be more than a mere inactive companion, "passive behaviors engaged in with the intent to facilitate the commission of a crime are sufficient to support a finding of accessory liability." State v. Conde, 67 Conn. App. 474, 486 (2001), cert. denied, 259 Conn. 927 (2002).
Instructing the jury on accessorial liability is proper when there is evidence that more than one person shot at the victim, but it cannot be concluded which of the shots was fatal. State v. Fruean, 63 Conn. App. 466, 472-73, cert. denied, 257 Conn. 908 (2001); State v. Bagley, 35 Conn. App. 138, 142-43, cert. denied, 231 Conn. 913 (1994). In State v. Delgado, 247 Conn. 616, 627 (1999), the Supreme Court approved a supplemental instruction that read: "Where it cannot be determined who fired the fatal shot, beyond a reasonable doubt, the element of murder as to who caused the death has not been proved beyond a reasonable doubt. However, persons acting with the mental state required for commission of murder, who intentionally aid one another to engage in . . . such conduct, and cause the death, are accessories to one another, and would be criminally liable for such conduct as accessories to murder."
A conviction under § 53a-8 requires proof of a dual intent: the intent to aid the principal and the intent to commit the offense. State v. Santiago, supra, 275 Conn. 199 n.13; State v. Garner, 270 Conn. 458, 475 (2004); State v. Foster, 202 Conn. 520, 525-26 (1987). "Mere presence as an inactive companion, passive acquiescence, or the doing of innocent acts which may in fact aid the one who commits the crime must be distinguished from the criminal intent and community of unlawful purpose shared by one who knowingly and willfully assists the perpetrator of the offense in the acts which prepare for, facilitate or consummate it." (Internal quotation marks omitted.) Id., 531
The Connecticut Supreme Court has not adopted, or expressly rejected, the portion of the Model Penal Code that allows an accessory to be convicted of a different offense or degree of offense than the principal if the accessory had a different mental state. State v. Floyd, 253 Conn. 700, 722-23 (2000).
The doctrine of transferred intent applies to accomplice liability for murder. State v. Henry, 253 Conn. 354, 363 (2000).
Because the state must prove, under a theory of accessorial liability pursuant to § 53a-8 (a), that the defendant had the same intent to commit the crime as the principle and intentionally acted in furtherance of the crime, there is no requirement that the jury be unanimous as to principal or accessory. State v. Correa, 241 Conn. 322, 398 (1997).
Use of a firearm
Under the terms of the statute, the accessory is prosecuted and punished "as if he were the principle." Accordingly, once convicted of a felony committed with a firearm, the accessory may be subject to the enhanced sentence under § 53-202k, even though only the principle actually used the firearm. State v. Davis, 255 Conn. 782, 787-93 (2001). In addition, crimes that have the use of a firearm as an aggravating factor do not require that the accessory have the intent that the principle use a firearm. State v. Gonzalez, 300 Conn. 490, 503-509 (2011). State v. Correa, 241 Conn. 322, 398 (1997).
If also charged with conspiracy
A defendant may be convicted of conspiracy to commit a crime and the commission of that crime as a principal or accessory. State v. Green, 81 Conn App. 152, 158, cert. denied, 268 Conn. 909 (2004) (defendant convicted of sale of narcotics as an accessory and conspiracy to sell narcotics); State v. Soto, 59 Conn. App. 500, 503-505, cert. denied, 254 Conn. 950 (2000) (not inconsistent for defendant to be convicted of murder as accessory and acquitted of conspiracy).
If charged as
a principal only
"[D]ue process considerations preclude a court from instructing a jury that it may convict a defendant under a theory of accessorial liability in certain circumstances. Inherent in the constitutional mandate that a defendant be advised of the 'nature and cause' of the accusations against him is that the defendant be on notice of the nature of the state's prosecution. The state cannot present its case on the theory of principal liability and then, without providing notice to the defendant, seek near the conclusion of the trial to convict the defendant under a theory of accessorial liability." State v. Vasquez, 68 Conn. App. 194, 215 (2002); see also State v. Correa, 241 Conn. 322, 340-45 (1997) (state presented sufficient evidence to establish accessorial liability); State v. Steve, 208 Conn. 38 (1988) (defense prejudiced when the bill of particulars alleged that the defendant was the principal and the state presented no evidence that could support accessorial liability); State v. Hines, 89 Conn. App. 440, cert. denied, 275 Conn. 904 (2005) (evidence presented provided defendant sufficient notice that state would seek conviction as an accessory).
See Renunciation of Criminal Purpose (Accessory), Instruction 3.1-2.
Since the commission of a crime is
an essential condition precedent to the imposition of accessorial liability for
that crime, if the actions of the principal are found to be justified, then no
crime has been committed by either party. Hence, if a justification defense is
available to the principal, the accessory can also assert it. State v.
Montanez, 277 Conn. 735, 751-63 (2006).