5.1-5 Manslaughter with a Firearm -- § 53a-55a and § 53a-56a
Revised to December 1, 2007
Note: The degree of the offense depends on the degree of the underlying crime.
The defendant is charged [in count ___] with manslaughter in the (first/second) degree with a firearm. The statute defining this offense reads in pertinent part as follows:
a person is guilty of manslaughter in the (first/second) degree with a firearm when (he/she) commits manslaughter in the (first/second) degree, and in the commission of such offense (he/she) (uses / is armed with and threatens the use of / displays or represents by (his/her) words or conduct that (he/she) possesses) a pistol, revolver, shotgun, machine gun, rifle or other firearm.
For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt:
Element 1 - Committed
manslaughter in the first or second degree
The first element is that the defendant committed manslaughter in the (first/second) degree. <Insert the elements from one of the following instructions depending on the underlying offense charged:>
Manslaughter in the First Degree (Intentional), Instruction 5.1-2.
Manslaughter in the First Degree (Reckless Indifference), Instruction 5.1-3.
Manslaughter in the Second Degree, Instruction 5.1-4.
Element 2 - With a firearm
The second element is that the defendant <insert as appropriate:>1
used a firearm.
was armed with, and threatened the use of a firearm.
displayed or represented by words or conduct that (he/she) possessed a firearm. [<If appropriate:> It is not required that what the defendant represents to be a firearm be loaded or that the defendant actually have a firearm. It need only be represented by words or conduct that (he/she) is so armed.]
<Describe specific allegations regarding firearm.> The term "firearm" includes any sawed-off shotgun, machine gun, rifle, shotgun, pistol, revolver or other weapon, whether loaded or unloaded, from which a shot may be discharged.2 You must find that the firearm was operable at the time of the offense.3
In summary, the state must prove beyond a reasonable doubt that <insert the concluding summary from the instruction for the underlying crime>, and that in the commission of the crime the defendant (used / was armed with and threatened the use of / displayed or represented by words or conduct that (he/she) possessed) a firearm.
If you unanimously find that the state
has proved beyond a reasonable doubt each of the elements of the crime of
manslaughter in the (first/second) degree with a firearm, 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 Carefully tailor this part of the instruction according to the nature of the conduct alleged and the type of firearm involved. See State v. Tomlin, 266 Conn. 608, 626-27 (2003) (allegation of "did shoot" only supported instructing on the first of three distinct methods of committing the offense).
"Under the cognate pleadings approach, manslaughter in the first degree with a firearm can be a lesser included offense of murder if the charging documents put the defendant on notice that the crime was committed by the use or threatened use of a firearm." State v. Greene, 274 Conn. 134, 157 (2005), cert. denied, 548 U.S. 926, 126 S.Ct. 2981, 165 L.Ed.2d 988 (2006) (charge alleged that "with the intent to cause death by means of a firearm" but did not allege that the death was actually caused by a firearm, so the lesser included instruction was improper); see also State v. Tomlin, supra, 266 Conn. 620 (allegation that defendant "did shoot" victim was sufficient); State v. Ferreira, 54 Conn. App. 763, 769, cert. denied, 251 Conn. 916 (1999) (bill of particulars alleged that defendant "shot and killed" victim); State v. Guess, 39 Conn. App. 224, 238, cert. denied, 235 Conn. 924 (1995) (information contained no allegation of the use of a firearm).
"Conspiracy to commit manslaughter . . . with a firearm is not a cognizable crime because it requires a logical impossibility, namely, that the actor . . . [agree and] intend that an unintended death result." (Internal quotation marks omitted.) State v. Greene, supra, 274 Conn. 164.
"No person shall be found guilty of manslaughter in the first degree and manslaughter in the first degree with a firearm upon the same transaction but such person may be charged and prosecuted for both such offenses upon the same information." General Statutes § 53a-55a (a).
"No person shall be found guilty of
manslaughter in the second degree and manslaughter in the second degree with a
firearm upon the same transaction but such person may be charged and prosecuted
for both such offenses upon the same information." General Statutes § 53a-56a