four-pronged test in Connecticut

2016Specifically, the state contends that the defendant's claim implicates his common-law right to a jury instruction on a lesser included offense. 8 According to the state, to be entitled to a jury instruction on a lesser included offense, the party seeking the instruction must satisfy the four-pronged test established in State v. Whistnant , 179 Conn. 576 , 588, 427 A.2d 414 (1980), 9 and because the defendant did not satisfy these four prongs, he could not argue the elements of manslaughter, which is a lesser included offense of murder, to the jury in his closing argument.

2016Specifically, the state contends that the defendant's claim implicates his common-law right to a jury instruction on a lesser included offense. 8 According to the state, to be entitled to a jury instruction on a lesser included offense, the party seeking the instruction must satisfy the four-pronged test established in State v. Whistnant , 179 Conn. 576 , 588, 427 A.2d 414 (1980), 9 and because the defendant did not satisfy these four prongs, he could not argue the elements of manslaughter, which is a lesser included offense of murder, to the jury in his closing argument.

1986“In State v. Whistnant, 179 Conn. 576, 588 , 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the

1986“In State v. Whistnant, 179 Conn. 576, 588 , 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the

1986“In State v. Whistnant, 179 Conn. 576, 588 , 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the

1986“In State v. Whistnant, 179 Conn. 576, 588 , 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the

2010Indeed, this is precisely the position taken by our Appellate Court, which recently explained that, in Shabazz , this court “looked beyond the traditional four-pronged test for newly discovered evidence and [was] guided by the general principle of whether an injustice was done.” (Emphasis added.) Joyce v. State’s Attorney, 84 Conn. App. 195, 203 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004). 10 Furthermore, such a test makes eminent good sense.

2010Indeed, this is precisely the position taken by our Appellate Court, which recently explained that, in Shabazz , this court "looked beyond the traditional four-pronged test for newly discovered evidence and [was] guided by the general principle of whether an injustice was done. " (Emphasis added.) Joyce v. State's Attorney, 84 Conn.App. 195, 203 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004). [10] Furthermore, such a test makes eminent good sense.

2010Indeed, this is precisely the position taken by our Appellate Court, which recently explained that, in Shabazz , this court “looked beyond the traditional four-pronged test for newly discovered evidence and [was] guided by the general principle of whether an injustice was done.” (Emphasis added.) Joyce v. State’s Attorney, 84 Conn. App. 195, 203 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004). 10 Furthermore, such a test makes eminent good sense.

2010Indeed, this is precisely the position taken by our Appellate Court, which recently explained that, in Shabazz , this court "looked beyond the traditional four-pronged test for newly discovered evidence and [was] guided by the general principle of whether an injustice was done. " (Emphasis added.) Joyce v. State's Attorney, 84 Conn.App. 195, 203 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004). [10] Furthermore, such a test makes eminent good sense.

2010Indeed, this is precisely the position taken by our Appellate Court, which recently explained that, in Shabazz , this court “looked beyond the traditional four-pronged test for newly discovered evidence and [was] guided by the general principle of whether an injustice was done.” (Emphasis added.) Joyce v. State’s Attorney, 84 Conn. App. 195, 203 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004). 10 Furthermore, such a test makes eminent good sense.

2010Indeed, this is precisely the position taken by our Appellate Court, which recently explained that, in Shabazz , this court “looked beyond the traditional four-pronged test for newly discovered evidence and [was] guided by the general principle of whether an injustice was done.” (Emphasis added.) Joyce v. State’s Attorney, 84 Conn. App. 195, 203 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004). 10 Furthermore, such a test makes eminent good sense.

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2004We are cognizant that the cases cited by the petitioner, Taborsky v. State, supra, 142 Conn. 619 , Santiago v. State, supra, 47 Conn. Sup. 130 , and Reilly v. State, 32 Conn. Sup. 349 , 355 A.2d 324 (1976), as well as our Supreme Corut’s decisions in Shabazz v. State, 259 Conn. 811 , 792 A.2d 797 (2002), and Summerville v. Warden, 229 Conn. 397 , 641 A.2d 1356 (1994), have looked beyond the traditional four-pronged test for newly discovered evidence and have been guided by the general principle of whether an injustice was done.

1993In State v. Thurman, 10 Conn. App. 302 , 523 A.2d 891 , cert. denied, 204 Conn. 805 , 528 A.2d 1152 (1987), we were faced with a defendant who, like the defendant in this case, did not testify at trial and neither requested a “no adverse inference” instruction pursuant to General Statutes § 54-84 (b) nor objected to the court’s failure to provide one.

1988In State v. Thurman, 10 Conn. App. 302, 306-307 , 523 A.2d 891 , cert. denied, 204 Conn. 805 , 528 A.2d 1152 (1987), this court clarified the appropriate standards for deciding an Evans claim and articulated a four-pronged analysis.

1993In State v. Thurman, 10 Conn. App. 302 , 523 A.2d 891 , cert. denied, 204 Conn. 805 , 528 A.2d 1152 (1987), we were faced with a defendant who, like the defendant in this case, did not testify at trial and neither requested a “no adverse inference” instruction pursuant to General Statutes § 54-84 (b) nor objected to the court’s failure to provide one.

1988In State v. Thurman, 10 Conn. App. 302, 306-307 , 523 A.2d 891 , cert. denied, 204 Conn. 805 , 528 A.2d 1152 (1987), this court clarified the appropriate standards for deciding an Evans claim and articulated a four-pronged analysis.

1988In State v. Thurman, 10 Conn. App. 302, 306-307 , 523 A.2d 891 , cert. denied, 204 Conn. 805 , 528 A.2d 1152 (1987), this court clarified the appropriate standards for deciding an Evans claim and articulated a four-pronged analysis.

1988In State v. Thurman, 10 Conn. App. 302, 306-307 , 523 A.2d 891 , cert. denied, 204 Conn. 805 , 528 A.2d 1152 (1987), this court clarified the appropriate standards for deciding an Evans claim and articulated a four-pronged analysis.

1986“In State v. Whistnant, 179 Conn. 576, 588 , 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the

1986“In State v. Whistnant, 179 Conn. 576, 588 , 427 A.2d 414 (1980), this court articulated a four pronged test for determining when it is proper to charge a jury with respect to a lesser included offense. ‘A defendant is entitled to an instruction on a lesser offense if, and only if . . . (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the

2026Under the four-pronged test set forth in State v. Kelly, 256 Conn. 23 , 41–42, 770 A.2d 908 (2001), “[a] statement properly is admitted as a spontaneous utterance when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication State v. Franqui by the declarant.” (Internal quotation marks omitted.) State v. Tomlinson, supra, 585 .

2026Under the four-pronged test set forth in State v. Kelly, 256 Conn. 23 , 41–42, 770 A.2d 908 (2001), “[a] statement properly is admitted as a spontaneous utterance when (1) the declaration follows a startling occurrence, (2) the declaration refers to that occurrence, (3) the declarant observed the occurrence, and (4) the declaration is made under circumstances that negate the opportunity for deliberation and fabrication State v. Franqui by the declarant.” (Internal quotation marks omitted.) State v. Tomlinson, supra, 585 .

2018Indeed, [t]he only identifiable class of foreseeable victims that [it has] recognized ... is that of schoolchildren attending public schools during school hours ...." (Citation omitted; internal quotation marks omitted.) Martinez v. New Haven , supra, 328 Conn. at 8 -9 , 176 A.3d 531 . "[T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." (Internal quotation marks omitted.) Id. at

2018Indeed, [t]he only identifiable class of foreseeable victims that [it has] recognized ... is that of schoolchildren attending public schools during school hours ...." (Citation omitted; internal quotation marks omitted.) Martinez v. New Haven , supra, 328 Conn. at 8 -9 , 176 A.3d 531 . "[T]he proper standard for determining whether a harm was imminent is whether it was apparent to the municipal defendant that the dangerous condition was so likely to cause harm that the defendant had a clear and unequivocal duty to act immediately to prevent the harm." (Internal quotation marks omitted.) Id. at

2013Whistnant sets forth a four-pronged test, which entitles a defendant to an instruction on a lesser offense if: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser of

2013Whistnant sets forth a four-pronged test, which entitles a defendant to an instruction on a lesser offense if: “(1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser of

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009Co., supra, 262 Conn. 433 ], the Supreme Court articulated no further requirement that the conduct in question be unreasonable, egregious or outrageous, but rather analyzed the case pursuant to the four-pronged test already cited.” Murphy v. Lord Thompson Manor, Inc., supra, 555.

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2009However, this additional consideration appears to have been limited to capital cases. 47 Taborsky v. State, supra, 623; Andersen v. State, 43 Conn. 514 (1876); Joyce v. State’s Attorney, 84 Conn. App. 195 , 852 A.2d 841 , cert. denied, 271 Conn. 923 , 859 A.2d 578 (2004).

2009Indeed, new trials are granted “only with great caution ... in the most extraordinary circumstances.” (Internal quotation marks omitted.) United States v. Biaggi, 823 F. Sup. 1151, 1156 (S.D.N.Y. 1993), affd, 48 F.3d 1213 (2d Cir. 1994). 46 *107 While the four-pronged standard regarding newly discovered evidence is long established in our law, some precedents also have considered, under certain circumstances, “whether an injustice was done . . . .” Taborsky v. State, supra, 142 Conn. 623 ; Santiago v. State, 47 Conn. Sup. 130 , 779 A.2d 868 (1999), aff d, 64 Conn. App. 67 , 779 A.2d 775 , cert

2008In one such case, State v. Limon, supra, 280 Kan. at 275 , 122 P.3d 22 , the Kansas Supreme Court invalidated, on equal protection grounds, a criminal statute that resulted in punishment for unlawful voluntary sexual conduct between members of the opposite sex that was less harsh than the punishment for the same conduct between members of the same sex. [68] Id., at 276 , 122 P.3d 22 .

2008In one such case, State v. Limon, supra, 280 Kan. 275 , the Kansas Supreme Court invalidated, on equal protection grounds, a criminal statute that resulted in punishment for unlawful voluntary sexual conduct between members of the opposite sex that was less harsh than the punishment for the same conduct between members of the same sex. 68 Id., 276 .

2008Furthermore, the United *663 States Supreme Court has noted its approval of the four-pronged test announced by the District of Columbia Circuit Court of Appeals in Allison v. United States, 409 F.2d 445 (D.C.

2007We also note that the defendant briefed his state constitutional claim in some detail, asking this court to adopt a four-pronged rule that he claims naturally follows from the holding in State v. Geisler, 222 Conn. 672 , 610 A.2d 1225 (1992).

2007We also note that the defendant briefed his state constitutional claim in some detail, asking this court to adopt a four-pronged rule that he claims naturally follows from the holding in State v. Geisler, 222 Conn. 672 , 610 A.2d 1225 (1992).

2004We are cognizant that the cases cited by the petitioner, Taborsky v. State, supra, 142 Conn. 619 , Santiago v. State, supra, 47 Conn. Sup. 130 , and Reilly v. State, 32 Conn. Sup. 349 , 355 A.2d 324 (1976), as well as our Supreme Corut’s decisions in Shabazz v. State, 259 Conn. 811 , 792 A.2d 797 (2002), and Summerville v. Warden, 229 Conn. 397 , 641 A.2d 1356 (1994), have looked beyond the traditional four-pronged test for newly discovered evidence and have been guided by the general principle of whether an injustice was done.

2004We are cognizant that the cases cited by the petitioner, Taborsky v. State, supra, 142 Conn. 619 , Santiago v. State, supra, 47 Conn. Sup. 130 , and Reilly v. State, 32 Conn. Sup. 349 , 355 A.2d 324 (1976), as well as our Supreme Corut’s decisions in Shabazz v. State, 259 Conn. 811 , 792 A.2d 797 (2002), and Summerville v. Warden, 229 Conn. 397 , 641 A.2d 1356 (1994), have looked beyond the traditional four-pronged test for newly discovered evidence and have been guided by the general principle of whether an injustice was done.

2004We are cognizant that the cases cited by the petitioner, Taborsky v. State, supra, 142 Conn. 619 , Santiago v. State, supra, 47 Conn. Sup. 130 , and Reilly v. State, 32 Conn. Sup. 349 , 355 A.2d 324 (1976), as well as our Supreme Corut’s decisions in Shabazz v. State, 259 Conn. 811 , 792 A.2d 797 (2002), and Summerville v. Warden, 229 Conn. 397 , 641 A.2d 1356 (1994), have looked beyond the traditional four-pronged test for newly discovered evidence and have been guided by the general principle of whether an injustice was done.

2004We are cognizant that the cases cited by the petitioner, Taborsky v. State, supra, 142 Conn. 619 , Santiago v. State, supra, 47 Conn. Sup. 130 , and Reilly v. State, 32 Conn. Sup. 349 , 355 A.2d 324 (1976), as well as our Supreme Corut’s decisions in Shabazz v. State, 259 Conn. 811 , 792 A.2d 797 (2002), and Summerville v. Warden, 229 Conn. 397 , 641 A.2d 1356 (1994), have looked beyond the traditional four-pronged test for newly discovered evidence and have been guided by the general principle of whether an injustice was done.

2004We are cognizant that the cases cited by the petitioner, Taborsky v. State, supra, 142 Conn. 619 , Santiago v. State, supra, 47 Conn. Sup. 130 , and Reilly v. State, 32 Conn. Sup. 349 , 355 A.2d 324 (1976), as well as our Supreme Corut’s decisions in Shabazz v. State, 259 Conn. 811 , 792 A.2d 797 (2002), and Summerville v. Warden, 229 Conn. 397 , 641 A.2d 1356 (1994), have looked beyond the traditional four-pronged test for newly discovered evidence and have been guided by the general principle of whether an injustice was done.