concurring and dissenting. The majority opinion leaves open the issue of whether the state can foist an affirmative defense upon a defendant, the very assertion of which implicates him in the crime, when his defense is mere presence (that is, he was present at the scene but did not participate in the commission of the crime). I would reach that issue because, in my view, having allowed the state to argue that the defendant failed to prove an affirmative defense that he did not assert, combined with the trial court’s instruction on that affirmative defense, created a highly prejudicial situation requiring that we grant the defendant a new trial.
In this case, the defendant, Anthony Small, testified that he was at the scene when the victims were shot, but he denied participating in the incident. At the request of the state, and over the objection of the defendant, the *121trial court instructed the jury on the affirmative defense to felony murder — that is, in this case, although the deaths occurred during the commission of a robbery, the defendant “(1) [d]id not commit the homicidal act[s] or in any way solicit, request, command, importune, cause or aid the commission thereof; and (2) was not armed with a deadly weapon, or any dangerous instrument; and (3) had no reasonable ground to believe that any other participant was armed with such a weapon or instrument; and (4) had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury.” General Statutes § 53a-54c.
The entire scenario in which this affirmative defense was played out before the jury was highly prejudicial. The state’s strategy was to make it appear that the defendant’s defense to the felony murders was not that he did not participate in the robbery, the underlying crime for the felony murders, but that he relied upon the affirmative defense to felony murder for which he had the burden of proof. The state could then argue to the jury, as it did, that although the defendant relied on the affirmative defense, he did not sustain his burden of proving that defense, a defense the defendant never asserted in the first place. This strategy enabled the state to gain the tactical advantage of placing the defendant in the light of having participated in the robbery, but that he was seeking to avoid the consequences of the deaths that resulted by asserting the affirmative defense. And, of course, the affirmative defense would fail by necessity because there was insufficient evidence to support it.
I realize that in State v. Asherman, 193 Conn. 695, 729-33, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), this court held, over the objection of the defendant, that if there was sufficient evidence to support a less culpable mental *122state, the trial court, notwithstanding the defendant’s objection, could instruct the jury on a crime supported by that mental state. In Asherman, that less culpable mental state was not an affirmative defense, but, rather, it was a lesser included offense. Instructing on a lesser included offense, for which the state has the burden of proof, is a far cry from instructing on an affirmative defense for which the defendant carries the burden. Instructing on such an affirmative defense implants in the minds of the jurors that the defendant committed the underlying crime — in this case robbery — but sought to avoid the consequences that would result from felony murder. Cf. United States v. Johnson, 968 F.2d 208, 213-14 (2d Cir.), cert. denied, 506 U.S. 964, 113 S. Ct. 436, 121 L. Ed. 2d 355 (1992) (“[A]n affirmative defense may not, in operation, negate an element of the crime which the government is required to prove; otherwise, there would be too great a risk that a jury, by placing undue emphasis on the affirmative defense, might presume that the government had already met its burden of proof. Such a presumption would, without question, violate due process.”).1
*123In my view, the giving of an instruction on an affirmative defense over the objection of the defendant requires reversal of the defendant’s conviction. Furthermore, seeking such an instruction is an unfair tactic employed by the state that this court should not condone.
I agree with part I of the majority opinion that felony murder cannot be a predicate for a capital felony conviction. I dissent with respect to part II and would reverse the conviction and order a new trial.
In his concurring opinion, Justice Borden relies on Asherman to support the conclusion that the jury can be instructed on an affirmative defense with respect to felony murder, without the defense being sought by the defendant. Asherman, however, clearly draws the same distinction between an affirmative defense and a lesser included offense, as I do in this opinion. See State v. Asherman, supra, 193 Conn. 731 (“Under General Statutes § 53a-55 (a) (2) manslaughter predicated on the mitigating circumstance of extreme emotional disturbance is a lesser included offense of murder. . . . Under [General Statutes (Rev. to 1983)] § 53a-45 (c) the ‘jury before which any person indicted for murder is tried may find him guilty of homicide in a lesser degree than that charged.’ It follows that in any murder prosecution the issue of the lesser included offense of manslaughter under § 53a-55 (a) (2) may be raised either by the defendant by way of an affirmative defense or by the state where it is warranted by the evidence.” [Citation omitted; emphasis added.]).
Justice Borden also relies on State v. Person, 236 Conn. 342, 673 A.2d 463 (1996), to support his claim that it is proper for a trial judge to instruct the jury on an affirmative defense over the objection of the defendant. That reliance ignores the important distinction that in Person it was the defendant who requested the instruction on the inconsistent defense. Id., 344.
*123In addition, the majority, relying on State v. Sawyer, 227 Conn. 566, 579, 620 A.2d 1064 (1992), concludes that even if the trial court, impntjterly instructed the jury on the affirmative defense to felony murder, that instruction was harmless because “[o]nly after [the jury] had confronted the difficult task of resolving the issues surrounding the defendant’s complicity in the robbery could the jury have moved on to the task of deciding whether [the defendant] had satisfied the requirements of the affirmative defense [to felony murder].” In Sawyer, this court held that a jury must be instructed to first confront and unanimously complete the task of deciding the guilt or innocence of the defendant with respect to the charged offense before it, can consider any lesser included offenses that the trial court, offers in its instructions. Id., 583. The majority, however, also commits the error of not distinguishing' between lesser included offenses and affirmative defenses.