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Criminal Jury Instructions

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5.5-1  Capital Felony or Murder with Special Circumstances -- 53a-54b

Revised to May 23, 2013

Note:  Any violation of 53a-54b occurring after April 25, 2012 is called a Murder with Special Circumstances rather than a Capital Felony.

Note:  There are eight circumstances under which intentional murder may be raised to capital felony or murder with special circumstances. In most cases, the defendant will be charged with murder in one count, and capital felony or murder with special circumstances in another. Thus, the following instructions refer the jury back to the instructions on the murder count. In some cases, however, such as murder of a person under sixteen years of age, it may be charged in a single count. In that case, insert the instruction on murder (Instruction 5.1-1) rather than the reference to the murder count. Also, if the charging document lists the capital felony or murder with special circumstances charge as the first count, followed by the murder count, it should be amended to list the murder charge first, as this is the order in which the charges must be proved.

This instruction is organized as follows:

Part A. Circumstances raising murder to capital felony or murder with special circumstances

            1.  Murder of a peace officer

            2.  Murder for hire

            3.  Prior conviction of murder

            4.  Under sentence of life imprisonment

            5.  Murder of a kidnapped person

            6.  Murder during a sexual assault

            7.  Multiple murders

            8.  Murder of a person under sixteen years of age

 

Part B.  Other instructions pertaining to capital felony or murder with special circumstances

            1.  Two Witness Instruction

            2.  Concluding Instruction

 

PART A.  CIRCUMSTANCES RAISING MURDER TO CAPITAL FELONY OR MURDER WITH SPECIAL CIRCUMSTANCES

1.  Murder of a peace officer -- 53a-54b (1)

The defendant is charged [in count ___] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) when that person is convicted of the murder of <insert one of the following:>

  • a member of the division of state police within the department of public safety or of any local police department,

  • a chief inspector or inspector in the division of criminal justice,

  • a state marshal who is exercising authority granted under any provision of the general statutes,

  • a judicial marshal in performance of the duties of a judicial marshal,

  • a constable who performs criminal law enforcement duties,

  • a special policeman for state property,

  • a conservation officer or special conservation officer appointed by the commissioner of environmental protection,

  • an employee of the department of correction or a person providing services on behalf of said department when such employee or person is acting within the scope of such employee's or person's employment or duties in a correctional institution or facility and the actor is confined in such institution or facility,

  • or any firefighter,

while (he/she) was acting within the scope of (his/her) duties.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of murder
The first element is that the defendant was convicted of murder.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging murder> which I have already instructed you on.  If you find the defendant guilty of murder in count <insert number of count charging murder>, then this element will be proven.
 

Element 2 - Identity of decedent
The second element is that <insert name of decedent> was <insert appropriate title>.
 

Element 3 - Within the scope of duties
The third element is that <insert name of decedent> was acting in the discharge of (his/her) official duties as a[n] <insert appropriate title> at the time.  Acting within the scope of (his/her) duties broadly encompasses any activity that falls within the officer's official duties.  A[n] <insert appropriate title> has the duty to <insert description of officer's duties>.  Whether (he/she) is acting in the performance of (his/her) duty must be determined in the light of that purpose and duty.  If (he/she) is acting under a good faith belief that (he/she) is carrying out that duty, and if (his/her) actions are reasonably designed to that end, (he/she) is acting in the performance of (his/her) duties. Thus, this element requires evidence establishing that the <insert appropriate title> had been performing (his/her) official duties in good faith at the time of the commission of the murder.
1 

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant murdered <insert name of decedent>, 2) <insert name of decedent> was  <insert appropriate title>, and 3) <insert name of decedent> was acting within the scope of (his/her) duties.

<Insert Concluding Instruction.  See below.>

2.  Murder for hire -- 53a-54b (2)

Note:  The defendant may be charged as either the person committing the murder (see subsection (a)) or the person hiring another person to commit the murder (see subsection (b)). 

a.  Defendant charged with committing the murder

The defendant is charged [in count ___] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a capital felony when that person is convicted of murder and was hired to commit the murder for pecuniary gain.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:   

Element 1 - Convicted of murder
The first element is that the defendant was convicted of murder.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging murder>, which I have already instructed you on.  If you find the defendant guilty of murder in count <insert number of count charging murder>, then this element of capital felony will be proven.
 

Element 2 - For hire
The second element is that the defendant was hired to commit the murder for pecuniary gain.  The state must prove beyond a reasonable doubt that someone hired the defendant to intentionally cause the death of <insert name of decedent> in exchange for something of monetary value.

"Hired" means a relationship in which one person engages the services of another who, for pecuniary gain, agrees to perform specified services.  "Pecuniary gain" means gain in the form of money.  This means that someone engaged the defendant to murder the decedent in exchange for money.  In other words, the state must prove beyond a reasonable doubt that there was an agreement between the defendant and the person who hired (him/her) to intentionally cause the death of the decedent in exchange for monetary compensation.2

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant murdered <insert name of decedent>, and  2) the defendant was hired to commit the murder for pecuniary gain.

<Insert Concluding Instruction.  See below.> 

b.  Defendant charged with hiring a third party to commit the murder

The defendant is charged [in count ___] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) when that person hired another person to commit murder for pecuniary gain and that other person committed murder.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Hired another
The first element is that the defendant hired <insert name of person hired> to murder <insert name of decedent> for pecuniary gain.  "Hired" means a relationship when one person engages the services of another who, for pecuniary gain, agrees to perform specified services.  "Pecuniary gain" means gain in the form of money.  This means that someone engaged the defendant to murder the decedent in exchange for money.  In other words, the state must prove beyond a reasonable doubt that both the defendant and the person who (he/she) hired intended to cause the death of <insert name of decedent> in exchange for monetary compensation.
3 

Element 2 - Caused death
The second element is that the defendant, through (his/her) actions, and the person hired to commit the murder, caused the death of the decedent.  You must find proved beyond a reasonable doubt that the decedent died as a result of the actions of the defendant and the person the defendant hired.
 

Element 3 - Murder
The third element is that the defendant and <insert name of person hired> caused the death of <insert name of decedent> with the specific intent to cause <insert name of decedent>'s death.  There is no particular length of time necessary to form the specific intent to cause <insert name of decedent>'s death.

<See Intent: Specific, Instruction 2.3-1.> 

Special evidentiary rule

<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant hired <insert name of person hired> to murder <insert name of decedent> for pecuniary gain, 2) <insert name of person hired> caused the death of <insert name of decedent>, and 3) both the defendant and <insert name of person hired> intended to cause the death of <insert name of decedent>.

<Insert Concluding Instruction.  See below.> 

3.  Prior conviction of murder -- 53a-54b (3)

Note:  A trial to a jury for a charge of 53a-54b (3) requires the trial to be bifurcated to avoid undue prejudice.  State v. Jones, 234 Conn. 324 (1995).  The state may, however, demonstrate a need to avoid a bifurcated trial.  Id., 347-49.  The first part of the trial is a determination by the jury of whether the defendant committed the charged murder.  During this part of the bifurcated trial, only instruct the jury on the elements of murder.  The second part of the trial concerns the prior conviction for murder or felony murder.  The following instruction is only to be given to the jury after it has returned a verdict of guilty as to the murder charged.

Now that you have reached the verdict of guilty on the charge of murder, and heard further evidence regarding this case, I must instruct you on the additional crime of of (capital felony / murder with special circumstances).  The statute defining capital felony reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) when that person commits murder and that person has previously been convicted of (intentional murder / murder committed in the course of the commission of a felony).

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of murder
The first element is that the defendant committed a murder.  Based upon your verdict in the first part of this trial, you have found the first element to have been proved.
 

Element 2 - Previous conviction
The second element is that at the time of the commission of the murder, the defendant had previously been convicted of (intentional murder / murder committed in the course of the commission of a felony).  "Convicted" means having a judgment of conviction entered by a court of competent jurisdiction against the defendant on that charge.  This conviction must have occurred prior to the date the defendant murdered <insert name of decedent>.
 

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant committed a murder, and 2) at the time (he/she) committed that murder, had previously been convicted of (intentional murder / murder committed in the course of the commission of a felony).

<Insert Concluding Instruction.  See below.> 
 

4.  Under sentence of life imprisonment -- 53a-54b (4)

Note:  Although State v. Jones, 234 Conn. 324 (1995), pertains only to a charge under subsection 3 (see above), the same principles would apply to a charge under subsection 4, requiring the trial to be bifurcated to avoid undue prejudice, unless the state has demonstrated a need to avoid a bifurcated trial.  The first part of the trial is a determination by the jury of whether the defendant committed the charged murder.  During this part of the bifurcated trial, only instruct the jury on the elements of murder.  The second part of the trial concerns whether the defendant is currently under a sentence of life imprisonment.  The following instruction is only to be given to the jury after it has returned a verdict of guilty as to the murder charged.

Now that you have reached the verdict of guilty on the charge of murder, and heard further evidence regarding this case, I must instruct you on the additional crime of capital felony.  The statute defining (capital felony / murder with special circumstances) reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) if that person is convicted of murder and that person was, at the time of commission of the murder, under a sentence of life imprisonment.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of murder
The first element is that the defendant committed a murder.  Based upon your verdict in the first part of this trial, you have found the first element to have been proved.
 

Element 2 - Under sentence of life imprisonment
The second element is that at the time of the commission of the murder, the defendant was under a sentence of life imprisonment.  To prove this element, the state must prove beyond a reasonable doubt that the defendant had been sentenced to a term of life imprisonment at the time of the murder.

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant committed a murder, and 2) at the time (he/she) committed that murder, had been sentenced to a term of life imprisonment.

<Insert Concluding Instruction.  See below.> 
 

5.  Murder of a kidnapped person -- 53a-54b (5)

Note:  Under this subsection of capital felony, the state must only prove kidnapping in the second degree.

The defendant is charged [in count __] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) if that person is convicted of the murder of a kidnapped person during the course of the kidnapping or before the kidnapped person is able to return or be returned to safety.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of murder
The first element is that the defendant was convicted of murder.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging murder> which I have already instructed you on.  If you find the defendant guilty of murder in count <insert number of count charging murder>, then this element of capital felony will be proved.
 

Element 2 - Kidnapping
The second element is that the defendant had kidnapped that person.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging kidnapping> which I have already instructed you on.  If you find the defendant guilty of kidnapping in count <insert number of count charging kidnapping>, then this element of capital felony will be proved.
 

Element 3 - Murder in the course of the kidnapping
The third element is that the murder occurred during the course of the kidnapping or before such person was able to return to safety or be returned to safety.  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 kidnapping.  The immediate murder of a person to eliminate a witness to the crime or to avoid detection is also "in the course of commission."
 

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant murdered <insert name of decedent>, 2) the defendant had kidnapped <insert name of decedent>, and 3) the murder occurred during the course of the kidnapping or before <insert name of decedent> was able to return to safety or be returned to safety.

<Insert Concluding Instruction.  See below.> 
 

6.  Murder during a sexual assault -- 53a-54b (6)

The defendant is charged [in count __] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) when that person is convicted of murder committed in the course of the commission of sexual assault in the first degree. 

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of murder
The first element is that the defendant was convicted of murder.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging murder> which I have already instructed you on.  If you find the defendant guilty of murder in count <insert number of count charging murder>, then this element will be proved.
 

Element 2 - Sexual assault
The second element is that the murder occurred during the course of the commission of sexual assault in the first degree.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging sexual assault> which I have already instructed you on.  If you find the defendant guilty of sexual assault in count <insert number of count charging sexual assault>, then this element will be proven.
 

Element 3 - Murder in the course of the sexual assault
The third element is that the murder occurred in the course of the commission of the sexual assault.  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 sexual assault in the first degree.  The immediate murder of a person to eliminate a witness to the crime or to avoid detection is also "in the course of commission."
 

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant murdered <insert name of decedent>, 2) the defendant had sexually assaulted <insert name of decedent>, and 3) the murder occurred during the course of the sexual assault.

<Insert Concluding Instruction.  See below.> 

7.  Multiple murders -- 53a-54b (7)

The defendant is charged [in count __] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a capital felony when that person is convicted of the murder of two or more persons at the same time or in the course of a single transaction.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of one or more murders
The first element is that the defendant has been convicted of the murder of two or more persons.  Proof of this element will depend on your deliberations pertaining to counts <insert numbers of the counts charging each murder> which I have already instructed you on.  If you find the defendant guilty of murder in counts <insert numbers of the counts charging each murder>, then this element of capital felony will be proved.

Element 2 - Single transaction
The second element is that the <insert number of murders> murders occurred at the same time or in the course of a single transaction.  In order to prove that the murders occurred at the same time or in the course of a single transaction the state must prove beyond a reasonable doubt that the murders occurred at approximately the same time or that the murders were related to a single course of conduct or plan carried out as a series of events with a clear connection.  Was there a plan, motive or event common to the <insert number of murders> murders?  If you find beyond a reasonable doubt that the state has proved that all of the murders occurred as part of a single course of conduct with a clear connection, then you shall find this element to have been proven.
 

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant murdered <insert names of decedents>, and 2) the <insert number of murders> murders occurred at the same time or in the course of a single transaction.

<Insert Concluding Instruction.  See below.>

8.  Murder of a person under sixteen years of age -- 53a-54b (8)

The defendant is charged [in count __] with (capital felony / murder with special circumstances).  The statute defining this offense reads in pertinent part as follows:

a person is guilty of a (capital felony / murder with special circumstances) when that person is convicted of the murder of a person under sixteen years of age.

For you to find the defendant guilty of (capital felony / murder with special circumstances), the state must prove the following elements beyond a reasonable doubt:  

Element 1 - Convicted of murder
The first element is that the defendant was convicted of murder.  Proof of this element will depend on your deliberations pertaining to count <insert number of count charging murder> which I have already instructed you on.  If you find the defendant guilty of murder in count <insert number of count charging murder>, then this element will be proved.
 

Element 2 - Age of decedent
The second element is that at the time <insert name of decedent> was murdered, (he/she) was under sixteen years of age.
4 

Special evidentiary rule
<Insert Two Witness Instruction.  See below.> 

Conclusion

In summary, the state must prove beyond a reasonable doubt that 1) the defendant murdered <insert name of decedent>, and 2) that at the time <insert name of decedent> was murdered, (he/she) was under sixteen years of age.

<Insert Concluding Instruction.  See below.>

 

PART B.  OTHER INSTRUCTIONS PERTAINING TO CAPITAL FELONY 

1TWO WITNESS INSTRUCTION5

If you find that the state has proved all the elements of (capital felony / murder with special circumstances), there is one other rule that applies to the crime of (capital felony / murder with special circumstances) you must also consider. Our law provides that no person may be convicted of any crime (punishable by death / life imprisonment without possibility of release) without the testimony of at least two witnesses or that which is equivalent thereto. It is our law in most criminal cases that a person can be convicted on the testimony of just one person. However, in a charge of (capital felony / murder with special circumstances) the state is required to produce more than a single witness. There is no requirement that there be two eyewitnesses to the crime, only that there has been produced for you the testimony of at least two witnesses or the equivalent thereto. In this case when you recall the evidence you have heard, and consider the number of witnesses called by the state in support of this charge of of (capital felony / murder with special circumstances), you may find that the state has met its additional evidentiary burden of calling at least two witnesses or that which is equivalent thereto. The rule is satisfied if there are two or more witnesses, each testifying to different parts of the crimes, or to different circumstances concerning the charge, tending directly to show the guilt of the accused. The rule is also satisfied if one witness testifies to a principal fact and another witness testifies to circumstances corroborating it.  

2CONCLUDING INSTRUCTION

If you find that the state has called two witnesses, or the equivalent thereto, and unanimously proved the elements of the crime of of (capital felony / murder with special circumstances) beyond a reasonable doubt, then you shall find the defendant guilty. If the state has failed to call two witnesses or the equivalent thereto or failed to prove beyond a reasonable doubt any one or more of the elements of the crime of of (capital felony / murder with special circumstances), you shall find the defendant not guilty of this count.
_______________________________________________________

1 State v. Reynolds, 264 Conn. 1, 28-35 (2003), cert. denied, 541 U.S. 908, 124 S.Ct. 1614, 158 L.Ed.2d 254 (2004).

2 State v. Carpenter, 275 Conn. 785, 866 (2005), cert. denied, 547 U.S. 1025, 126 S.Ct. 1578, 164 L.Ed.2d 309 (2006).

3 Id.

4 There is no requirement that the defendant knew the age of the victim, or that the defendant intended to kill a victim of a certain age.  "If a defendant intentionally murders an innocent person without knowing that person's age, he does so at his peril, and will not be heard to plead in defense good faith or ignorance."  (Internal quotation marks omitted.)  State v. Higgins, 265 Conn. 35, 48 (2003).

5 See General Statutes 54-83; State v. Ortiz, 252 Conn. 533, 578 (2000).

Commentary

The statute says that the person must be "convicted of murder."  The Supreme Court has interpreted this to exclude nonintentional murder, so that neither felony murder nor arson murder may be the predicate crime for capital felony or murder with special circumstances.  See State v. Johnson, 241 Conn. 702, 713-14 (1997) (killing of police officer during the course of a robbery); State v. Harrell, 238 Conn. 828, 839 (1996) (killing of two people in a fire).

A conviction of intentional murder based on Pinkerton liability may be the predicate crime for capital felony or murder with special circumstances.  State v. Peeler, 271 Conn. 338, 364-65 (2004), cert. denied, 546 U.S. 845, 126 S.Ct. 94, 163 L.Ed2d 110 (2005); State v. Coltherst, 263 Conn. 478, 500-501 (2003).
 


 

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