State v. Montanez
In State v. Montanez, 71 Conn. App. 246, 801 A.2d 868, cert. denied, 261 Conn. 935, 806 A.2d 1069 (2002), the trial court instructed the jury that accessory to manslaughter in the first degree with a firearm was a lesser offense included within the greater offense of murder as an accessory. Id. at 255. The defendant subsequently was convicted on the lesser offense. Id. at 248.
On appeal, the defendant claimed that the court should not have instructed the jury as to the lesser included offense because he was not placed on fair notice that he faced conviction of that crime. Id. at 255.
Contrary to the defendant's argument, we stated that "manslaughter in the first degree with a firearm can be a lesser included offense of murder. . . . The former crime requires, however, proof of an additional element, the use of a firearm, that is not a necessary element of murder, as defined in our statutes. Where murder is charged, the court is permitted to instruct the jury as to the lesser included offense of manslaughter in the first degree with a firearm only if the charging documents sufficiently allege that the defendant committed murder with the use of a firearm, thereby making that element a necessary element of the crime charged." Id. at 257.
In Montanez, the state did not incorporate into the information the statutory term "firearm." Instead, in the information, the state alluded to the use of a firearm by using the language "who did shoot and cause the death of Robert Brown." State v. Montanez, supra, 71 Conn. App. at 258.
In that case, the Court concluded that the information was sufficient to put the defendant on notice of the firearm. Here, the information does not employ the statutory term "at night," but instead provides the precise time, 11:33 p.m.
In Montanez, the instruction failed to convey the natural consequence that if the state was unable to disprove a claim of self-defense, the defendant must be found not guilty. Id., 250.
The Court held that "part of a legally adequate instruction as to the defense [of justification] should convey that the effect of a finding that the state has failed to disprove the defense requires the jury to render a verdict in the defendant's favor. The court must unambiguously instruct the jury that it must find the defendant not guilty if it finds that the state has not disproved the defense." Id., 253.
The Court stated that "the defendant's right to avail himself of the claimed defense, and to receive a technically accurate instruction as to the defense itself, would be of no value if the jury was left to ponder the significance of its ultimate finding in regard to the defense." Id., 254-55. As a result of the inadequate charge, this court concluded that the instruction was misleading to the jury. Id., 255.