State v. Montgomery
In State v. Montgomery, 254 Conn. 694, 738, 759 A.2d 995 (2000), the jury convicted the defendant of murder and felony murder. State v. Montgomery, supra, 254 Conn. 697. The state also had charged the defendant under General Statutes 53- 202k with using a firearm during the commission of a class A, B, or C felony. State v. Montgomery, supra, 697.
The trial court determined that the defendant had violated 53-202k by using a firearm during the commission of a murder. Id.
On appeal, the defendant claimed that it was improper for the court to have failed to instruct the jury on the elements of 53-202k. Id., 698.
Although the Court agreed that the jury should have been instructed on the elements of 53-202k in accord with State v. Velasco, 253 Conn. 210, 751 A.2d 800 (2000), which was decided while the appeal in Montgomery was pending, the court concluded that the trial court's failure to instruct was harmless beyond a reasonable doubt. State v. Montgomery, supra, 738.
The information alleged that the defendant had caused the death of the victim by use of a firearm; id., 737; and the defendant did not contest that the victim had been shot in the head, only that the defendant was not the shooter. Id., 738.
The Court concluded that the jury, in convicting the defendant of murder, a class A felony, necessarily found that he had violated 53-202k. Id., 737.
The Court recognized that "the jury and not the trial court must make the factual determinations required under 53-202k . . . ." Id. at 735.
The Supreme Court determined, however, that the trial court's failure to submit the issue of sentence enhancement pursuant to 53-202k to the jury was harmless error because the jury necessarily had made all the factual findings to support an imposition of an enhanced sentence under the statute. Id. at 738.
In State v. Montgomery, the Court rejected a claim that a defendant's killing of a resisting attempted kidnapping victim was not "in the course of and in furtherance of" the attempted kidnapping because the killing necessarily implied that the attempt to kidnap had ceased. Id., 731-34.
"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. . . .
"The phrase 'in the course of' focuses on the temporal relationship between the murder and the underlying felony. . . . We previously have defined the phrase 'in the course of' for purposes of 53a-54c to include 'the period immediately before or after the actual commission of the crime . . . .'
"The phrase 'in furtherance of' was intended to impose the requirement of a relationship between the underlying felony and the homicide beyond that of mere causation in fact, similar to the concept of proximate cause in the law of torts. Primarily its purpose was to limit the liability of a person whose accomplice in one of the specified felonies has performed the homicidal act to those circumstances which were within the contemplation of the confederates to the undertaking . . . . " State v. Montgomery, supra, 254 Conn. 734.
The Court review to the issue of whether the sentence enhancement factors of 53-202k must be determined by the jury, implicitly held that this claim implicates a defendant's constitutional rights.
The defendant in Montgomery was convicted of murder and felony murder. The trial court then, in considering 53-202k, determined that the jury, by convicting the defendant, had necessarily found that he had committed a class A felony and that the felony had been committed with a firearm. The court sentenced the defendant to a term of imprisonment that exceeded the statutory maximum.
On appeal, the defendant was afforded Golding review of his claim that the trial court improperly had failed to instruct the jury on the elements of 53-202k. Id., 735 n.46.
The Court indicated that the jury finding that the defendant had committed murder, a class A felony, necessarily satisfied the jury finding requirement as to the felony element of 53-202k. Id., 737. With regard to the firearm element of 53-202k, the court concluded that any error committed was harmless because the evidence was uncontested and overwhelming that the defendant had committed the murder with a firearm. Id., 738.