State v. Steve
In State v. Steve, 208 Conn. 38, 44, 544 A.2d 1179 (1988), the defense counsel obtained a bill of particulars that charged the defendant with criminal liability for robbery in the first degree and assault in the first degree as a principal. Id., 41.
The jury was instructed on accessorial liability, even though the bill of particulars set forth facts that were sufficient to support only the defendant's participation as a principal. Id., 41-43.
In affirming our reversal of the trial court's judgment of conviction, our Supreme Court held that "the defendant was prejudiced in his defense as a result of a substantial variance between the allegations in the bill of particulars and the court's instructions concerning accessorial liability." Id., 45-46.
Furthermore, the court found it "significant that the state presented no evidence . . . suggesting that the defendant had acted as an accomplice." Id., 46.
The state's bill of particulars charged the defendant as a principal actor for the crimes of robbery in the first degree and assault in the first degree. Id., at 41. After the state concluded its case-in-chief, the defendant took the stand in his own defense and testified that a second person had actually shot the victim and taken his property. Id., at 42.
A second defense witness corroborated this testimony and testified that she had seen the defendant and the actual shooter immediately before and after the shooting. Id. Before closing arguments, the state's attorney advised the defendant that the state would request a charge on accessorial liability. The court complied with that request. 208 Conn. at 42-43.
In Steve, the defendant argued on appeal that the trial court improperly instructed the jury on the theory of accessorial liability. The Supreme Court agreed, noting that "the purpose of a bill of particulars is to inform the defendant of the charges against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise." Id., at 44.
The Supreme Court found it significant that the bill of particulars did not inform the defendant that the state would seek a conviction on the basis of accessorial liability. Likewise, the Supreme Court found it "significant that the state presented no evidence in its case-in-chief suggesting that the defendant had acted as an accomplice." Id., at 46.
On the basis of the variation between the court's charge and the bill of particulars and the fact that the state did not present evidence of accessorial conduct during its case-in-chief, our Supreme Court concluded that the trial court had improperly instructed the jury in this regard. Id.
The charging documents did not include conspiratorial liability, and the state did not present evidence in its case-in-chief suggesting that the defendant had acted as an accessory. Id., 46.
Rather, in Steve, it was likely that it was the defendant's testimony that supplied the basis for the jury instruction on accessorial liability. Id. The evidence that precipitated the accessory charge was not revealed until the defense presented its case; the state did not seek the jury instruction on accessorial liability until prior to closing arguments. Id.
As such, the Court held that because the "court's instructions concerning accessorial liability were not in substantial conformity with the allegations in the bill of particulars or the evidence in the state's case-in-chief, the instructions were erroneous." Id.