5.4-1 Felony Murder -- § 53a-54c
Revised to November 6, 2014
Note: The court should instruct the jury on the charged underlying felony prior to this instruction.
The defendant is charged [in count ___] with felony murder. The statute defining this offense reads in pertinent part as follows:
a person is guilty of murder when, acting either alone or with one or more persons, (he/she) commits or attempts to commit <insert one of the following:>
sexual assault in the first degree,
aggravated sexual assault in the first degree,
sexual assault in the third degree,
sexual assault in the third degree with a firearm,
escape in the first degree,
escape in the second degree,
and, in the course of and in furtherance of such crime or of flight therefrom, (he/she), or another participant, if any, causes the death of a person other than one of the participants.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Committed a felony
The first element is that the defendant, acting alone or with one or more other persons, committed or attempted to commit the crime of <insert underlying felony and instruct on the elements of that offense>1 If you find the defendant guilty of <insert underlying felony> in count <insert number of count charging underlying felony>, then this element of felony murder will be proven.
Element 2 - Caused the death of
The second element is that the actions of the defendant or another participant in the crime of <insert underlying felony and instruct on the elements of that offense.>1.
Element 3 - In the course of
committing a felony
The third element is that the defendant or another participant caused the death of <insert name of decedent> while in the course of, and in furtherance of, the commission or attempted commission of the crime of <insert underlying felony>, or, in immediate flight from the crime. This means that the death occurred during the commission of the <insert underlying felony> and in the course of carrying out its objective.
"In the course of the commission" of the <insert underlying felony> means during any part of the defendant's participation in the <insert underlying felony>. The phrase "in the course of the commission" is a time limitation and means conduct occurring immediately before the commission, during the commission or in the immediate flight after the commission of the <insert underlying felony>. The immediate murder of a person to eliminate a witness to the crime or to avoid detection is also "in the course of the commission." Thus, the death of <insert name of decedent> must have occurred somewhere within the time span of the occurrence of the facts which constitute the <insert underlying felony>.
"In furtherance of" the <insert underlying felony> means that the killing must in some way be causally connected to or as a result of the <insert underlying felony>, or the flight from the <insert underlying felony>. The actions of the defendant that caused the death of <insert name of decedent> must be done to aid the <insert underlying felony> in some way or to further the purpose of the <insert underlying felony>.
It does not matter that the act that caused the death was committed unintentionally or accidentally, rather than with the intention to cause death, nor does it matter if the death was the result of <insert name of decedent>'s fear or flight. The defendant is as guilty when committing this form of murder as (he/she) would be if (he/she) had intentionally committed the act that caused the death.
Element 4 - Victim was not a
The fourth element is that <insert name of decedent> was not a participant in the <insert underlying felony>. A participant is one who takes part or shares in the underlying crime.
In summary, the state must prove beyond a reasonable doubt that 1) the defendant, acting alone or with one or more other persons, committed or attempted to commit <insert underlying felony>, 2) the defendant or another participant in the <insert underlying felony> caused the death of <insert name of decedent>, 3) the defendant or another participant in the <insert underlying felony> caused the death while in the course of, and in furtherance of, the commission or attempted commission of the <insert underlying felony>, or, in immediate flight from the crime, and 4) <insert name of decedent> was not a participant in the crime of <insert underlying felony>.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of felony
murder, then you shall find the defendant guilty. On the other hand, if you
unanimously find that the state has failed to prove beyond a reasonable doubt
any of the elements, you shall then find the defendant not guilty.
1 If the underlying felony is charged in another count, the court may refer the jury to that count. If the underlying felony is an attempt crime, the court must instruct the jury on the definition of criminal attempt. Small v. Commissioner of Correction, 286 Conn. 707, 727 (2008). See Attempt -- § 53a-49 (a) (1), Instruction 3.2-1 and Attempt -- § 53a-49 (a) (2), Instruction 3.2-2.
"'Felony murder occurs when, in the course of and in furtherance of another crime, one of the participants in that crime causes the death of a person who is not a participant in the crime. . . . The two phrases, 'in the course of' and 'in furtherance of,' limit the applicability of the statute with respect to time and causation." (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 733 (2000).
The phrase "in the course of" focuses on the temporal relationship between the murder and the underlying felony and includes the period immediately before or after the actual commission of the crime. State v. Montgomery, supra, 254 Conn. 734 (kidnapping did not end until victim's death); State v. Gomez, 225 Conn. 347, 351 (1993) (kidnapping does not end until victim's liberty is restored).
The phrase "in furtherance of" requires that there be a "logical nexus between the felony and the homicide." State v. Young, 191 Conn. 636, 641 (1983). "All who join in a common design to commit an unlawful act, the natural and probable consequence of the execution of which involves the contingency of taking human life, are responsible for a homicide committed by one of them while acting in pursuance of, or in furtherance of, the common design." (Emphasis in original; internal quotation marks omitted.) Id., 642. "In addition to its function in defining the scope of accomplice liability, the 'in furtherance' phrase also may serve, where only a single actor is involved, to exclude those murders which, while committed during the course of an underlying felony, are wholly unrelated to the commission of that crime." Id., 643. See State v. Montgomery, supra, 254 Conn. 694 (kidnapping); State v. Cooke, supra, 89 Conn. App. 543-44 (armed robbery); State v. Gayle, 64 Conn. App. 596, 612, cert. denied, 258 Conn. 920 (2001) (armed robbery).
Section "53a-54c contains no mens rea requirement beyond that of an intention to commit the underlying felony upon which the felony murder charge is predicated." State v. Valeriano, 191 Conn. 659, 662 (1983), cert. denied, 466 U.S. 974, 104 S.Ct. 2351, 80 L.Ed.2d 824 (1984); see also State v. Kyles, 221 Conn. 643, 667-68 (1992); State v. Adorno, 45 Conn. App. 187, 194, cert. denied, 242 Conn. 904 (1997).
As a matter of law, self-defense is not available as a defense to a charge of felony murder. State v. Amado, 254 Conn. 184, 200-01 (2000); State v. Burke, 254 Conn. 202, 205 (2000); State v. Lewis, 245 Conn. 779, 812 (1998). This "holding is consistent with the purpose underlying felony murder, which is to punish those whose conduct brought about an unintended death in the commission or attempted commission of a felony . . . . The felony murder rule includes accidental, unintended deaths. Indeed, we have noted that crimes against the person like robbery, rape and common-law arson and burglary are, in common experience, likely to involve danger to life in the event of resistance by the victim. . . . Accordingly, when one kills in the commission of a felony, that person cannot claim self-defense, for this would be fundamentally inconsistent with the very purpose of the felony murder [statute]. . . ." (Citations omitted; internal quotation marks omitted.) State v. Amado, supra, 254 Conn. 201.
"[T]he legislature did not intend that extreme emotional disturbance be an affirmative defense if the sole crime with which a defendant is charged is felony murder." (Emphasis in original.) State v. Chicano, 216 Conn. 699, 716-17 (1990), cert. denied, 501 U.S. 1254, 111 S. Ct. 2898, 115 L. Ed. 2d 1062 (1991).
The sole affirmative defense available to a charge of felony murder is that specified in General Statutes § 53-54c. State v. Chicano, supra, 216 Conn. 717. See Affirmative Defense to Felony Murder, Instruction 5.4-2.
Lesser included offenses
Manslaughter is not a lesser included offense of felony murder, because manslaughter requires the showing of a culpable state of mind, which felony murder does not. State v. Castro, 196 Conn. 421, 429 (1985).
A defendant who produces enough evidence to support an instruction on the affirmative defense to felony murder, may also be entitled to a lesser included instruction of the underlying felony. In State v. Bond, 201 Conn. 34 (1986), the defendants claimed that although they agreed to commit the robbery, they did not know that their accomplice was armed with a knife and willing to use it. Without the lesser included charges, the jury was left with "the extreme alternatives of finding the defendants guilty of felony murder or acquitting them outright." Id., 39. Similarly, in State v. Green, 207 Conn. 1 (1988), the defendant did not claim the affirmative defense, but because he introduced sufficient evidence that he terminated involvement in the underlying crime of robbery, he was entitled to an instruction on attempted robbery as a lesser included offense of felony murder.
Felony murder cannot be the predicate crime to a charge of capital felony. State v. Johnson, 241 Conn. 702, 713-14 (1997); State v. Harrell, 238 Conn. 828, 839 (1996).