dissenting. The defendant’s state and federal constitutional rights to due process and a fair trial were violated when the trial court improperly instructed the jury that it could find the defendant guilty of capital felony and robbery, either as a principal or as an accessory, after the jury had already commenced its deliberations, and when accessorial liability was neither alleged in the substitute information on those counts nor supported by the evidence. The egre*362giousness of the failure to furnish the defendant with notice that he was being charged with accessorial liability is underscored by the jury’s vote in this case. Upon the trial court’s polling of the jury,1 the foreperson disclosed that ten members of the jury had voted to find the defendant guilty of capital felony and robbery as a principal, and two members had voted to find him guiliy as an accessory.2 In other words, two jurors voted to acquit the defendant of the charges of capital felony and robbery as a principal.
In State v. Steve, 208 Conn. 38, 544 A.2d 1179 (1988), the majority of the court reversed a conviction because of the state’s failure to put the defendant on notice that he was being prosecuted as an accessory as well as a principal. In Steve, the court held as follows: “We conclude that . . . the defendant was prejudiced in his defense as a result of a substantial variance between the allegations in the bill of particulars and the court’s instructions concerning accessorial liability. It is clear that the presentation of his defense relied upon the state’s claim [in its bill of particulars] that the defendant was in fact the principal of each crime. . . . It is significant that the state presented no evidence in its casein-chief suggesting that the defendant had acted as an accomplice. . . . The state did not seek to amend its information to allege that the defendant had acted as an accomplice . . . .We do not regard the state’s notification to the defendant prior to [closing] argument of its intention to request a charge on accessorial liability as equivalent to an amendment offered seasonably before the close of evidence. . . . Accordingly, we need not decide whether such an amendment would have *363been proper in these circumstances. We conclude that the court’s instructions concerning accessorial liability were not in substantial conformity with either the allegations in the bill of particulars or the evidence in the state’s case-in-chief, and, therefore, hold that these instructions were erroneous.” (Citations omitted; internal quotation marks omitted.) Id., 45-46.
In an attempt to distinguish this case from Sieve, the majority claims that the defendant was put on notice of accessorial liability, based upon the conspiracy counts from the “substitute information and bill of particulars” (substitute information) that the majority has applied completely out of context — that is, the majority points to clauses that allege that the defendant “agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to intentionally cause the death of [the victims] . . . .’’First, this is not language of accessorial liability, but, rather, it is that of a conspiracy. This is made absolutely clear by the fact that the substitute information does not refer to the accessorial liability statute, General Statutes § 53a-8,3 but, instead, it refers to the conspiracy statute, General Statutes § 53a-48.4 For instance, the first count of the substitute information provides in pertinent part: “State’s Attorney . . . accuses -Jesus Alberto Correa ... of the crime of conspiracy to commit capital felony, in violation of Connecticut General Statutes Sections 53a-48 [conspiracy] *364and 53a-54b (8) [capital felony], and charges that at an unknown place, on or around November 15, 1990, Correa agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to intentionally cause the death of two persons . . . and that Correa committed an overt act in furtherance of said conspiracy, that is, he obtained a handgun and went to Adelaide Street, Hartford, CT, on November 15, 1990, to commit said murders.”5 This did not furnish the defendant with notice that he was being prosecuted as an accessory when he was only charged as a principal.6
Furthermore, the substitute information was filed in response to the defendant’s motion for a bill of particulars,7 which sought, inter alia, “[t]he specific crime *365charged including the statutory number, subsection and language which the defendant is alleged to have violated [and] [t]he specific acts, language or behavior of the defendant alleged to constitute the crime charged.” Based upon the state’s response to the motion, which culminated in the filing of the substitute information, it is clear that the state did not charge him with accessorial liability in the capital felony, murder or robbery counts.
Finally, even the assistant state’s attorney conceded at trial that the defendant was charged as a principal when he stated to the trial court that if the defense were to suggest, by way of evidence or argument to the jury, that the defendant was an accessory, then the state would seek an accessory instruction “even though he was charged as a principal in the information.”8
The majority also attempts to distinguish Steve on the basis that in this case there was evidence on which the jury could have found that the defendant was an accessory. This is simply incorrect. In this case, there was no evidence, as the state conceded at trial, of accessorial liability on the part of the defendant.9 The state *366did not offer evidence that any person other than the defendant played an active role in the shooting. The only evidence introduced pointed to the defendant as principal. Indeed, even if we assume that there was evidence of accessorial liability, this case is more compelling than Steve for several reasons.
In Steve, the prosecution requested an accessorial charge prior to closing arguments. In this case, only after the jury sent a note to the trial court, raising the question of accessorial liability, did the court instruct the jury on this issue. Notwithstanding the majority’s intimation to the contrary, the record clearly indicates that the instruction on accessorial liability was given after the jury began its deliberations, and the state concedes this in its brief The trial court completed its charge to the jury at 12:48 p.m. and suggested that the jury go to lunch. Specifically, the trial court stated that: “Your first duty when you go into the jury room will be to select a foreperson from among you and then, after all of the exhibits are delivered to you, you may start your deliberations. . . . I’m going to excuse you now. My suggestion to you is, in view of the lateness — if you wish to select your foreman before you go to lunch, *367you can do that. If not, you’ve certainly been sitting here long enough that you deserve to go to lunch but when you come back, you will go to the deliberation room. . . . You may not discuss this case unless all of you are together — all twelve of you are together in the deliberation room.”
Because the judge had a commitment and would not return until between 3 and 3:30 p.m., and after having been instructed in the aforementioned manner, it is clear that the jury began deliberating before 3:57 p.m., the time at which they were brought back into the courtroom. This conclusion, which the majority does not directly contradict, is based on several facts. First, defense counsel expressed concern because the trial court would not entertain his exceptions to the charge until the judge returned after 3 p.m., and after the jury began its deliberations.10 Second, defense counsel, when taking his exception to the supplemental instruction on accessorial liability the next day, referred to the fact that the jury had been deliberating for approximately one and one-half hours. Third, it is common sense to conclude that the jury commenced its deliberations prior to the charge on accessorial liability due to the fact that the jury crafted two questions for the trial *368court, one of which prompted the giving of the accessorial liability charge.11
The conclusion that the jury began deliberating before the trial court instructed it on accessorial liability is buttressed by several other revealing facts contained in the transcripts. Before the jury returned to the courtroom at 3:57 p.m., the trial court had a short colloquy with the attorneys regarding the jury questions it had been presented with by the sheriff. After the questions were read into the record, the trial court stated that “if they want to keep deliberating, I don’t have any problem. We’ll just tell them that we can’t give them an answer right now.” The assistant state’s attorney indicated that he did not want the jury to continue deliberating without the jury’s questions first being answered by the court. After the jury returned to the courtroom, the trial court excused the jurors for the day and indicated that the court would answer their questions in the morning. In doing so, it was clearly indicated by the jury that it had been deliberating.12 The next morn*369ing, the trial court gave supplemental instructions to the jury on certain issues and added the improper instructions on accessorial liability.
Unlike in Steve, we know that the jury’s verdict was not unanimous in the present case. See State v. Steve, supra, 208 Conn. 47 (jury not polled, but concluding that trial court’s improper instruction on accessorial liability “more likely than not affected the result”). Here, the trial court polled the jury and exposed the fact that ten jurors had found the defendant guilty as a principal on the capital felony and robbery in the first degree counts, and two jurors had found him guilty as an accessory on those counts.
Finally, the defendant was misled by the state because the state advised the trial court and defense counsel, after the presentation of its case-in-chief, that it would not seek a charge on accessorial liability unless the defendant suggested, by way of evidence or argument to the jury, that he was was not a principal, but an accessory.13 The defendant relied on this representation when he presented his defense. It was only after the jury sought a clarification as to whether it could find the defendant guilty as an accessory on certain counts did the trial court broaden the defendant’s potential culpability by instructing the jury that it could find him guilty as an accessory on those counts on which he had been charged only as a principal.
I find that not only is this case on all fours with Steve, but it presents additional facts, all of which are undisputed, that make it more compelling. In my view, the accessorial liability instruction deprived the defendant of a fair trial and due process of law. See State v. Franko, 199 Conn. 481, 491-92, 508 A.2d 22 (1986) (“[d]ue process requires that a criminal defendant be *370given notice of the specific charge against him and an opportunity to defend against that charge”).
Accordingly, I dissent.
The defendant was also charged with and found guilty of two counts of murder. The jury was not polled on the murder counts because murder is a lesser included offense of the crime of capital felony.
The defendant also raises the issue of whether such a nonunanimous jury verdict passes state constitutional muster. I leave that issue for another day.
General Statutes § 53a-8 provides in pertinent part: “Criminal liability for acts of another, (a) A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct, and may be prosecuted and punished as if he were the principal offender. . . .”
General Statutes § 53a-48 provides in pertinent part: “Conspiracy. . . . (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy. ...”
In addition, count two of the substitute information provides in pertinent part: “Said State’s Attorney further accuses Jesus Alberto Correa of the crime of conspiracy to commit murder, in violation of Connecticut General Statutes Sections 53a-48 [conspiracy] and 53a-54a [murder], and charges that, at an unknown place, on or around November 15, 1990, Correa agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to intentionally cause the death of two persons . . . and that Correa committed an overt act in furtherance of said conspiracy, that is, he obtained a handgun and went to Adelaide Street, Hartford, CT, on November 15, 1990, to commit said murders.”
Also, count eight provides: “Said State’s Attorney further accuses Jesus Alberto Correa of the crime of conspiracy to commit robbery in the first degree, in violation of Connecticut General Statutes Sections 53a-133, 53a-134 (a) (1) (2), and 53a-48, and charges that, at an unknown place, on or around November 15, 1990, Correa agreed with another person, who is believed to use the street name, ‘Yo-Yo,’ to commit the crime of robbery in the first degree . . . and that Correa committed an overt act in furtherance of said conspiracy, that is, he obtained a handgun and went to Adelaide Street, Hartford, CT, on November 15, 1990, to commit said crime.”
The majority also relies on the fact that the felony murder charges in counts six and seven of the substitute information allege that the defendant, or another participant, caused the deaths of the two victims. The defendant does not raise the issue of notice of accessorial liability with respect to counts six and seven, but, rather, he argues that he was not given notice of his potential culpability as an accessory under the capital felony charge (count three), the murder charges (counts four and live), and the robbery in the first degree charge (count nine).
“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 *365defense and to avoid prejudicial surprise. ... A bill of particulars limits the state to proving that the defendant has committed the offense in substantially the manner described.” (Citation omitted; internal quotation marks omitted.) State v. Steve, supra, 208 Conn. 44.
See footnote 9 of this opinion.
The majority relies on the vague testimony of an eyewitness in the state’s case-in-chief that, after she heard gunshots, she saw someone, who did not look unlike the defendant, run from the victim’s automobile carrying a box and enter the passenger side of the getaway vehicle. The majority states that this testimony demonstrates that the state attempted to prove that the defendant was either the principal or an accessary. This assertion, however, is inconsistent with the admission by the assistant state’s attorney at trial and the theory on which the state tried its case.
After the state completed its case-in-chief, the assistant state’s attorney started to mention the possible issue of accessorial liability, and the trial court quickly responded by asking him, “[d]o we have some evidence here of accessorial liability?” The assistant state’s attorney responded: “I don’t think so but . . . there’s a possibility that defense counsel could either *366argue to the jury or perhaps attempt to present evidence that . . . the defendant was the driver and not the assailant or whatever. And if that’s the case, we certainly want the record to be clear that if such an argument or suggestion is going to be made to the jury, we would rely on the statute that allows Your Honor to charge [him as an] accessory even though he was charged as aprincipal in the information.” There is not even a suggestion by the assistant state’s attorney that the defendant presented evidence or raised the issue of accessorial liability.
The state, in its closing argument, argued to the jury that the defendant was the shooter/robber and reminded the jury “that you do not need to know the identity of any accomplice or any coconspirator in order to find the defendant guilty of the crimes charged that involve an accomplice or coconspirator.” Indeed, the state presented testimony that the defendant, shortly after the time that the shootings occurred, arrived at his girlfriend’s apartment carrying a box, with blood on his pants. The state also offered forensic evidence and testimony that the shirt worn by the defendant at that time contained residue from gunshots fired at close range.
The following colloquy occurred after the judge excused the jury and advised counsel that he would not return until approximately between 3 and 3:30 p.m.:
“Mr. Gold [Defense Counsel]: . . . My concern is that the jury will be deliberating for a period of time and we have a number of exceptions to be made and I don’t want to waive — I’m prepared to do it—
“The Court: You are not waiving anything. All right? If the jury comes back before you get your exceptions in, I guess we’re stuck with that and I don’t expect that to happen.
“Mr. Massameno [Assistant State’s Attorney]: Well, I don’t expect it either but I presume that Your Honor would consider any exceptions to the charge before receiving a verdict.
“The Court: Absolutely. But I mean, if they say they’ve come to a verdict and I haven’t done it yet, I suppose we’ll have to face that at the time but well face that.”
The first question from the jury, written by the foreperson of the jury at 2:20 p.m., asking whether it could begin deliberating, was obviously moot by the time the jury was brought back into the courtroom at 3:57 p.m. The second question from the jury, written by the foreperson at 3:25 p.m., was with respect to whether it could consider accessorial liability on certain charges.
After the jury returned to the courtroom, one juror asked the court whether the juiy would be allowed to continue deliberating without having its questions answered. The following colloquy occurred:
“The Court: [Sjomebody have a question? Is there a problem at coming in at 10 o’clock?
“Juror: No, I was just — we shouldn’t continue if we — I mean, if we feel that we want to continue without having those questions ....
“The Court: Without the questions being answered at this time? Do you want to?
“Juror: I don’t know. We have to discuss it but is that an option?
“The Court: Well, if you’d like to. If you’d like to but I don’t — you know, I’d just as soon you not — I’d like to answer your questions first. I think perhaps you might be going down the wrong road if I don’t answer them first. So, do you agree with that? Okay. ... So then I’ll excuse you at this time . . . .”
See footnote 9 of this opinion.