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State v. Williams
STATE OF CONNECTICUT v. ROBERT J. WILLIAMS
(SC 20766)
Mullins, C. J., and McDonald, D’Auria, Ecker,
Alexander and Dannehy, Js.
Syllabus
Convicted of manslaughter in the first degree with a firearm, criminal possession of a firearm, criminal possession of ammunition, and carrying a pistol
without a permit, the defendant appealed to this court. The defendant’s
conviction arose from an incident in which he shot and killed a third-party
bystander while shooting at another individual who had shot at the defendant
first. With respect to the first degree manslaughter charge, the state alleged
that the defendant, under circumstances evincing an extreme indifference
to human life, had recklessly engaged in conduct that created a grave risk
of death to the victim and had caused the victim’s death while he was using
a firearm. The defendant claimed, inter alia, that the trial court, which had
instructed the jury on the defense of self-defense with respect to the charge
of murder, of which the defendant was found not guilty, had improperly
declined the defendant’s request to instruct the jury on that defense with
respect to the charge of manslaughter in the first degree with a firearm.
The defendant also claimed that his conviction of both criminal possession of
a firearm and criminal possession of ammunition violated the constitutional
prohibition against double jeopardy. Held:
The trial court’s failure to provide the jury with a self-defense instruction
for the charge of manslaughter in the first degree with a firearm violated
the defendant’s constitutional rights to due process and to present a defense,
and, accordingly, this court reversed the judgment of conviction as to that
charge and ordered a new trial on that charge only.
Upon reviewing the rationale for justification defenses and the relevant case
law from Connecticut and other states, this court concluded that, when the
evidence so warrants, a trial court must instruct the jury on self-defense in
connection with a reckless manslaughter charge, regardless of whether the
victim is a bystander or the alleged aggressor.
In the present case, the evidence reasonably supported a self-defense instruction on the charge of manslaughter in the first degree with a firearm, and
the court therefore was required to provide such an instruction to the jury.
The state agreed that the trial court had properly instructed the jury on
self-defense in connection with the murder charge, and, in light of the
evidence that it was another individual who initiated the exchange of gunfire
with the defendant, it was for the jury to determine whether the defendant
actually and reasonably believed that the nature of the threat and degree
of force were necessary to protect himself.
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State v. Williams
The trial court’s failure to provide a self-defense instruction for the manslaughter charge was not harmless beyond a reasonable doubt, as the sole
issue in the case was whether the defendant’s actions were justified.
Moreover, although the trial court had instructed the jury on self-defense
in connection with the murder charge, the jury found the defendant not
guilty of murder and did not consider whether he acted in self-defense in
connection with that charge, the trial court did not properly inform the jury
how it should consider self-defense as to the manslaughter charge, and this
court could not assume that the jury, in determining whether the defendant
was guilty of manslaughter, would necessarily have referred to the definition
of self-defense that the court provided in connection with the murder charge.
The defendant’s conviction of both criminal possession of a firearm and
criminal possession of ammunition under the same statutory provision ((Rev.
to 2017) § 53a-217 (a)) violated the constitutional prohibition against double
jeopardy, and, accordingly, this court vacated the defendant’s conviction of
criminal possession of ammunition.
Although the text of § 53a-217 (a) was ambiguous with respect to the issue,
the statute’s legislative history suggested that the legislature did not intend
to treat the criminal possession of a firearm and criminal possession of
ammunition as two separate crimes when both the firearm and the ammunition in the firearm are used during a single incident.
Furthermore, because the legislature expressed no clear intention to fix
separate penalties for criminal possession of a firearm and criminal possession of ammunition, this court applied the rule of lenity to avoid turning
a single transaction into multiple offenses and, thus, concluded that the
defendant could be convicted of only one crime under § 53a-217 when he
possessed the firearm and ammunition in one place and at one time.
(One justice concurring in part and dissenting in part)
Argued October 28, 2024—officially released June 10, 2025
Procedural History
Two part substitute information charging the defendant, in the first part, with the crimes of murder and
manslaughter in the first degree with a firearm, and, in
the second part, with the crimes of criminal possession
of a firearm, criminal possession of ammunition, and
carrying a pistol without a permit, brought to the Superior Court in the judicial district of Waterbury, where
the first part of the information was tried to the jury
before Schuman, J.; verdict of guilty of manslaughter
in the first degree with a firearm; thereafter, the second
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State v. Williams
part of the information was tried to the court, Schuman,
J.; finding of guilty; judgment of guilty in accordance
with the verdict and the court’s finding, from which
the defendant appealed to this court. Reversed in part;
vacated in part; new trial.
Pamela S. Nagy, supervisory assistant public defender,
for the appellant (defendant).
Meryl R. Gersz, assistant state’s attorney, with whom,
on the brief, were Maureen Platt, state’s attorney, and
Marc G. Ramia and Terence D. Mariani, Jr., senior assistant state’s attorneys, for the appellee (state).
Opinion
McDONALD, J. The defendant, Robert J. Williams,
appeals from the judgment of conviction of manslaughter
in the first degree with a firearm, criminal possession of
a firearm, criminal possession of ammunition, and carrying a pistol without a permit in connection with a shooting incident. The principal issue on appeal is whether the
trial court erred in declining to give the jury an instruction
on the defense of self-defense with respect to the charge
of manslaughter in the first degree with a firearm when
a third party was the victim of the shooting. The defendant
also claims that his conviction of both criminal possession
of a firearm and criminal possession of ammunition violates double jeopardy. We agree with the defendant that
the trial court erred in declining to provide the jury with
a self-defense instruction for the charge of manslaughter
in the first degree with a firearm and that this error was
harmful. Therefore, we reverse the defendant’s conviction
of manslaughter in the first degree with a firearm and
remand the case to the trial court for a new trial on
that count. We also agree with the defendant that his
conviction of criminal possession of a firearm and criminal possession of ammunition violates double jeopardy.
Accordingly, we vacate the defendant’s conviction of criminal possession of ammunition.
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State v. Williams
Early one morning in August, 2017, following a trip to
the Whitewood Café in Waterbury, the victim, Terry Smith,
parked an Acura on the south side of East Farm Street,
near the Tree Top Café in Waterbury. Smith and his passenger, Kenny Martin, exited the vehicle, walked down
the sidewalk, and entered the Tree Top Café. Shortly after
Smith and Martin arrived, the defendant, who had also
previously been at the Whitewood Café, arrived and
parked his vehicle on the north side of East Farm Street,
almost directly across from the Acura. Smith exited the
Tree Top Café and entered the Acura on the driver’s
side. Moments later, Martin exited the Tree Top Café and
approached the Acura. As Martin reached the vehicle, he
and the defendant, who was across the street and near
his own vehicle, looked at each other. As the defendant
began walking across the street, Martin fired shots at him
from behind the passenger side of the Acura, in which
Smith was still sitting. The defendant was struck by a
bullet in his thigh. As he fell to the ground, he returned
fire. One of the defendant’s shots struck Smith in the head.
Martin escaped unharmed. Both vehicles subsequently
drove away.
A witness, Reinaldo Quinones, saw a portion of the
incident from the balcony of his house, which was located
on the same side of the street as the Tree Top Café, a
few houses down. Quinones heard an argument when he
went out onto his balcony. Quinones saw the defendant
exit his vehicle and then drop something. Although he
could not be sure, Quinones thought it was a gun. The
defendant picked up the object and put it in his waistband.
Quinones testified that the defendant and another man,
who was across the street, began arguing, and then Quinones heard shots being fired. Because of the gunfire, he
ducked down and lost sight of the men for a period of
time. Quinones saw the defendant fall on the street, near
the driver’s side of his car, and crawl to his car.
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State v. Williams
Brian Grudzien, a police officer with the Waterbury
Police Department, was dispatched to Saint Mary’s Hospital in response to a call reporting that a gunshot victim
was dropped off at the hospital. While en route to the
hospital, he was informed that a possible suspect had
been dropped off as well. When Grudzien arrived at the
hospital, he parked at the exit of the hospital and saw a
man, later identified as Martin, standing over the defendant, who was on the ground, and ‘‘really reaching back
and throwing punches’’ at the defendant. Martin was yelling, ‘‘you killed my brother, you shot my brother in the
head . . . .’’1 Grudzien arrested Martin. Smith, who had
been struck by a bullet on the left side of his head, was
pronounced dead at the hospital. The defendant sustained
a broken femur as a result of his gunshot wound. The
police ultimately recovered two different calibers of bullets and cartridge cases—at least six .45 caliber that were
all fired from a semiautomatic gun, and five nine millimeter that were fired from the same nine millimeter pistol.
Nine millimeter bullet fragments were recovered from
Smith’s autopsy. The bullet recovered from the defendant’s leg was a .45 caliber bullet.
The state subsequently charged the defendant with murder in violation of General Statutes § 53a-54a, manslaughter in the first degree with a firearm in violation of General
Statutes § 53a-55a (a), criminal possession of a firearm
in violation of General Statutes (Rev. to 2017) § 53a-217
(a),2 criminal possession of ammunition in violation of
§ 53a-217 (a), and carrying a pistol without a permit in
violation of General Statutes (Rev. to 2017) § 29-35 (a). At
trial, the state’s theory of the case was that the defendant
intended to kill Martin, not Smith. The trial court
instructed the jury on transferred intent and, as to the
murder charge, on the defense of self-defense. The court
Grudzien later determined that Martin and Smith were not related.
1
Hereinafter, unless otherwise indicated, all references to § 53a-217 in this
2
opinion are to the 2017 revision of the statute.
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State v. Williams
did not provide the jury with a self-defense instruction
on the manslaughter charge. The jury found the defendant
not guilty of murder. The court asked the foreperson, ‘‘as
to the jury interrogatories, question number one, did the
state prove both elements of the charge of murder . . .
beyond a reasonable doubt; yes or no?’’ The foreperson
answered, ‘‘[n]o.’’ The jury found the defendant guilty
of manslaughter in the first degree with a firearm. The
defendant elected to have the remaining charges tried to
the court, which found the defendant guilty on those
charges. The court also found that the defendant was a
persistent serious felony offender in violation of General
Statutes § 53a-40 (c). The court subsequently sentenced
the defendant to thirty-five years of incarceration for manslaughter in the first degree with a firearm, two concurrent
ten year sentences for criminal possession of a firearm
and criminal possession of ammunition, which were to
be served consecutively to the manslaughter sentence,
and a concurrent five year sentence for carrying a pistol
without a permit. The total effective term was forty-five
years of incarceration. This appeal followed. Additional
facts and procedural history will be set forth as necessary.
On appeal, the defendant challenges his convictions of
manslaughter in the first degree with a firearm and criminal possession of ammunition. Specifically, he contends,
among other things, that (1) the trial court improperly
had declined to give the jury a self-defense instruction
with respect to the charge of manslaughter in the first
degree with a firearm, and (2) the defendant’s conviction
of both criminal possession of a firearm and criminal
possession of ammunition violates double jeopardy. We
address each claim in turn.
I
We begin with the defendant’s contention that he was
entitled to a self-defense instruction for the charge of
manslaughter in the first degree with a firearm. The defen-
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State v. Williams
dant contends that the trial court’s failure to give this
instruction violated his constitutional rights to due process and to present a defense. We agree with the
defendant.3
The following additional procedural history is relevant
to our analysis. The defendant filed a request to charge,
seeking, among other things, an instruction that self-defense constituted a complete defense to both murder
and manslaughter in the first degree with a firearm that
the state must disprove beyond a reasonable doubt. In
support of that request, defense counsel argued before
the trial court that, ‘‘if [a] person is acting in response to
a threat and is defending themselves appropriately, then
there should be no criminal liability.’’ The prosecutor disagreed that the trial court should provide a full self-defense instruction as to the manslaughter in the first
degree with a firearm charge and noted that the court’s
proposed instruction on the manslaughter charge informed
the jury that it could take self-defense into consideration in determining whether the defendant was reckless. The court agreed with defense counsel that a self-defense instruction should be provided on the murder
count. But the court declined to provide it on the count
of manslaughter in the first degree with a firearm. It
explained: ‘‘I would agree that self-defense might apply
if the defendant were defending himself not only against
the person shooting at him, but [also] against the third
party. But there is no evidence in this case [that] the
third party, [Smith], threatened the defendant in any
way. And, again, to allow complete exception . . . to
self-defense in a reckless killing of a third party, I think
The defendant also contends that the trial court improperly declined to
3
provide the jury with an instruction on the common-law defense of necessity.
Our conclusion that the trial court improperly declined to instruct the jury on
the defense of self-defense as to the charge of manslaughter in the first degree
with a firearm renders it unnecessary for us to review the defendant’s claim
that the trial court also improperly had declined to instruct the jury on the
defense of necessity.
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State v. Williams
is not tolerable in an organized society, and we can’t
write it off as just collateral damage. I do agree, however, that the defendant can argue that self-defense was
one of the circumstances that the defendant confronted
in determining whether the defendant acted with extreme
indifference to human life under all of the circumstances. But I just am not going so far as to say that
the state has to disprove self-defense for the manslaughter charge.’’
When giving its final instructions to the jury, the trial
court first instructed the jury that, to find the defendant
guilty of murder, it must find that the defendant, with
the intent to cause the death of Martin, caused the
death of Smith. The court then explained the theory of
transferred intent. The court also gave a self-defense
instruction for the murder count. It noted that ‘‘[t]here
is a statute that defines self-defense, and you are to
apply that definition in reviewing the evidence in this
case and not apply any common or colloquial meaning
that you may have heard before.’’ It explained that ‘‘self-defense is a complete defense to certain crimes, including murder.’’4 The court further noted that, if the state
failed to disprove at least one of the elements of self-defense or to prove one of the statutory disqualifica-
4
The trial court read the jury the statutory definition of self-defense: ‘‘A
person is justified in using reasonable physical force upon another person to
defend himself from what he reasonably believes to be the use or imminent
use of physical force, and he may use such degree of force which he reasonably
believes to be necessary for such purpose. The statute requires that, before a
defendant uses physical force upon another person to defend himself, he must
have two reasonable beliefs. The first is a reasonable belief that physical force
is then being used or about to be used upon him. The second is a reasonable
belief that the degree of force he is using to defend himself from what he
believes to be an ongoing or imminent use of force is necessary for that
purpose.’’ See General Statutes § 53a-19 (a).
Although § 53a-19 was the subject of amendments in 2019 and 2022; see
Public Acts 2022, No. 22-117, § 9; Public Acts 2019, No. 19-108, § 3; those
amendments have no bearing on the merits of this appeal. In the interest of
simplicity, we refer to the current revision of the statute.
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State v. Williams
tions, then the defendant was not guilty of murder,
and the jury would go on to consider the count of
manslaughter in the first degree with a firearm.
As part of the instruction on the reckless manslaughter count, the trial court explained that the first element
of the crime was ‘‘that the defendant, under circumstances evincing an extreme indifference to human life,
recklessly engaged in conduct [that] created a grave
risk of death to another person . . . .’’ It then clarified
that, in order to determine whether the state met its
burden of demonstrating that the defendant acted with
extreme indifference and recklessness, the jurors must
‘‘consider all of the circumstances confronting the
defendant, including whether he had a valid claim
to self-defense and whether he exercised self-defense
reasonably or whether he exercised it recklessly.
Although the state does not need to disprove self-defense
beyond a reasonable doubt to convict on this count, it
must still prove that the defendant, under circumstances evincing an extreme indifference to human life,
recklessly engaged in conduct [that] created a grave
risk of death to another person.’’ (Emphasis added.)
The following legal principles guide our determination of whether the trial court was required to provide
a self-defense instruction as to the count of manslaughter in the first degree with a firearm. ‘‘In determining
whether the trial court improperly refused a request to
charge, [w]e . . . review the evidence presented at
trial in the light most favorable to supporting the . . .
proposed charge. . . . A request to charge [that] is relevant to the issues of [a] case and [that] is an accurate
statement of the law must be given. . . . If, however,
the evidence would not reasonably support a finding
of the particular issue, the trial court has a duty not to
submit it to the jury. . . . Thus, a trial court should
instruct the jury in accordance with a party’s request
to charge [only] if the proposed instructions are reason-
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State v. Williams
ably supported by the evidence.’’ (Internal quotation
marks omitted.) State v. Arroyo, 284 Conn. 597, 607–608,
935 A.2d 975 (2007).
We are also mindful that ‘‘[a] fundamental element
of due process of law is the right of a defendant charged
with a crime to establish a defense. . . . [When], as
here, the challenged jury instructions involve a constitutional right, the applicable standard of review is
whether there is a reasonable possibility that the jury
was misled in reaching its verdict. . . . In evaluating
the particular charges at issue, we must adhere to the
well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its
total effect rather than by its individual component
parts. . . . [T]he test of a court’s charge is . . .
whether it fairly presents the case to the jury in such
a way that injustice is not done to either party under
the established rules of law.’’ (Internal quotation marks
omitted.) State v. Nathan J., 294 Conn. 243, 261,
982
A.2d 1067 (2009).
Whether the defense of self-defense applies to a charge
of reckless manslaughter in the first degree with a firearm when the victim is a bystander is a question of law
over which we exercise plenary review. See, e.g., State
v. Amado, 254 Conn. 184, 197,
756 A.2d 274 (2000); see
also, e.g., State v. Collins, 299 Conn. 567, 599,
10 A.3d
1005 (‘‘[a] challenge to the validity of jury instructions
presents a question of law over which [we have] plenary
review’’ (internal quotation marks omitted)), cert.
denied, 565 U.S. 908,
132 S. Ct. 314,
181 L. Ed. 2d 193
(2011).
As the parties acknowledge, this case involves the
novel question of whether a self-defense instruction,
when the evidence warrants, is available to a defendant
charged with reckless manslaughter in the first degree
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State v. Williams
with a firearm of an individual who is not the aggressor.5
To answer that question, we first review the rationale
for justification defenses, such as self-defense. We then
consider whether a defendant’s exercise of the right of
self-defense, when the defendant used deadly force in
the proper exercise of that right, applies to a charge of
reckless manslaughter in the first degree with a firearm
of an unintended victim, following our decision in State
v. Hall, 213 Conn. 579, 584–86,
569 A.2d 534 (1990).6 ‘‘A
justification defense represents a legal acknowledgment that the harm caused by otherwise criminal con-
5
The defendant and other jurisdictions have referred to the defense as ‘‘transferred intent self-defense’’ or ‘‘transferred innocent intent’’ because the victim
is not the alleged aggressor. See, e.g., Commonwealth v. Pina, 481 Mass. 413,
420–21, 116 N.E.3d 575 (2019) (court recognized that ‘‘transferred innocent
intent’’ theory has been applied in other jurisdictions when bystander was killed
during defendant’s lawful exercise of right of self-defense but concluded that
it has not ‘‘recognized transferred intent self-defense as a matter of [its] homicide
jurisprudence, and need not do so in this case’’ (internal quotation marks
omitted)). We believe this to be a misnomer, as there is no intent to transfer.
Instead, we believe that referring to the justification as self-defense is most
appropriate given our jurisprudence. In State v. Jones, 39 Conn. App. 563,
665
A.2d 910, cert. denied,
235 Conn. 931,
667 A.2d 800 (1995), the defendant was
convicted of the intent crime of assault in the first degree, and the jury was
given a self-defense instruction despite the fact that the victim was not the
alleged aggressor. See id., 564–65, 568. In the Appellate Court’s decision, it does
not refer to self-defense as ‘‘transferred intent self-defense’’ or ‘‘transferred
innocent intent.’’ Rather, the court referred to that defense as just ‘‘self-defense.’’
For consistency with our jurisprudence, and to prevent confusion about the
applicability of self-defense to nonintent crimes, we refer to the justification
as ‘‘self-defense,’’ regardless of whether the victim was the alleged aggressor.
6
We note that the parties do not frame this issue as one of statutory interpretation. We are mindful, however, of the incongruity that would result in recognizing
transferred intent to kill when it comes to intentional murder; see, e.g., State
v. Higgins, 265 Conn. 35, 51,
826 A.2d 1126 (2003); while not recognizing that
the trial court was required to provide the defendant with the benefit of a
complete self-defense instruction for reckless manslaughter. Such a conclusion
would advance no public benefit. See, e.g., Commonwealth v. Fowlin, 551 Pa.
414, 421,
710 A.2d 1130 (1998) (‘‘[the Pennsylvania high] court could fashion a
rule of law [that] holds the defender criminally liable, but in doing so, [it] would
have furthered no policy of the criminal law’’). In the present case, it was
Martin who initially began firing at the defendant, and it was Martin who placed
Smith in the line of fire by standing behind the passenger side of the car in
which Smith was sitting.
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State v. Williams
duct is, under special justifying circumstances, ‘outweighed
by the need to avoid an even greater harm or to further
a greater societal interest.’ 1 P. Robinson, Criminal Law
Defenses (1984) § 24 (a), p. 83. For example, in the case
of self-defense, ‘[s]ociety’s interest in the right to bodily
integrity, when combined with the physical harm threatened [by an aggressor], outweighs the normal prohibition against the physical injury needed to deter such
an aggressor.’ Id., p. 84. All justification defenses share
a similar internal structure: special ‘triggering circumstances permit a necessary and proportional response
. . . .’ Id., § 24 (b), p. 86.’’ (Footnote omitted.) State v.
Montanez, 277 Conn. 735, 752,
894 A.2d 928 (2006). In
Connecticut, it is well settled that ‘‘self-defense is a
justification for engaging in otherwise criminal conduct.
See General Statutes § 53a-19; see also P. Robinson,
‘Criminal Law Defenses: A Systematic Analysis,’ 82
Colum. L. Rev. 199, 236 (1982) (‘[i]n most modern codifications, self-defense is appropriately treated . . . as a
pure justification’).’’ State v. Montanez, supra, 752.
We have explained that ‘‘[j]ustified conduct is subject
to neither condemnation nor punishment because it
does not, under the circumstances, violate the prohibition of the law, and indeed may be desired and encouraged. . . . Thus, conduct that is found to be justified
is, under the circumstances, not criminal.’’ (Citation
omitted; internal quotation marks omitted.) Id., 752–53;
see, e.g., State v. Yanz, 74 Conn. 177, 186,
50 A. 37 (1901)
(Hamersley, J., dissenting) (‘‘killing in self-defense is
not a crime’’); State v. Scheele, 57 Conn. 307, 314,
18 A.
256 (1889) ( ‘‘reasonable exercise of the right [of self-defense is] justifiable and not a crime at all’’); Morris
v. Platt, 32 Conn. 75, 83 (1864) (‘‘no man is liable in a
. . . criminal prosecution for an injury lawfully committed in self-defense [on] an actual assailant’’); see
also, e.g., Thomas v. Leeke, 725 F.2d 246, 249–50 n.2
(4th Cir.) (‘‘Rooted in the Anglo-American tradition is
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State v. Williams
the belief that a killing in self-defense is not a crime.
. . . [I]t is elementary and fundamental to our jurisprudence that killing or wounding in self-defense is simply
no crime at all . . . .’’ (Citations omitted.)), cert.
denied, 469 U.S. 870,
105 S. Ct. 218,
83 L. Ed. 2d 148
(1984); Commission to Revise the Criminal Statutes,
Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-16
(West 2023), commission comment, p. 559 (self-defense
statute ‘‘state[s] [a rule] of law under which the use of
force is justified and thus not criminal’’).
The question, then, is whether self-defense is a justification defense to a charge of reckless manslaughter of
a third-party victim who was not the aggressor against
whom a defendant was justified in using self-defense.
Although we have not previously had occasion to consider this precise question, an early decision from this
court is helpful to our analysis. In Morris v. Platt, supra,32 Conn. 75, this court considered whether a defendant
who, in lawful self-defense, fires a pistol at an assailant
but misses and wounds an innocent bystander may be
civilly liable for the resultant injury, even if the defendant was not negligent. See id., 81, 84. The court reasoned that ‘‘[a] man who is assailed, and under such
circumstances as to authorize a reasonable belief that
the assault is with design to take his life, or do him
extreme bodily injury [that] may result in death, will
be justified in the eye of the criminal law if he kill[s]
his assailant, and in an action of trespass, if he unsuccessfully attempt[s] to kill him, and he surviving brings
his action, for the killing would have been lawful and
of course the attempt lawful; and no man is liable in a
civil suit or criminal prosecution for an injury lawfully
committed in self-defense [on] an actual assailant.’’ Id.,
83. As to injured bystanders, the court explained that
‘‘[i]t is well settled in this court that a man is not liable, in
an action of trespass on the case, for any unintentional
consequential injury resulting from a lawful act, [when]
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State v. Williams
neither negligence nor folly can be imputed to him,
and that the burden of proving the negligence or folly,
[when] the act is lawful, is [on] the plaintiff.’’ Id., 84.
As a result, this court concluded that, for purposes of
determining liability, there is no reason to draw any
distinction between a directly injured plaintiff and one
who was injured indirectly. See id., 87–88. It is ‘‘the
nature of the accident, whether avoidable or unavoidable under the circumstances, or inevitable,’’ that is
relevant to the liability inquiry—not whether ‘‘the injury
was direct or consequential.’’ Id., 87. In at least one
criminal case in Connecticut since Morris was decided,
a trial court provided a self-defense jury instruction
when an innocent bystander was killed. See State v.
Jones, 39 Conn. App. 563, 564–65, 568,
665 A.2d 910
(self-defense jury instruction was provided in case in
which defendant was hiding behind tree and took out
his gun to shoot at rival gang member who was looking
for him but inadvertently shot five year old girl in face
as she passed by in car driven by her grandmother),
cert. denied, 235 Conn. 931,
667 A.2d 800 (1995).
State courts in nearly one half of the country have
held that the killing of, or injury to, a bystander is
justified if done in self-defense. See, e.g., F. Tinio,
Annot., ‘‘Unintentional Killing of or Injury to Third Person During Attempted Self-Defense,’’ 55 A.L.R.3d 620,
623–24, § 3 [a] (1974) (citing cases from twenty-one
states that recognize principle); see also, e.g., F. Tinio,
supra, 55 A.L.R.3d, § 3 [a], p. 132 (Supp. 2021) (citing
cases from three more states that recognize principle).
Many of those courts have applied this rule, even when
the crime charged requires a reckless mental state. See,
e.g., F. Tinio, supra, 55 A.L.R.3d, § 4 [b], pp. 631–34
(1974). As the American Law Reports explain, ‘‘[i]f . . .
the perpetrator of the homicide or of the assault had
no criminal intent in attempting to injure or kill another
person, as [when] the perpetrator was lawfully defending
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himself from the harm sought to be inflicted [on] him
by such other person, the fact that, on that occasion,
a third person was unintentionally injured or killed by
the perpetrator would not make him liable, unless the
perpetrator acted carelessly or without regard to the
safety of innocent bystanders. This view has been applied
in a variety of circumstances in which the perpetrator
of the homicide or assault has been prosecuted for
murder, manslaughter, or assault, based [on] injury to,
or death of, a third person.’’ (Footnotes omitted.) Id.,
§ 2, pp. 622–23. Similarly, Professor Wayne R. LaFave
has explained the principle as follows: ‘‘[S]uppose A
shoots at B [in self-defense] but, missing B, hits and
kills or injures C, an innocent bystander. If A aims at
his attacker B in proper self-defense, but hits C instead,
he is not generally guilty of murder or battery of C.
Once again, he is only as guilty as to C as he would
have been had his aim been accurate enough to have
hit B.’’ 1 W. LaFave, Substantive Criminal Law (3d Ed.
2018) § 6.4 (d), pp. 648–49.
Indeed, appellate courts in other jurisdictions have
applied the theory of self-defense when the victim was
in close proximity to the initial aggressor but not the
defendant, and the defendant fired his gun, even though
there were people, other than the aggressor, nearby.
See, e.g., Nelson v. State, 853 So. 2d 563, 564–65 (Fla.
App. 2003) (trial court erred in failing to give requested
self-defense instruction when defendant had fired gun
into nearby crowd of twenty to thirty people); People
v. Adams, 9 Ill. App. 3d 61, 62–64,
291 N.E.2d 54 (1972)
(conviction was reversed when defendant had fired gun
at assailant who was in driver’s seat and bullets passed
through his body and killed passenger); Commonwealth
v. Fowlin, 551 Pa. 414, 415,
710 A.2d 1130 (1998) (defendant fired gun in nightclub when approximately 200
people were present).
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In cases involving prosecutions for manslaughter,
state appellate courts have held that a defendant’s unintentional injury to, or killing of, a third person while
defending himself either was or could be found justifiable when it was or could be shown from the circumstances that the defendant properly exercised the right
of self-defense. See, e.g., Brown v. State, 84 Fla. 660, 661,
94 So. 874 (1922); Butler v. State,
92 Ga. 601, 603–604,
19 S.E. 51 (1893); Olds v. State,
84 Ga. App. 397, 402–403,
66 S.E.2d 396 (1951); People v.
Adams, supra, 9 Ill. App.
3d 63–64; Gray v. Commonwealth, 247 Ky. 282, 285,
57
S.W.2d 6 (1933); State v. Sherwood,
39 N.M. 518, 519–20,
50 P.2d 968 (1935); State v. Clifton,
32 Ohio App. 2d
284, 284, 286–87,
290 N.E.2d 921 (1972); Jackson v.
State, 66 Tex. Crim. 469, 469–70,
147 S.W. 589 (1912).
The state contends that a self-defense instruction is
inconsistent with reckless manslaughter. At oral argument before this court, the assistant state’s attorney
argued that, if the state proves the elements of manslaughter in the first degree with a firearm, it will necessarily have negated the defense of self-defense because
reckless conduct, by definition, cannot be considered
reasonable for purposes of the justification of self-defense. Connecticut appellate courts, however, have
determined that ‘‘[s]elf-defense is a valid defense to
crimes based on reckless conduct as well as intentional
conduct.’’ State v. Jones, supra,39 Conn. App. 567 n.4;
see also, e.g., State v. Hall, supra,213 Conn. 586 (defendant was entitled to self-defense jury instruction for
lesser included offense of manslaughter in second
degree); State v. King, 24 Conn. App. 586, 591,
590 A.2d
490 (‘‘[because] the defense of self-defense is available
for murder, which is the extreme indifference to human
life, it would be anomalous to conclude that the defense
was not applicable to the lesser included offense of
reckless manslaughter in the first degree’’), cert. denied,
219 Conn. 912,
593 A.2d 136 (1991).
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In State v. Hall, supra,213 Conn. 579, we were asked
to consider whether the crime of manslaughter in the
second degree and the defense of self-defense are mutually incompatible. See id., 584. We began our analysis
by noting ‘‘the difficulty a jury has in weighing the
justifiability of risk and action inherent in the crime of
manslaughter in the second degree and the concept of
self-defense . . . .’’ (Internal quotation marks omitted.) Id. We further observed that, ‘‘[i]n matters involving such esoteric concepts, the jury should have the
benefit of as much information and instruction as will
aid [it] in arriving at a just verdict.’’ (Internal quotation
marks omitted.) Id., 585. We concluded that, when the
evidence warrants the instruction, ‘‘the trial court must
instruct the jury on self-defense in cases involving the
charge of manslaughter in the second degree.’’ Id.
In support of our conclusion in Hall, we also focused
on the distinctions in the statutory definitions between
the defense of self-defense and the crime of manslaughter in the second degree. We explained that ‘‘§ 53a-
19, in subsection (a), provides [in relevant part] that,
subject to the exceptions in subsections (b) and (c), ‘a
person is justified in using reasonable physical force
upon another person to defend himself . . . from what
he reasonably believes to be the use or imminent use
of physical force, and he may use such degree of force
which he reasonably believes to be necessary for such
purpose . . . .’ ’’ (Emphasis in original.) Id. We noted
that, in contrast, ‘‘General Statutes § 53a-56 (a) provides
in [relevant] part: ‘A person is guilty of manslaughter
in the second degree when: (1) He recklessly causes
the death of another person . . . .’ ’’ Id. We further
observed that ‘‘[a] person acts recklessly with respect
to a result or to a circumstance described by a statute
defining an offense when he is aware of and consciously
disregards a substantial and unjustifiable risk that such
result will occur or that such circumstance exists. The
risk must be of such nature and degree that disre-
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garding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe
in the situation.’’ (Emphasis in original; internal quotation marks omitted.) Id., 585–86. We emphasized in Hall
that § 53a-19 ‘‘focuses on the person . . . claiming self-defense. It focuses on what he reasonably believes
under the circumstances and presents a question of
fact. . . . Self-defense thus requires the trier of fact to
measure the justifiability of the defendant’s actions
from a subjective perspective.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Id., 586; see also, e.g., State v. DeJesus, 194 Conn. 376,
388–89, 481 A.2d 1277 (1984); State v. Corchado,
188
Conn. 653, 663,
453 A.2d 427 (1982). We contrasted the
subjective analysis required by § 53a-19 with manslaughter in the second degree, which ‘‘requires the
trier of fact to view the justifiability of the defendant’s
risk and action from the objective perspective of a reasonable person. It is this distinction that allows self-defense to be an applicable defense to . . . § 53a-56
(a) (1).’’ State v. Hall, supra,213 Conn. 586.
The rationale from Hall applies with equal force to
the present case. Here, as this court emphasized in
Hall, self-defense under § 53a-19 focuses on the person
claiming self-defense. Id. The relevant inquiry is what
that person ‘‘reasonably believes under the circumstances . . . .’’ (Internal quotation marks omitted.) Id.
In other words, ‘‘[s]elf-defense . . . requires the trier
of fact to measure the justifiability of the defendant’s
actions from a subjective perspective.’’7 (Emphasis
7
We note that, at oral argument, the assistant state’s attorney implied that
a different rule should apply when a third party is killed while the defendant
is acting in self-defense. We are not persuaded. General Statutes (Rev. to 2017)
§ 53a-16 provides that, ‘‘[i]n any prosecution for an offense, justification, as
defined in [among other statutes, § 53a-19], shall be a defense.’’ (Emphasis
added.) Our legislature did not carve out an exception to the applicability of
the justification of self-defense when a bystander is accidentally killed rather
than the initial aggressor. We decline to adopt an exception when the legislature
has not done so.
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added.) Id. Reckless manslaughter in the first degree
under General Statutes § 53a-55 (a) (3),8 on the other
hand, focuses on ‘‘the justifiability of the defendant’s
risk and action from the objective perspective of a reasonable person.’’ (Emphasis added.) Id. Thus, under the
theory of self-defense, conduct that may be a ‘‘gross
deviation from the standard of conduct that a reasonable person would observe in the situation’’ may nevertheless be ‘‘justified if the defendant’s beliefs are
reasonable from’’ the defendant’s perspective. (Internal
quotation marks omitted.) Id. Having concluded in Hall
that a trial court must instruct the jury on self-defense
for a reckless manslaughter charge when the evidence
We also note that § 53a-19 does not expressly preclude the application of
self-defense in the third-person context, and the facts of the present case fit
comfortably within the language of § 53a-19. Specifically, the defendant contends that Smith was killed because the defendant was ‘‘using reasonable
physical force’’ against Martin when the defendant ‘‘reasonably believe[d]’’ that
Martin was ‘‘using or about to use deadly physical force’’ against him. General
Statutes § 53a-19 (a). Although the statute requires that the defense be available
only if the defendant is using physical force against the assailant, it does not
require that the resulting harm be inflicted on the assailant. Viewed against the
backdrop of Connecticut common law; see, e.g., State v. Leniart, 333 Conn.
88, 109,
215 A.3d 1104 (2019) (‘‘the savings clause to the Penal Code provides,
and our cases recognize, that the common law is preserved under the code
unless clearly preempted; the code does not bar our courts from recognizing
. . . other defenses not inconsistent with statute’’ (internal quotation marks
omitted)); the doctrine of self-defense is applicable even when an allegedly
innocent third party is injured or killed. See, e.g., Morris v. Platt, supra,32
Conn. 84 (rejecting argument that ‘‘a man lawfully exercising the right of self-defense . . . is liable to third persons for any and all unintentional, accidental
injurious consequences [that] may happen to them’’ (emphasis in original)).
Connecticut’s common law also reinforces the notion that, when exercising
the right of self-defense, a defendant must act with due care for innocent
bystanders and that this issue is one for the jury to decide.
8
The defendant was charged with, and convicted of, manslaughter in the
first degree with a firearm in violation of § 53a-55a (a). Section 53a-55a (a)
provides that ‘‘[a] person is guilty of manslaughter in the first degree with a
firearm when he commits manslaughter in the first degree as provided in
section 53a-55’’ and, among other things, uses a firearm in the commission of
the offense. (Emphasis added.) Accordingly, we look to the provisions of § 53a-
55 (a) for guidance as to the other relevant elements of the crime.
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warrants such an instruction, we further conclude that
the defense is available regardless of whether the victim
is a bystander or the alleged aggressor.
We recognize that this subjective-objective rationale
from Hall appears to be in tension with our recent
decision in State v. Johnson, 351 Conn. 53,
328 A.3d
143 (2025), in which we explained that ‘‘four conditions
must exist for an act of violence to be justified on the
grounds of self-defense . . . (1) the defendant must
actually have believed that the victim was using or was
about to use physical force against him . . . (2) a reasonable person, viewing all the circumstances from the
defendant’s point of view, would have shared that belief,
(3) the defendant must actually have believed that the
degree of force he used was necessary for defending
himself . . . and (4) a reasonable person, viewing all
the circumstances from the defendant’s point of view,
also would have shared that belief.’’ (Internal quotation
marks omitted.) Id., 61. Nevertheless, there were two
grounds for our conclusion in Hall: the subjective-objective distinction; see State v. Hall, supra, 213 Conn.
585–86; and the fact that, in ‘‘esoteric’’ matters, the jury
should have as much information as possible. (Internal
quotation marks omitted.) Id., 585. Even if we give less
weight to the first ground in Hall, we are still persuaded
that there is an inherent difficulty for a jury, comprised
of lay people, ‘‘in weighing the justifiability of risk and
action inherent in the crime of [reckless] manslaughter
. . . and the concept of self-defense . . . .’’ (Internal
quotation marks omitted.) Id., 584. Accordingly, it is
reasonable to provide the jury a thorough explanation
of self-defense in this context to enable it to arrive at
a just verdict.
Although the state urges this court to conclude that
the defense of self-defense is inapplicable to a charge of
reckless manslaughter when a third party is the victim,
it recognizes that, when a perpetrator acts in lawful
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self-defense and unintentionally kills a third person, the
perpetrator is generally not liable. The state emphasizes, however, that a perpetrator may still be liable if
the perpetrator ‘‘acted carelessly or without regard to
the safety of innocent bystanders.’’ (Emphasis omitted;
internal quotation marks omitted.) This, of course, is
true. The state, however, relies on this proposition to
conclude that a self-defense instruction is never warranted for a charge of reckless manslaughter of an unintended or third-party victim. But whether the perpetrator,
evincing an extreme indifference to human life, acted
recklessly or without regard to the safety of innocent
bystanders or acted in self-defense as defined by statute
is a factual question that must be left for the trier of
fact to decide. See, e.g., State v. Hall, supra,213 Conn.
586 (‘‘[Section 53a-19] focuses on the person . . .
claiming self-defense. It focuses on what he reasonably
believes under the circumstances and presents a question of fact.’’ (Emphasis altered; internal quotation marks
omitted.)). If the trier of fact concludes that a defendant’s exercise of the right of self-defense was not reasonable, the killing of the bystander may amount to
manslaughter. See, e.g., 1 W. LaFave, supra, § 6.4 (d),
p. 649 n.68 (‘‘[T]he situation may be such that A ought
not to shoot at B in self-defense, etc., because of the
presence of bystanders like C whom A might hit instead.
If there is a high degree of risk to people like C involved
in A’s shooting at B, A’s killing of C will amount to
manslaughter . . . .’’ (Citations omitted.)).
Finally, the state contends that public policy supports
its position. It argues that ‘‘holding self-defenders liable
for reckless offenses against third parties sufficiently
balances [the] competing concerns of the right to self-defense and the right of bystanders to an appropriate
degree of care.’’ (Internal quotation marks omitted.) We
find the reasoning of the Pennsylvania Supreme Court
on this point more persuasive. The Pennsylvania high
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court explained that ‘‘the law of Pennsylvania does not
require one to stand by helplessly while he is injured
or killed by an assailant. And . . . when one is the
victim of an attack, the assailant, not the victim, picks
the time, the place, the manner, and the circumstances
of the attack. Leisurely assessment of the circumstances and the danger to others is almost never a
feature of such an assault, and most often, the best the
victim can do is to mount a defense [that] hopefully
will preserve his life. In many cases, the victim has only
seconds to act in order to avoid injury or death. . . .
Any victim of crime who justifiably exercises his right of
self-preservation may inadvertently injure a bystander.
Admittedly, [the Pennsylvania high] court could fashion a rule of law [that] holds the defender criminally
liable, but in doing so, [it] would have furthered no
policy of the criminal law. Instead, [the court] would
have punished a person who was acting within his
instinct for self-preservation and, in an appropriate
case, within the boundaries of [the] law.’’ (Emphasis
added.) Commonwealth v. Fowlin, supra, 551 Pa. 420–
21. When a person unintentionally injures or kills a
third-party bystander while using justifiable force in
self-defense, that person does not have any criminally
culpable intent. Therefore, we agree with the Pennsylvania Supreme Court that punishment of that person
would serve no policy of the criminal law.
We nonetheless emphasize that the right to self-defense is not absolute. It is restrained by the reasonableness of the defendant’s actions. Additionally, it may
not be used to absolve a person who acted without
justification and claimed self-defense. Connecticut’s
self-defense statute provides that a person is not justified in using deadly physical force on another if (1)
they can avoid the necessity of using such force by
retreating in certain circumstances, (2) with the intent
to cause physical injury or death to another person, they
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provoke the use of physical force by the other person,
(3) they are the initial aggressor, or (4) the deadly physical force was the product of a combat by agreement
not specifically authorized by law. See General Statutes
§ 53a-19 (b) and (c). These limitations on the justification of self-defense ameliorate the state’s concern regarding unnecessary danger to third-party bystanders because,
if the person acts outside of the parameters established
by law, then their act is not justified, and they may be
prosecuted for any injury to a bystander that they may
inflict. See, e.g., Commonwealth v. Fowlin, supra,551
Pa. 421. In sum, we conclude that, when the evidence
reasonably supports a finding of self-defense, a trial
court is required to provide an instruction on self-defense
on a charge of manslaughter in the first degree. See,
e.g., State v. Arroyo, supra, 284 Conn. 607–608.
Here, the evidence reasonably supported a self-defense instruction on the reckless manslaughter charge
given that the trial court instructed the jury on self-defense on the murder charge, which the state does
not contend was improper. Reviewing the evidence in
the light most favorable to supporting the proposed
instruction; see, e.g., id.; we emphasize that Martin initiated the violent altercation by firing shots at the defendant from behind the passenger side of the car in which
Smith was seated in the driver’s position. One of Martin’s shots struck the defendant in the leg, causing him
to fall to the ground. While falling, the defendant
returned fire at Martin, ultimately striking and killing
Smith instead, who was situated in a space between
Martin and the defendant. It was for the jury to decide,
on the basis of the evidence presented at trial, whether
the defendant actually and reasonably believed that the
nature of the threat and degree of force were necessary
to protect himself. If there is evidence to support the
proposed charge, the trial court must give the instruction, and it is for the jury to determine how to weigh
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the evidence. See, e.g., State v. Person, 236 Conn. 342,
347–48, 673 A.2d 463 (1996). Because the defendant’s
request to charge on self-defense as to the charge of
manslaughter in the first degree with a firearm was
‘‘relevant to the issues of [the] case and . . . [was]
an accurate statement of the law,’’ the trial court was
required to provide a full self-defense instruction. (Internal
quotation marks omitted.) State v. Arroyo, supra,284
Conn. 608. Having concluded that the trial court erred
in declining to provide the jury with a self-defense
instruction on the count of manslaughter in the first
degree with a firearm, we must determine whether that
error was harmless. See, e.g., State v. Hall, supra,213
Conn. 587.
The trial court failed to provide a complete jury
instruction on self-defense as to the manslaughter in
the first degree with a firearm charge when the sole
issue in the case was whether the defendant’s actions
were justified. Because the jury found the defendant
not guilty of murder, indicating on an interrogatory that
the state had not proven all of the elements of murder,
the jury had no occasion to consider whether the defendant acted in self-defense in connection with that
charge, and the trial court did not properly inform the
jury how it should consider self-defense as to the manslaughter charge. Accordingly, we cannot conclude that
the trial court’s failure to provide a self-defense instruction for the manslaughter charge was harmless beyond
a reasonable doubt. See, e.g., State v. King, supra, 24
Conn. App. 590–91 (The trial court’s failure to provide
a self-defense instruction could not ‘‘be construed as
harmless because, although the defendant was acquitted of murder . . . [he] was convicted of the unintentional offense of reckless manslaughter in the first
degree. [The] jury returned a guilty verdict against the
defendant for a crime [for] which it was not allowed
to consider the defense of self-defense. . . . [The
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Appellate Court could not] conclude that the conviction
. . . was necessarily a rejection of the defense of self-defense by the jury because the jury [found] the defendant [not guilty] of the two crimes [for] which it was
allowed to consider the defense of self-defense.’’).
The state, however, contends that there is not a reasonable possibility that the jury was misled in reaching
its verdict because the trial court’s overall instructions
sufficiently conveyed the appropriate concepts to the
jury. We disagree. Contrary to its prior instruction on
self-defense as to the murder charge, regarding the
charge of manslaughter in the first degree with a firearm, the court instructed the jury that it must ‘‘consider
all of the circumstances confronting the defendant,
including whether he had a valid claim to self-defense
and whether he exercised self-defense reasonably or
whether he exercised it recklessly. Although the state
does not need to disprove self-defense beyond a reasonable doubt to convict on this count, it must still prove
that the defendant, under circumstances evincing an
extreme indifference to human life, recklessly engaged
in conduct [that] created a grave risk of death to another
person.’’ (Emphasis added.) The court provided no definition of ‘‘self-defense’’ as to the manslaughter charge,
and it did not incorporate by reference the prior instruction on self-defense that was provided in connection
with the murder charge. The challenged instruction also
diluted the state’s burden of proof by failing to provide
the jury with any context-specific understanding of the
meaning of self-defense, especially when the court had
previously instructed the jury that it must ‘‘not apply
any common or colloquial meaning’’ of self-defense.9 As
9
Indeed, the jury had no understanding of the meaning of self-defense as it
applied to the reckless manslaughter charge, and the information that the trial
court did provide with respect to that charge directly conflicted with its earlier
instruction on self-defense. We recognized in Hall ‘‘the difficulty a jury has in
weighing the justifiability of risk and action inherent in the crime of [reckless]
manslaughter . . . and the concept of self-defense . . . .’’ (Internal quotation
marks omitted.) State v. Hall, supra,213 Conn. 584. We have further observed
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a result, the mention of self-defense in the manslaughter
jury instruction left nothing meaningful for the jury to
apply, particularly when the court specifically informed
the jury that ‘‘the state does not need to disprove self-defense beyond a reasonable doubt to convict on this
count’’; (emphasis added); which is diametrically at
odds with a proper self-defense instruction. See, e.g.,
State v. Singleton, 292 Conn. 734, 747,
974 A.2d 679
(2009) (‘‘it [is] the state’s burden to disprove the defense
[of self-defense] beyond a reasonable doubt’’ (internal
quotation marks omitted)).
The state contends that the jury would necessarily
have referred to the definition of self-defense provided
in the context of the murder charge. We will not make
this assumption given the well settled principle that a
jury is presumed to follow the trial court’s instructions.
See, e.g., State v. Pappas, 256 Conn. 854, 889,
776 A.2d
1091 (2001). Because the jury determined that the state
failed to prove all of the elements of the murder charge,
it would have had no reason to parse the language of
the self-defense instruction during its deliberations. Cf.
State v. Espinal, 208 Conn. App. 369, 418–20,
264 A.3d
1003, cert. denied,
340 Conn. 916,
266 A.3d 886 (2021).
The trial court instructed the jury as much by
explaining, ‘‘if you unanimously find that the state has
failed to prove beyond a reasonable doubt either of the
elements of murder, you shall . . . find the defendant
not guilty as to that offense and not consider the defense
of self-defense as to that offense.’’ (Emphasis added.)
In sum, the trial court did not instruct the jury about
who had the burden with respect to self-defense, and
the jury lacked a complete and proper instruction on
self-defense. The limited instruction the jury did receive
that, ‘‘[i]n matters involving such esoteric concepts, the jury should have the
benefit of as much information and instruction as will aid [it] in arriving at a
just verdict.’’ (Internal quotation marks omitted.) Id., 585. The jury should have
been provided with a complete and thorough explanation of these concepts.
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was also not a correct statement of the law because
the court informed the jury that, with respect to the
manslaughter count, the state did not need to disprove
self-defense beyond a reasonable doubt. This is directly
at odds with the self-defense instruction the court had
previously given the jury with respect to the murder
charge. We conclude, therefore, that the trial court’s
failure to provide a jury instruction on self-defense as
to the charge of manslaughter in the first degree with
a firearm was not harmless beyond a reasonable doubt.
II
Finally, we address the defendant’s contention that
his conviction of both criminal possession of a firearm
and criminal possession of ammunition violates double
jeopardy because the legislature did not intend for a
person who is convicted of illegally possessing a gun
also to be convicted of illegally possessing the ammunition contained within the gun. We agree.
The following additional facts and procedural history
are relevant to our analysis. In count three of the substitute information, the state charged the defendant with
criminal possession of a firearm in violation of § 53a-
217 (a), alleging ‘‘that, on or about August 12, 2017, at
approximately 2 a.m., at or near the area of 23 East
Farms Street, Waterbury . . . the [defendant] did possess a firearm and had been previously convicted of a
felony.’’ In count four, the state charged the defendant
with criminal possession of ammunition under the same
provision, alleging ‘‘that, on or about August 12, 2017,
at approximately 2 a.m., at or near the area of 23 East
Farms Street, Waterbury . . . the [defendant] did possess ammunition and had been previously convicted of
a felony.’’
The defendant elected to be tried by the court on
these counts, as well as on count five, which alleged
that the defendant was carrying a pistol without a per-
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mit. The parties stipulated that the defendant possessed
a nine millimeter handgun, that he possessed ammunition, and that he was previously convicted of a felony.
The trial court found that the stipulation satisfied the
elements of both criminal possession of a firearm and
criminal possession of ammunition, noting that surveillance video footage also provided strong circumstantial
evidence that the defendant possessed a firearm, ‘‘the
bullets, [and] the casing[s] . . . .’’ Accordingly, the
court found the defendant guilty of counts three and
four and sentenced him to two concurrent sentences
of ten years of incarceration, which were to be served
consecutively to the thirty-five year sentence that he
received for manslaughter in the first degree with a
firearm.
The defendant seeks review of this unpreserved claim
pursuant to State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), as modified by In re Yasiel R.,
317
Conn. 773, 781,
120 A.3d 1188 (2015).10 We conclude
that the record is adequate for review and that a double
jeopardy violation implicates a defendant’s constitutional rights. See, e.g., State v. Alvaro F., 291 Conn. 1,
5 n.8, 966 A.2d 712 (reviewing double jeopardy claim
under Golding), cert. denied, 558 U.S. 882,
130 S. Ct.
200,
175 L. Ed. 2d 140 (2009). Accordingly, we turn to
the merits of the defendant’s claim. See, e.g., State v.
Fabricatore, 281 Conn. 469, 477,
915 A.2d 872 (2007).
A defendant’s double jeopardy claim presents a question of law, over which our review is plenary. See, e.g.,
10
‘‘Under Golding, a defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following conditions are met: (1) the
record is adequate to review the alleged claim of error; (2) the claim is of
constitutional magnitude alleging the violation of a fundamental right; (3) the
alleged constitutional violation . . . exists and . . . deprived the defendant
of a fair trial; and (4) if subject to harmless error analysis, the state has failed
to demonstrate [the] harmlessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis omitted; internal quotation marks omitted.)
State v. Outlaw, 350 Conn. 251, 257,
324 A.3d 107 (2024).
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State v. Williams
State v. Cody M., 337 Conn. 92, 99,
259 A.3d 576 (2020).
‘‘The fifth amendment to the United States constitution
provides in relevant part: No person shall . . . be subject for the same offense to be twice put in jeopardy
of life or limb . . . . The double jeopardy clause of
the fifth amendment is made applicable to the states
through the due process clause of the fourteenth
amendment.’’ (Internal quotation marks omitted.) State
v. Ruiz-Pacheco, 336 Conn. 219, 226,
244 A.3d 908
(2020). When a criminal defendant is convicted of multiple violations of the same statutory provision, the double jeopardy analysis requires that we determine
whether ‘‘the legislature intended to punish the individual acts separately or to punish only the course of action
which they constitute. . . . This analysis essentially
asks what unit of prosecution the legislature intended
as the punishable act under the statute. . . . The unit
of prosecution analysis involves an effort to determine
the legislature’s intent as to whether and how a course
of prohibited conduct can be separat[ed] into parts,
each of which in itself constitutes a completed offense.
. . . In [some] instances, the legislature intends to punish separately each discrete act that constitutes a completed offense.’’11 (Citations omitted; internal quotation
marks omitted.) Id., 227–28. The issue, though constitutional, becomes one of statutory construction. E.g.,
State v. Rawls, 198 Conn. 111, 120,
502 A.2d 374 (1985).
Accordingly, we review § 53a-217 in accordance with
General Statutes § 1-2z and our familiar principles of
statutory construction. See, e.g., Sena v. American Med-
11
The state contends that the defendant’s double jeopardy claim also fails
under the Blockburger test. See Blockburger v. United States, 284 U.S. 299,
304,
52 S. Ct. 180,
76 L. Ed. 306 (1932). The Blockburger test applies, however,
‘‘[w]hen [a] defendant is charged with the violation of two distinct statutes in
a single criminal proceeding arising from a single underlying set of events
. . . .’’ (Emphasis added.) State v. Ruiz-Pacheco, supra, 336 Conn. 226–27.
Because the defendant was charged with two violations of the same statutory
provision, § 53a-217 (a) (1), the Blockburger test is inapplicable.
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State v. Williams
ical Response of Connecticut, Inc., 333 Conn. 30, 45–46,
213 A.3d 1110 (2019).
Given that § 53a-217 is a penal statute, we are mindful
that ‘‘[c]ourts must avoid imposing criminal liability
[when] the legislature has not expressly so intended.’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Harrell, 238 Conn. 828, 832,
681 A.2d 944 (1996).
Penal laws are generally strictly construed against the
state and ‘‘are not to be read more broadly than their
language plainly requires and ambiguities are ordinarily
to be resolved in favor of the defendant.’’ (Internal quotation marks omitted.) State v. King, 249 Conn. 645,
681,
735 A.2d 267 (1999). ‘‘[T]he touchstone of [the] rule
of lenity is statutory ambiguity. . . . Thus, as the
United States Supreme Court has explained, courts do
not apply the rule of lenity unless a reasonable doubt
persists about the statute’s intended scope even after
resort to the language and structure, legislative history,
and motivating policies of the statute.’’ (Emphasis omitted; internal quotation marks omitted.) American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192,
206,
937 A.2d 1184 (2008). ‘‘Lenity thus serves only as
an aid for resolving an ambiguity; it is not to be used
to beget one. The rule comes into operation at the end
of the process of construing what [the legislature] has
expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers.’’ (Internal quotation marks omitted.) Albernaz v. United States, 450
U.S. 333, 342,
101 S. Ct. 1137,
67 L. Ed. 2d 275 (1981).
We begin with the text of the statute. Pursuant to
§ 53a-217 (a), ‘‘[a] person is guilty of criminal possession
of a firearm, ammunition or an electronic defense
weapon when such person possesses a firearm, ammunition or an electronic defense weapon and (1) has been
convicted of a felony committed prior to, on or after
October 1, 2013 . . . .’’ ‘‘Firearm’’ is statutorily defined
as ‘‘any sawed-off shotgun, machine gun, rifle, shotgun,
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State v. Williams
pistol, revolver or other weapon, whether loaded or
unloaded from which a shot may be discharged . . . .’’
General Statutes § 53a-3 (19). For the purposes of § 53a-
217, the term ‘‘ammunition’’ is defined as ‘‘a loaded
cartridge, consisting of a primed case, propellant or
projectile, designed for use in any firearm . . . .’’ General Statutes (Rev. to 2017) § 53a-217 (a). The statutory
definition of ‘‘firearm’’ implicitly includes ammunition
when the firearm is loaded, as a ‘‘firearm’’ is a gun
‘‘whether loaded or unloaded . . . .’’ General Statutes
§ 53a-3 (19). It seems unlikely that the legislature would
include ammunition in the definition of ‘‘firearm’’ yet
still intend to treat the criminal possession of both a
firearm and ammunition as two separate crimes. Construing the statute to mean that a person who is guilty
of criminal possession of a firearm is also guilty of
criminal possession of ammunition for the same incident would result, in every case in which a gun is loaded,
and the other requirements of the statute are met, in
that person being guilty of two crimes. After all, ammunition is necessary to fire a gun.
The state argues, however, that the legislature’s use
of the disjunctive ‘‘or’’ in connection with ‘‘firearm’’ and
‘‘ammunition’’ in § 53a-217 (a) ‘‘indicates the unambiguous meaning that possession of each item is a separate
unit of prosecution that can be criminalized.’’ It is true
that ‘‘[s]tatutory terms or phrases separated by ‘or’ have
separate and independent significance. The word ‘or’
normally is presumed to be used in the disjunctive sense
in the absence of a clear legislative intent to the contrary.’’ (Footnote omitted.) 82 C.J.S., Statutes § 425
(2025). Given the tension between the relevant definitions of ‘‘firearm’’ and ‘‘ammunition,’’ and the presumptive meaning of ‘‘or,’’ we conclude that the statute is
ambiguous. Accordingly, we look to the statute’s legislative history to determine whether the legislature
intended to punish someone for criminally possessing
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State v. Williams
a firearm as well as the ammunition found inside the
firearm used during a single incident as two separate
crimes. See General Statutes § 1-2z.
Prior to 2013, § 53a-217 criminalized the criminal possession of only ‘‘a firearm or electronic defense weapon
. . . .’’ General Statutes (Rev. to 2013) § 53a-217 (a). In
2013, however, the legislature amended the statute to
criminalize the possession of ammunition as part of a
larger amendment pertaining to firearms, which was
prompted by the 2012 mass shooting at Sandy Hook
Elementary School in Newtown. See Public Acts 2013,
No. 13-3, § 44 (titled ‘‘An Act Concerning Gun Violence
Prevention and Children’s Safety’’). The legislative history makes clear that the legislature wanted to enact
legislation that would prevent mass shootings and
strengthen gun laws. See, e.g., 56 H.R. Proc., Pt. 3, 2013
Sess., p. 878, remarks of Representative Joe Aresimowicz. Significantly, Senator Martin M. Looney explained
that ‘‘[o]ne of the great flaws in our law up until [that
point was] that someone who was in illegal possession
of a gun, because he was a convicted criminal or one of
the other reasons for . . . legal disability under our
statutes, was able to . . . go in and legally buy ammunition for the gun which he was unable to possess legally.
We are closing that loophole in our law with a provision
in this, in this current bill. So we have the significant
expansion of our, of our permitting and our . . . background checks, which is something that will put us, I
think, in a much better position in terms of protecting
public safety.’’ 56 S. Proc., Pt. 2, 2013 Sess., p. 543.
Although not specifically discussed, the addition of
‘‘ammunition’’ in § 53a-217 appears to be directed to a
situation in which someone, who was not legally
allowed to have ammunition, was found in possession
of ammunition, such as on their person or in a car, but
not in a loaded gun. See, e.g., 56 H.R. Proc., Pt. 4, 2013
Sess., pp. 1139–40, remarks of Representative Douglas
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State v. Williams
McCrory (‘‘what I’m clear on now is the fact that if an
individual had an altercation, which could be designated
as a third degree assault, and after the passage of this
legislation, if that individual is found with a bullet maybe
in his car, maybe in his possession, that person is being
a felon and will require a [two year] jail sentence and a
mandatory [two year] jail time’’).
Even if consideration of the legislative history does not
lead to clarity as to the meaning of the statute, the rule
of lenity applies, and the defendant can be convicted of
only one crime under § 53a-217 when he possessed the
firearm and ammunition in one place, at one time. See, e.g.,
State v. Ruiz-Pacheco, supra, 336 Conn. 236–37. ‘‘Unless
a clear intention to fix separate penalties for each [criminal
possession of a firearm and possession of ammunition]
is expressed, the issue should be resolved in favor of
lenity and against turning a single transaction into multiple
offenses.’’ State v. Rawls, supra,198 Conn. 122. The defendant’s conviction of both criminal possession of a firearm
and criminal possession of ammunition, in the absence
of a clearly discernable legislative intent for multiple convictions under § 53a-217 (a) (1), is barred by the double
jeopardy clause. Cf. United States v. Berry, 977 F.2d 915,
919 (5th Cir. 1992) (‘‘The evil Congress sought to suppress
by [the statute] was the arming of felons; the [statute] is
based on the status of the offender and not the number
of guns possessed. For the same reasons, we cannot conclude that Congress intended the simultaneous possession
of ammunition to stand as a distinct unit of prosecution.’’
(Footnote omitted.)); People v. Lopez, 119 Cal. App. 4th
132, 138,
13 Cal. Rptr. 3d 921 (2004) (‘‘To allow multiple
punishment for possessing ammunition in a firearm would
. . . parse the [legislative] objectives too finely.
[Although] there may be instances when multiple punishment is lawful for possession of a firearm and ammunition,
the instant case is not one of them. [When], as here, all
of the ammunition is loaded into the firearm, an indivisible
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State v. Williams
course of conduct is present and [the statute] precludes
multiple punishment.’’ (Internal quotation marks omitted.)), cert. denied, 543 U.S. 1158,
125 S. Ct. 1312,
161 L.
Ed. 2d 127 (2005); State v. Nowels,
941 N.W.2d 430, 439
(Minn. App. 2020) (‘‘[t]he [trial] court erred by convicting
and sentencing [the defendant] for unlawful possession
of both a firearm and ammunition for possessing a single
loaded gun’’). Accordingly, the defendant’s conviction of
criminal possession of ammunition must be vacated.12
The judgment is reversed as to the conviction of manslaughter in the first degree with a firearm and the case
is remanded for a new trial on that charge, the judgment
as to the conviction of criminal possession of ammunition
is vacated, and the judgment is affirmed in all other
respects.
In this opinion MULLINS, C. J., and ECKER, ALEXANDER and DANNEHY, Js., concurred.
12
Although not discussed by the parties, with respect to Golding’s fourth
prong, we conclude that the error is not harmless. ‘‘Although we acknowledge
that the [trial] court sentenced the defendant to serve a concurrent sentence
for [both] offenses, we recognize that the conviction of both of the separate
offenses, in their own right, impermissibly harms the defendant.’’ (Internal
quotation marks omitted.) State v. Purvis, 227 Conn. App. 188, 220,
321 A.3d
1158, cert. denied,
350 Conn. 922,
325 A.3d 1093 (2024); see also, e.g., State v.
Polanco, 308 Conn. 242, 248–49, 255,
61 A.3d 1084 (2013) (when defendant’s
convictions violate double jeopardy, lesser included offense must be vacated);
State v. Carlos P., 171 Conn. App. 530, 536, 540,
157 A.3d 723 (agreeing with
defendant’s unpreserved claim that his conviction of sexual assault in first
degree and attempted sexual assault in first degree violated double jeopardy
and vacating defendant’s conviction of attempt to commit sexual assault in
first degree), cert. denied, 325 Conn. 912,
158 A.3d 321 (2017).
