State v. Edwin B.

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State v. Edwin B.

STATE OF CONNECTICUT v. EDWIN B.*
(AC 46412)
Bright, C. J., Westbrook and Prescott, Js.**

Syllabus

Convicted of manslaughter in the second degree and risk of injury to a child
in connection with the death of his seven week old daughter, the defendant
appealed. He claimed that the trial court’s failure to give specific unanimity
instructions as to both counts against him violated his right to jury unanimity
under the sixth amendment to the United States constitution. Held:

The trial court’s failure to give a specific unanimity instruction with respect
to the count charging the defendant with manslaughter violated his sixth
amendment right to jury unanimity, as that count was duplicitous because
the state alleged two, separate instances of conduct, shaking the victim
and delaying seeking medical intervention for the victim, that could have
constituted individual bases for the manslaughter conviction, and there was
a risk that the jurors were not unanimous with respect to which instance
of conduct the defendant engaged in when finding him guilty.

The trial court’s failure to give a specific unanimity instruction as to the
count against the defendant charging him with risk of injury to a child
violated his sixth amendment right to jury unanimity, as that count was
duplicitous because the state presented evidence of two, separate instances
of conduct, shaking the victim and delaying seeking medical attention for
the victim, that constituted individual violations of the statute (§ 53-21 (a)
(1)) governing risk of injury to a child, which the state concedes, and the
state’s argument that the defendant was not prejudiced by the duplicitous
nature of this count and reversal of his conviction was not required was
premised on an assumption rejected by this court with respect to the man-
slaughter charge, namely, that the jury unanimously found the defendant
guilty of manslaughter on the basis of shaking the victim.
Argued December 9, 2024—officially released April 1, 2025

Procedural History

Substitute information charging the defendant with
the crimes of manslaughter in the first degree and risk
* In accordance with our policy of protecting the privacy interests of the
victims of the crime of risk of injury to a child, we decline to use the
defendant’s full name or to identify the victim or others through whom the
victim’s identity may be ascertained. See General Statutes § 54-86e.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
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State v. Edwin B.

of injury to a child, brought to the Superior Court in
the judicial district of Hartford and tried to the jury
before D’Addabbo, J.; verdict and judgment of guilty
of the lesser included offense of manslaughter in the
second degree and of risk of injury to a child, from
which the defendant appealed to this court. Reversed;
new trial.
Hope J. Estrella, deputy assistant public defender,
for the appellant (defendant).
Timothy J. Sugrue, assistant state’s attorney, with
whom, on the brief, were Sharmese L. Walcott, state’s
attorney, and Emily Trudeau, senior assistant state’s
attorney, for the appellee (state).
Opinion

WESTBROOK, J. The defendant, Edwin B., appeals
from the judgment of conviction, rendered after a jury
trial, of manslaughter in the second degree in violation
of General Statutes § 53a-56 (a) (1)1 and risk of injury
to a child in violation of General Statutes § 53-21 (a)
(1).2 He claims that the court’s failure to give specific
unanimity instructions as to counts one and two vio-
lated his right to jury unanimity under the sixth amend-
ment to the United States constitution.3 We agree with
1
General Statutes § 53a-56 provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the second degree when: (1) He recklessly causes
the death of another person . . . .’’
2
General Statutes § 53-21 provides in relevant part: ‘‘(a) Any person who
(1) wilfully or unlawfully causes or permits any child under the age of
sixteen years to be placed in such a situation that the life or limb of such
child is endangered, the health of such child is likely to be injured or the
morals of such child are likely to be impaired, or does any act likely to
impair the health or morals of any such child . . . shall be guilty of . . .
a class C felony . . . .’’
3
The defendant additionally claims that the court improperly (1) denied
his request to instruct the jury that it should carefully consider the interroga-
tion tactics used by the police in considering the defendant’s statements to
the police, (2) failed to instruct the jury on all elements of risk of injury,
and (3) instructed the jury on the recklessness element of manslaughter in
the second degree. Because we reverse the judgment of the court on the
ground that the trial court’s failure to give a specific unanimity instruction
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State v. Edwin B.

the defendant that the court’s failure to give specific
unanimity instructions violated his right to jury unanim-
ity. Accordingly, we reverse the judgment of conviction
and remand for a new trial.
The following facts, which the jury reasonably could
have found, and procedural history are relevant to this
appeal. The victim and her twin sister were born to the
defendant and A in April, 2018. On May 24, 2018, around
3 a.m., the victim, who was diagnosed with colic, started
crying. The defendant attempted to feed her, but she
would not eat, so he took her into the bathroom to wash
her face. From the bedroom, A heard the defendant tell
the victim to ‘‘shut up,’’ ‘‘calm down,’’ and ‘‘quiet down,’’
and she heard the victim choking and coughing. She
also heard a noise that sounded like a ‘‘thud’’ or some-
thing, such as a shampoo bottle, hitting the sink. When
the victim stopped crying, the defendant returned to
the bedroom and handed the victim to A. A noticed
that the victim was sleepy and her breathing was differ-
ent. The defendant, who has an associate’s degree in
nursing, also noticed that the victim appeared injured.
A then placed the victim in her crib, and she and the
defendant went to sleep.
Around 6 a.m. on the same day, the victim’s twin
sister woke up for feeding, but the victim did not. A
tried to feed, change, and bathe the victim, but, although
the victim was moving and breathing, she did not fully
wake up. A called the pediatrician’s office, but no
as to counts one and two violated his right to jury unanimity, we need not
reach these additional claims. Nevertheless, because the issue could arise on
remand, we note that we agree with the state that the defendant’s proposed
instruction on interrogation tactics was argumentative and not a correct
statement of the law. To the extent the defendant seeks such an instruction
at a retrial, our Supreme Court in State v. Griffin, 339 Conn. 631, 693 n.29,
262 A.3d 44 (2021), cert. denied, U.S. , 142 S. Ct. 873, 211 L. Ed. 2d
575 (2022), set forth, with apparent approval, the trial court’s instruction
on how the jury should evaluate ‘‘the likelihood that particular interrogation
tactics render a confession unreliable.’’ Id., 693.
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State v. Edwin B.

appointments were available until the afternoon. A and
the defendant then decided to take the victim to the
hospital.
The defendant and A arrived at the hospital with the
victim around 10:30 a.m. After the emergency depart-
ment personnel conducted a CAT scan and X-rays of
the victim, Rebecca Moles, a child abuse pediatrician,
informed the defendant that the victim had broken ribs,
a broken collarbone, bleeding in and around her brain,
and an injury to her brain. The victim also had bruising
on both of her arms and her abdomen. Moles deter-
mined that the victim’s injuries were consistent with
squeezing of the ribcage and a forceful back and forth
motion. She also determined that the injuries could not
have resulted from a fall of four feet or less or from
the victim’s own activity. Moles therefore concluded
that the victim’s injuries indicated child abuse.
The Hartford Police Department dispatched officers
to the hospital to investigate the circumstances of the
victim’s injuries. An officer spoke with the defendant,
who did not offer any explanation for the victim’s injur-
ies. At the same time, another officer spoke with A,
who stated that she did not cause the victim’s injuries
and agreed to go to the police station to give a statement.
At the station, A told the officers that she brought the
victim to the hospital because the victim was not eating
or responding. She denied harming the victim.
The defendant also agreed to go to the station, where
officers questioned him for approximately eight hours.
Detective Ivette Berrios and Detective Tanya Ortiz, who
both speak Spanish, assisted Detective James Newell
in interrogating the defendant. Before the interrogation
began, Berrios provided the defendant with Miranda
warnings,4 and the defendant signed a written waiver
of his rights.
4
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
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State v. Edwin B.

Throughout the interrogation, which was recorded,
the defendant’s story was inconsistent. He initially told
the officers that he did not harm the victim, but he did
not tell them that A had harmed her. After the officers
pressed the defendant, however, he said that he saw A
shake the victim. The officers continued interrogating
the defendant, and Ortiz, trying to prompt the defendant
to confess to harming the victim, told him that she
believed the victim’s injuries were an accident. Ortiz
also told the defendant that he and A would both be
charged if he did not tell the officers what happened.
The defendant thereafter told the officers that he had
dropped the victim, and he agreed to give a written
statement.
The defendant’s written statement provides in rele-
vant part: ‘‘On May 24, 2018, at approximately 3 a.m.
. . . [the victim] woke up. . . . [A] picked her up and
gave her to me. I held her and tried to [console] her. I
was standing when I had [the victim] in my arms, by
my shoulder. When I tried to switch [the victim] to my
other shoulder, [she slid] out from my arms. [The victim]
hit the crib rail with her abdomen. Before she hit the
floor, the back of her head hit the bed frame . . . .
[The victim] [stopped] crying when she hit the floor. I
became nervous, picked her up and took her to the
bathroom. With my hands, I wet her face with water.
[The victim] took a deep breath, her eyes [were] half
open, and looked [as] if she was druggy. [Her] body
was [limp] but she had movement [in] her legs and
arms. After I dried her face with [a] towel, I took her
to her crib. I spoke to her, but she did not react. I woke
up [A] and told her that [the victim] was not okay and
needed to go to the hospital. [A] told me to wait for
the pediatrician. . . . I said to [A] that I was not going
to wait. . . . We arrived at the [hospital] at approxi-
mately [6 a.m.] . . . . When I was being interviewed
by the detectives, I was scared. I did not say to them
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State v. Edwin B.

that [the victim] fell from my arms. I blamed [A] because
I was scared and insecure. I [had] never seen [A] hitting
or mistreating [the victim] . . . .’’5
On May 25, 2018, the state obtained an arrest warrant
and filed an information charging the defendant with
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (1),6 risk of injury to a child in violation
of § 53-21 (a) (1), and intentional cruelty to persons in
violation of General Statutes § 53-20 (a) (1).7 A few days
later, on May 28, 2018, the victim died in the hospital.
The medical examiner determined that the cause of
death was ‘‘[a]cute and [c]hronic [b]lunt [i]njuries with
[s]ubdural and [s]ubarachnoid [h]emorrhages and [r]ib
[f]ractures.’’ She certified the manner of the victim’s
death as homicide. On June 8, 2018, the state filed a
substitute information charging the defendant with
manslaughter in the first degree in violation of General
Statutes § 53a-55 (a) (3),8 assault in the first degree in
violation of § 53a-59 (a) (1), and risk of injury to a child
in violation of § 53-21 (a) (1).
On November 8, 2019, A signed an ‘‘Agreement Con-
cerning Prosecution’’ (cooperation agreement) in which
5
The defendant provided this statement to the police in Spanish, which
Berrios typed in Spanish and subsequently translated into English.
6
General Statutes § 53a-59 provides in relevant part: ‘‘(a) A person is
guilty of assault in the first degree when: (1) With intent to cause serious
physical injury to another person, he causes such injury to such person or
to a third person by means of a deadly weapon or a dangerous instru-
ment . . . .’’
7
General Statutes § 53-20 provides in relevant part: ‘‘(a) (1) Any person
who intentionally tortures, torments or cruelly or unlawfully punishes
another person or intentionally deprives another person of necessary food,
clothing, shelter or proper physical care shall be guilty of a class D fel-
ony. . . .’’
8
General Statutes § 53a-55 provides in relevant part: ‘‘(a) A person is
guilty of manslaughter in the first degree when . . . (3) under circumstances
evincing an extreme indifference to human life, he recklessly engages in
conduct which creates a grave risk of death to another person, and thereby
causes the death of another person. . . .’’
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State v. Edwin B.

she agreed to plead guilty to charges of risk of injury
to a child in violation of § 53-21 (a) (1) and criminally
negligent homicide in violation of General Statutes
§ 53a-589 for the death of the victim. The cooperation
agreement further provided that A would ‘‘truthfully
testify at any trial or other court proceeding with
respect to any matters about which . . . the investigat-
ing police agency may request her testimony including
at the trial of [the defendant].’’
On September 12, 2022, the state filed another substi-
tute information against the defendant, charging him
with two counts. Count one of the information charged
the defendant with manslaughter in the first degree
in violation of § 53a-55 (a) (3), alleging that, ‘‘under
circumstances evincing an extreme indifference to
human life, [the defendant] recklessly engaged in con-
duct which created a grave risk of death to another
person, and thereby caused the death of another person,
to wit: [the victim], a seven week old infant.’’ Count
two of the information charged the defendant with risk
of injury to a child in violation of § 53-21 (a) (1), alleging
that ‘‘the defendant wilfully and unlawfully caused a
child under the age of sixteen years to be placed in
such a situation that the life and limb of such child was
endangered, the health of such child was likely to be
injured, and committed an act likely to impair the health
of such child, to wit: [the victim], a seven week old
infant.’’
The case was tried to a jury. Following the presenta-
tion of evidence and closing arguments of counsel, the
court, D’Addabbo, J., charged the jury on, inter alia, the
elements of the charged offenses of manslaughter in
the first degree and risk of injury to a child, as well
General Statutes § 53a-58 provides in relevant part: ‘‘(a) A person is
9

guilty of criminally negligent homicide when, with criminal negligence, he
causes the death of another person, except where the defendant caused
such death by a motor vehicle. . . .’’
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State v. Edwin B.

as the lesser included offenses of manslaughter in the
second degree and criminally negligent homicide. That
same day, the jury returned verdicts of not guilty on
the charge of manslaughter in the first degree and guilty
on the lesser included offense of manslaughter in the
second degree and on the charge of risk of injury to a
child. The court sentenced the defendant to a total
effective sentence of twenty years of incarceration, exe-
cution suspended after fifteen years, followed by five
years of probation. This appeal followed. Additional
facts will be set forth as necessary.
I
We first address the defendant’s claim that the court’s
failure to give a specific unanimity instruction as to
count one violated his sixth amendment right to jury
unanimity.10 He argues that count one was duplicitous
10
The defendant acknowledges that he did not preserve this claim, and
he seeks review pursuant to the bypass rule set forth in 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). ‘‘Pursuant to 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
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. . . . The first two steps in the Golding analysis address the review-
ability of the claim, [whereas] the last two steps involve the merits of the
claim.’’ (Emphasis in original; internal quotation marks omitted.) State v.
Daniels, 228 Conn. App. 321, 342, 324 A.3d 820, cert. denied, 350 Conn. 926,
326 A.3d 248 (2024). The first two prongs of Golding are satisfied because the
record is adequate for review and the defendant’s claim is of constitutional
magnitude. See State v. Marcelino S., 118 Conn. App. 589, 594, 984 A.2d
1148 (2009) (claim that duplicitous charge violated defendant’s right to jury
unanimity satisfied first two prongs of Golding), cert. denied, 295 Conn.
904, 988 A.2d 879 (2010). For the reasons set forth hereinafter, we also
conclude that the defendant is entitled to prevail under the third and fourth
prongs of Golding.
Additionally, the defendant acknowledges that the relevant rules govern-
ing claims of lack of unanimity were articulated in State v. Douglas C., 345
Conn. 421, 435, 285 A.3d 1067 (2022), and State v. Joseph V., 345 Conn. 516,
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State v. Edwin B.

because the state alleged two separate instances of
conduct—shaking the victim and a delay in seeking
medical intervention—that could have constituted indi-
vidual bases for the manslaughter conviction. He fur-
ther argues that the duplicity was not cured by a specific
unanimity instruction and that he was prejudiced
because there is a risk that the jurors were not unani-
mous with respect to which instance of conduct he
engaged in when finding him guilty of manslaughter in
the second degree.11 We agree with the defendant.
529–31, 285 A.3d 1018 (2022), shortly after the defendant was sentenced.
He argues that the rules announced in those cases apply retroactively as
new constitutional rules announced during the pendency of direct review.
Because the Supreme Court of the United States has stated that ‘‘failure to
apply a newly declared constitutional rule to criminal cases pending on
direct review violates basic norms of constitutional adjudication’’; Griffith
v. Kentucky, 479 U.S. 314, 322, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987); we
agree with the defendant that Douglas C. and Joseph V. apply retroactively
to the present matter. See also State v. Velasquez-Mattos, 347 Conn. 817,
849, 300 A.3d 583 (2023) (applying Douglas C. and Joseph V. retroactively
because ‘‘all defendants whose cases [are] still pending on direct appeal at
the time of [a law changing] decision should be entitled to invoke the new
rule’’ (internal quotation marks omitted)).
11
We note that the defendant did not request that the trial court give the
jury a specific unanimity instruction. Further, the defendant did not object
to the proposed charge or take an exception after the charge was given.
The state has not argued on appeal that the defendant’s failure to request
a specific unanimity instruction constitutes an implicit waiver of this claim
under State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), despite the fact
that our Supreme Court has held that ‘‘[r]eview of the defendant’s duplicity
claim under Golding, and particularly whether the failure to provide a spe-
cific unanimity instruction requires reversal, turns on whether defense coun-
sel’s failure to object to the jury charge means that the defendant implicitly
waived his right to an unanimity instruction pursuant to Kitchens.’’ (Footnote
omitted.) State v. Velasquez-Mattos, 347 Conn. 817, 846, 300 A.3d 583 (2023).
The state’s decision not to argue that the defendant waived his right
to a unanimity instruction is understandable. ‘‘[W]aiver is an intentional
relinquishment or abandonment of a known right or privilege. . . . In order
to waive a claim of law it is not necessary . . . that a party be certain of
the correctness of the claim and its legal efficacy. It is enough if he knows
of the existence of the claim and of its reasonably possible efficacy.’’ (Internal
quotation marks omitted.) State v. Kitchens, supra, 299 Conn. 469. ‘‘Among
the rights that may be waived by the action of counsel in a criminal trial
is the right of a defendant to correct jury instructions, even when fundamen-
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State v. Edwin B.

The following additional facts are relevant to this
claim. At trial, the state presented evidence that the
defendant caused the victim’s death by shaking her. It
also presented evidence that the victim’s injuries were
worsened by the defendant’s failure to seek timely medi-
cal attention. For example, Moles testified as follows:
‘‘So, with brain injury, there is what we call primary
brain injury and secondary brain injury. So, primary
brain injury is the actual trauma to the brain from the
event—you know, from the shaking or the movement
of the brain. And then, the brain doesn’t like to get
injured. So when it’s injured, it swells . . . . And then,
tal rights are at issue.’’ State v. Velasquez-Mattos, supra, 347 Conn. 847.
‘‘[B]ecause the waiver of a constitutional challenge to jury instructions
is implied rather than express, it arises from an inference that the defendant
knowingly and voluntarily relinquished the right in question. . . . Neverthe-
less, when the law governing a defendant’s constitutional claim has changed
after the defendant’s trial, counsel acting under binding precedent in effect
at the time of the trial cannot make a knowing and intelligent waiver of
rights affected by the later decision changing the law.’’ (Citations omitted;
internal quotation marks omitted.) Id., 848–49.
In Velasquez-Mattos, the defendant had already been sentenced when our
Supreme Court decided Douglas C. and Joseph V., but the matter was still
pending direct review. See id., 847–48. Our Supreme Court explained that
‘‘[it] recognized for the first time [in Douglas C.] that a duplicitous informa-
tion may yield two distinct and separate kinds of unanimity claims, and [it]
adopted the federal test for claims of unanimity as to instances of conduct.’’
Id., 850. Additionally, ‘‘[it] concluded for the first time [in Joseph V.] that
the sexual assault statute . . . with which the defendant . . . was charged,
does not criminalize a continuing course of conduct.’’ Id., 851. The court
therefore held that, ‘‘in light of the recent and significant change in our case
law that occurred after the completion of the defendant’s trial . . . defense
counsel did not make a knowing and intelligent waiver of the right to
unanimity as to instances of conduct pursuant to Kitchens’’ by failing to
request a specific unanimity instruction. Id.
The present case is similar to Velasquez-Mattos in that Douglas C. and
Joseph V. were decided while this case was pending direct review. Although
neither Douglas C. nor Joseph V. expressly changed the case law regarding
manslaughter, we are persuaded that the new test articulated for claims of
lack of unanimity as to instances of conduct is a sufficiently significant
change in our case law such that the defendant’s failure to request a specific
unanimity instruction did not constitute a knowing and intelligent waiver
of the right to unanimity as to instances of conduct under Kitchens.
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State v. Edwin B.

there can be additional injury to the brain because it
swelled up and it gets squished. . . . And then . . .
the brain also can have seizures, where the electrical
impulses fire. And that can also cause injury to the
brain. And all of those things can decrease the ability
of the baby to breathe effectively, which then has even
less oxygen to the brain. So, it’s kind of a cycle. So, when
a baby comes into the, someplace like the intensive
care unit, part of, a big thing that the doctors are trying
to do is break that cycle—so, stop that cycling; give
medicines to try to stop the brain from getting continu-
ally injured . . . as a result of trying to stop those sec-
ondary injuries. So, the symptoms that a family or that
a parent will see often are those initial symptoms. And
then, they may see worsening of those symptoms or
different symptoms as the secondary brain injury
starts.’’
The defendant’s theory of defense was that A shook
the victim causing her primary injuries and was respon-
sible for not seeking prompt medical treatment. The
defendant testified that he saw A shake the victim and,
when he attempted to intervene and take the victim
from A, she would not release the victim until the defen-
dant promised that he would not leave A. He further
testified that, although he wanted to seek immediate
medical attention for the victim, he did not do so
because he did not want to further upset A. Because
there were no other witnesses to what happened to the
victim, the jury was left to decide whether they believed
the defendant or A as to who shook the baby and who
was responsible for the delay in seeking medical treat-
ment.
During closing arguments, the prosecutor stated:
‘‘[W]ith manslaughter in the first degree, if you credit
[A’s] testimony—if you find that it was [the defendant]
that was holding that baby in the bathroom at the time
when the hysterical crying came to an abrupt end—then
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State v. Edwin B.

you can find that this defendant engaged in conduct
that created a grave risk of death to another.’’ She also
stated: ‘‘You know the risk. He engaged in the conduct.
And he did nothing. It wasn’t intentional, but it was
reckless, and it demonstrated an extreme indifference
to human life. When we look at the time frame in this
case . . . 3 a.m., incident happens. Baby crying [and
then] no crying. Four a.m., no medical treatment [and]
no intervention. Five a.m., nope. . . . Ten-thirty [a.m.],
that baby gets to the hospital. Ten-thirty [a.m.], that
baby gets intervention and medical treatment. That’s
seven and [one-half] hours. Extreme indifference to
human life. And it caused [the victim’s] death—that,
we know for certain.’’ (Emphasis added.) Furthermore,
the prosecutor argued: ‘‘[The defendant’s] nursing
degree failed. I’ve seen videos of four year olds call the
police when their parents are in distress. . . . Police
rush to the house. There’s medical intervention. He has
a nursing degree. He testified to that. Yep. He failed.’’
Finally, the prosecutor reiterated to the jury that ‘‘[the
victim] deserved someone to step up and say—as that
baby, [the victim], sat there hanging on for life—some-
one to say, ‘Hey, I shook her. She got shaken. It was
an accident. Can you fix it?’ Dr. Moles talked about,
it’s about relieving pressure and swelling. And there’s
a few things that they do. That didn’t happen.’’
With respect to count one, the court charged the jury
with the elements of manslaughter in the first degree
and the elements of the lesser included offense of man-
slaughter in the second degree. The court did not mar-
shal any of the evidence to a specific count or specific
elements of a crime. The jury thereafter found the defen-
dant not guilty of the charged offense of manslaughter
in the first degree and guilty of the lesser included
offense of manslaughter in the second degree.
We now turn to the defendant’s claim that the court’s
failure to provide a specific unanimity instruction as to
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State v. Edwin B.

count one violated his right to jury unanimity. ‘‘The
defendant’s right to jury unanimity under the sixth
amendment to the United States constitution ensures
that a jury cannot convict unless it unanimously finds
that the [g]overnment has proved each element of the
charged crime. . . . [Our Supreme Court has] recog-
nized that a duplicitous information may raise two dis-
tinct and separate kinds of unanimity claims: (1) una-
nimity as to a crime’s elements, which occurs when a
defendant is charged in a single count with having vio-
lated multiple statutory provisions, subsections, or
clauses, and thus the court must determine whether the
statutory provisions, subsections, or clauses constitute
separate elements of the statute, thereby requiring jury
unanimity, or alternative means of committing a single
element, which do not require jury unanimity; and (2)
unanimity as to instances of conduct, also known as a
multiple acts or multiple offense claim, which occurs
when a defendant is charged in a single count with
having violated a single statutory provision, subsection,
or clause on multiple, separate occasions. . . . [D]if-
ferent tests apply to a claim of unanimity as to elements
and a claim of unanimity as to instances of conduct.’’
(Citations omitted; internal quotation marks omitted.)
State v. Joseph V., 345 Conn. 516, 529–31, 285 A.3d 1018
(2022). ‘‘[B]ecause this claim is premised on an alleged
infringement of the defendant’s constitutional rights,
our review is plenary.’’ State v. Douglas C., 345 Conn.
421, 435, 285 A.3d 1067 (2022).
In the present case, the defendant argues that count
one was duplicitous because the state charged two,
separate instances of conduct as the basis for a single
violation of § 53a-56 (a) (1). Additionally, he argues that
the court did not provide a specific unanimity instruc-
tion requiring the jury to agree on which act formed
the basis for the conviction, creating a risk that the
verdict was not unanimous as to a single course of
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conduct. Our Supreme Court, in Douglas C., adopted
the following three-pronged test to determine whether
a duplicitous charge violated a defendant’s right to jury
unanimity as to instances of conduct: ‘‘(1) Considering
the allegations in the information and the evidence
admitted at trial, does a single count charge the defen-
dant with violating a single statute in multiple, separate
instances? (2) If so, then does each instance of conduct
establish a separate violation of the statute? If the stat-
ute contemplates criminalizing a continuing course of
conduct, then each instance of conduct is not a separate
violation of the statute but a single, continuing violation.
To determine whether the statute contemplates crimi-
nalizing a continuing course of conduct, we employ our
well established principles of statutory interpretation.
Only if each instance of conduct constitutes a separate
violation of the statute is a count duplicitous. And (3)
if duplicitous, was the duplicity cured by a bill of partic-
ulars or a specific unanimity instruction? If yes, then
there is no unanimity issue. If not, then a duplicitous
count violates a defendant’s right to jury unanimity but
reversal of the defendant’s conviction is required only
if the defendant establishes prejudice.’’12 Id., 448.

Under the first prong of Douglas C., the defendant
argues that count one charged him with violating § 53a-
55 (a) (3) in two separate instances because the state
presented evidence that he caused the victim’s death
by (1) shaking her and (2) failing to seek timely medical
attention for her. We agree.
12
The defendant filed no request for a bill of particulars. ‘‘The purpose
of a bill of particulars is to inform the defendant of the charges against him
with sufficient precision to enable him to prepare his defense and avoid
prejudicial surprise. . . . A bill of particulars limits the state to proving
that the defendant has committed the offense in substantially the manner
described.’’ (Internal quotation marks omitted.) State v. Marcelino S., 118
Conn. App. 589, 593–94, 984 A.2d 1148 (2009), cert. denied, 295 Conn. 904,
988 A.2d 879 (2010).
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A person commits manslaughter in the first degree
pursuant to § 53a-55 (a) (3) when, ‘‘under circumstances
evincing an extreme indifference to human life, he reck-
lessly engages in conduct which creates a grave risk of
death to another person, and thereby causes the death
of another person.’’ The information, which alleges that,
‘‘on or about May 25, 2018, at approximately 3 a.m. . . .
the defendant did commit the crime of manslaughter,’’
does not specify which conduct violated § 53a-55 (a)
(3). Although the reference to the approximate time of
the crime occurring at 3 a.m. suggests that the focus
of the charge was the shaking of victim, at trial, the
jury heard Moles testify that the victim suffered a pri-
mary brain injury from being shaken and secondary
injuries that continued to damage her brain until she
received medical treatment. Additionally, the prosecu-
tor, during her closing argument, emphasized the fact
that the defendant delayed seeking medical attention
for the victim for seven and one-half hours and that,
by doing so, he caused the victim’s death. Thus, the
jury heard evidence and argument that the defendant’s
conduct of shaking the victim and/or failing to seek
timely medical attention for her evinced recklessness
and caused the victim’s death.
In Douglas C., the state presented evidence that the
defendant touched the victim in a sexual and indecent
manner multiple times in a single evening and that such
conduct constituted a single violation of the risk of
injury statute. State v. Douglas C., supra, 345 Conn.
471. Our Supreme Court determined that ‘‘the jury rea-
sonably could have interpreted the evidence admitted
in only one of two ways. Although the length of time
is unclear, the testimony of [the victim] shows that this
touching occurred during the course of a single evening.
From this evidence, the jury reasonably could have
found that these acts constituted a single criminal epi-
sode of relatively brief, temporal duration and thus did
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State v. Edwin B.

not constitute multiple, separate incidents of conduct
under the first prong of the applicable test. Alterna-
tively, from this evidence . . . the jury [reasonably
could have] found under prong one of the applicable
test that there was enough time between each act for
the acts to constitute multiple, separate incidents of
conduct . . . .’’ Id., 471–72.
Similarly, in the present matter, although the shaking
and the initial decision not to seek medical attention
occurred in close temporal proximity, the jury had inde-
pendent bases to find the defendant guilty of man-
slaughter in the second degree. Jurors reasonably could
have found that the defendant shook the victim causing
the primary injuries that led to her death. Alternatively,
one or more of the jurors reasonably could have con-
cluded that the state failed to prove beyond a reasonable
doubt that the defendant shook the baby but that the
defendant’s failure to seek prompt medical attention
for her evinced recklessness and ultimately proximately
caused the victim’s death. Moreover, the act of shaking
the victim was brief, but the decision not to seek medi-
cal attention continued for seven and one-half hours.
From the evidence presented, the jury reasonably could
have found that the shaking and the delay in seeking
medical attention constituted multiple, separate inci-
dents of conduct, rather than a single criminal episode.
The state maintains that the evidence that the defen-
dant delayed seeking medical attention for the victim
was not offered as the reckless conduct supporting the
manslaughter charge or the lesser included offenses on
which the jury was charged. Rather, the state argues
that evidence of the delay was offered only to prove
that he acted with extreme indifference to human life,
which is a separate element of the offense of manslaugh-
ter in the first degree. We are not persuaded.
The prosecutor, during her closing argument to the
jury, stated that the defendant’s decision not to seek
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State v. Edwin B.

medical attention after shaking the victim was both
reckless and demonstrated extreme indifference to
human life. In addition, her statement, immediately
after detailing the defendant’s delay in seeking medical
treatment, that ‘‘it caused [the victim’s] death—that, we
know for certain’’ reasonably could have been under-
stood by the jury as arguing that the failure to seek
medical treatment was the cause of the victim’s death.
Such an understanding by jurors would have been par-
ticularly reasonable given Moles’ testimony about sec-
ondary injuries and A’s testimony that she pleaded
guilty to negligent homicide for her failure to seek
prompt medical treatment for the victim. Thus, as the
case was presented to the jury, count one was premised
on evidence of two, separate incidents of conduct, lead-
ing to the possibility that some jurors may have con-
cluded that the defendant was guilty of manslaughter
because he shook the victim, while others may have
found him guilty because he did not seek prompt medi-
cal treatment for the victim.

Additionally, the second prong of Douglas C. is satis-
fied because the state does not argue that it charged
count one under a theory that shaking the victim and
delaying seeking medical attention constituted a contin-
uing course of conduct. Rather, the state maintains
that ‘‘count one was premised on a single instance of
allegedly reckless homicidal conduct—shaking the vic-
tim violently enough to cause blood vessels in her brain
to tear, hemorrhage, and result in her death.’’ Because
the state presented evidence of two, separate instances
of conduct but did not present a continuing course of
conduct theory, the jurors reasonably could have found
the defendant guilty under count one for engaging in
either instance of conduct, and their decision as to each
may not have been unanimous. Thus, count one was
duplicitous.
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The third prong of Douglas C. is satisfied because
the court did not give a specific unanimity instruction
and, therefore, the duplicity of count one violated the
defendant’s right to jury unanimity. Still, ‘‘reversal of the
defendant’s conviction is required only if the defendant
establishes prejudice, namely, that the duplicity created
the genuine possibility that the conviction resulted from
different jurors concluding that the defendant commit-
ted different acts.’’ State v. Douglas C., supra, 345 Conn.
447. The defendant argues that the duplicity of count
one ‘‘severely prejudiced [him] because there was a
substantial risk of a nonunanimous verdict based on
the evidence in the case and the arguments advanced
by the state . . . [upon which] separate jurors may
have found that the defendant engaged in entirely sepa-
rate instances of conduct.’’ (Citation omitted.) There-
fore, the defendant argues, reversal of his conviction
under count one is required. We agree.
As we have discussed, the state presented evidence
that the victim’s brain injuries, which ultimately
resulted in her death, were caused primarily by the
shaking and secondarily by the delay in medical inter-
vention. The state argued to the jury that both instances
of conduct were reckless. On the basis of the evidence
and how it was presented, jurors reasonably could have
found the defendant guilty of manslaughter in the sec-
ond degree because he shook the baby, delayed seeking
medical attention for her, or both. Consequently, there
is a real possibility that the jury was not unanimous
in finding the defendant guilty of a single instance of
conduct and, therefore, the defendant has established
that he was prejudiced by the duplicity of count one.
Accordingly, reversal of the defendant’s conviction
under count one is required.
II
We next address the defendant’s claim that the court’s
failure to give a specific unanimity instruction as to
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count two violated his sixth amendment right to jury
unanimity. The defendant argues that count two is
duplicitous because the state presented evidence of two
separate instances of conduct—shaking the victim and
delaying seeking medical attention—that constitute
individual violations of § 53-21 (a) (1).13 We agree.
The state concedes that count two satisfies all three
prongs of Douglas C. because the jury reasonably
‘‘could have found the defendant guilty of violating § 53-
21 (a) (1) based on either instance of conduct, or both,’’
and it further concedes that the duplicity was not cured
by a specific unanimity instruction. The state argues,
however, that the defendant was not prejudiced by the
duplicitous nature of count two and, therefore, reversal
of his risk of injury conviction is not required. Specifi-
cally, the state argues that the defendant was not preju-
diced because ‘‘in finding the defendant guilty under
count one of manslaughter in the second degree, the
jury necessarily and unanimously found that he engaged
in the conduct of shaking the victim and thereby caused
her death . . . [which was] presented to the jury as
one of two independent bases to support a finding of
guilty under the situation prong of the risk of injury
statute . . . .’’
At oral argument before this court, counsel for the
state conceded that its lack of prejudice argument
hinges on the validity of the defendant’s manslaughter
conviction such that, if count one is reversed, count
two must be reversed as well. Indeed, the state’s argu-
ment that the defendant was not prejudiced by the
duplicity of count two is premised on an assumption
13
The defendant also argues that count two is duplicitous as to its elements
because the state charged him, pursuant to § 53-21 (a) (1), with ‘‘plac[ing]
[a child] in such a situation that the life or limb of such child was endangered’’
as well as ‘‘committ[ing] an act likely to impair the health [or morals] of
such child . . . .’’ In light of our conclusion in part II of this opinion, we
do not reach this argument.
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that the jury unanimously found the defendant guilty
of count one on the basis of shaking the victim. In part
I of this opinion, however, we concluded that reversal
of count one is required because there is a real possibil-
ity that the jury was not unanimous in finding the defen-
dant guilty of manslaughter in the second degree for
shaking the victim. Therefore, the state’s lack of preju-
dice argument fails, and we conclude that reversal of
the defendant’s conviction under count two is required.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.