State v. Salamon
State v. Salamon
Opinion of the Court
Opinion
A jury found the defendant, Scott Salamon, guilty of one count each of the crimes of kidnapping in the second degree in violation of General Statutes § 53a-94/ unlawful restraint in the first degree
The jury reasonably could have found the following facts. In the summer of 2002, the victim, a fifteen year old female,
The defendant initially was charged with various offenses, including unlawful restraint in the first degree,
On appeal, the defendant claims that his conviction of kidnapping in the second degree must be reversed because, contrary to controlling precedent, the jury should have been instructed to find the defendant not guilty of that charge if it first found that the defendant’s restraint of the victim in connection with the kidnapping was incidental to the defendant’s restraint of the victim
I
The defendant maintains that our construction of this state’s kidnapping statutes has been overly broad, thereby resulting in kidnapping convictions for conduct that the legislature did not contemplate would provide the basis for such convictions. He claims that the legislature did not intend for the enhanced penalties available upon conviction of kidnapping
“This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law.” Conway v. Wilton, 238 Conn. 653, 658, 680 A.2d 242 (1996). “The doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. ... It is the most important application of a theory of decisionmaking consistency in our legal culture and ... is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.” (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494, 923 A.2d 657 (2007).
Moreover, “[i]n evaluating the force of stare decisis, our case law dictates that we should be especially wary
None of the foregoing principles, however, necessarily constitutes an insurmountable barrier to a court’s reconsideration of its prior precedent. With respect to the doctrine of stare decisis, we repeatedly have observed that “[t]he value of adhering to [past] precedent is not an end in and of itself ... if the precedent reflects substantive injustice. Consistency must also serve a justice related end. . . . When a previous decision clearly creates injustice, the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision. . . . The court must weigh [the] benefits of [stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust. ... It is more important that the
We also have recognized that “legislative inaction [following our interpretation of a statute] is not necessarily legislative affirmation . . . .” (Internal quotation marks omitted.) State v. Colon, supra, 257 Conn. 598 n.14; accord Rivera v. Commissioner of Correction, 254 Conn. 214, 252, 756 A.2d 1264 (2000). Indeed, we recently have observed that the legislature’s failure to
For several reasons, we are persuaded that it is appropriate to reexamine our interpretation of the kidnapping
Second, the issue presented by the defendant’s claim is not one that is likely to have reached the top of the legislative agenda because the issue directly implicates only a relatively narrow category of criminal cases, that is, kidnapping cases in which the restraint involved is incidental to the commission of another crime. Moreover, in contrast to other matters that are subject to
Third, this court never has undertaken an extensive analysis of whether our kidnapping statutes warrant the broad construction that we have given them. Although we consistently have reaffirmed our existing construction of those statutes, our conclusion essentially has been limited to the general observation— predicated solely on the language of the kidnapping statutes—that the “legislature [has] not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping.” (Internal quotation marks omitted.) State v. Luurtsema, supra, 262 Conn. 202; accord State v. Wilcox, 254 Conn. 441, 465, 758 A.2d 824 (2000); State v. Amarillo, 198 Conn. 285, 304-305, 503 A.2d 146 (1986); State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979); State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977). In view of the fact that the parties to the present appeal have thoroughly and thoughtfully briefed the issue, this case affords us the opportunity to conduct a more searching examination of the merits of that issue than we previously have undertaken.
A fourth, albeit related, reason to reconsider our prior holdings construing the kidnapping statutes to encompass virtually all sexual assaults and robberies is that all of our prior cases have relied on a literal application of the language of our kidnapping statutes. See, e.g., State v. Luurtsema, supra, 262 Conn. 201-202. Although we frequently adhere to the literal language of a statute, we are not bound to do so when it leads to unconscionable, anomalous or bizarre results. See, e.g., Clark v.
Fifth, “the legislative acquiescence doctrine requires actual acquiescence on the part of the legislature. [Thus] [i]n most of our prior cases, we have employed the doctrine not simply because of legislative inaction, but because the legislature affirmatively amended the statute subsequent to a judicial or administrative interpretation, but chose not to amend the specific provision of the statute at issue.” Berkley v. Gavin, 253 Conn. 761, 776-77 n.11, 756 A.2d 248 (2000). In other words, “[legislative concurrence is particularly strong [when] the legislature makes unrelated amendments in the same statute.” (Internal quotation marks omitted.) Discuillo v. Stone & Webster, 242 Conn. 570, 594, 698 A.2d 873 (1997) (Berdon, J., dissenting). It is significant, therefore, that, with the exception of a 1993 amendment to § 53a-94 affecting only its penalty provisions,
Finally, since 1977, when this court first rejected a claim that a kidnapping conviction could not be based
The crime of kidnapping and other offenses primarily involving restrictions of another person’s liberty, including unlawful restraint and custodial interference,
Since 1977, we have had numerous opportunities to examine the scope of the kidnapping statutes, generally in response to a claim that the crime of kidnapping was not intended to apply to a restraint that was merely incidental to the commission of another crime. See, e.g., State v. Luurtsema, supra, 262 Conn. 200; State v. Wilcox, supra, 254 Conn. 465-66; State v. Amarillo, supra, 198 Conn. 304-306; State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983); State v. Johnson, 185 Conn. 163, 177-78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 477 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, supra, 177 Conn. 342-43; State v. Chetcuti, supra, 173 Conn. 170. In reliance on a literal application of the statutory language, we consistently have rejected that claim, explaining that, because the statutory definitions of the terms “restrain” and “abduct” contain no time or distance specifications, the
In Luurtsema, we applied these principles strictly in upholding the first degree kidnapping conviction of the defendant, Peter Luurtsema, whose restraint of the victim was both minimal and entirely coextensive with the defendant’s attempted sexual assault of the victim. See State v. Luurtsema, supra, 262 Conn. 200-204. In the hours leading up to the attempted sexual assault, the victim was Luurtsema’s consensual social companion,
In light of the considerations identified by Justices Borden and Katz in Luurtsema, and because of the relative severity of the penalties available upon conviction of the crime of kidnapping, a close examination
At least in a case not involving the secreting of a victim in a place that he or she is unlikely to be found; see General Statutes § 53a-91 (2) (A); it is the intent element only that differentiates an abduction—the sine qua non of the crime of kidnapping—from a mere unlawful restraint, and the relatively minor penalties attendant to the latter offense.
Kidnapping, a common-law misdemeanor, traditionally was defined as the forcible removal of another individual from the country. See 3 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 18.1, p. 4; see also 4 W. Blackstone, Commentaries on the Laws of England (1769) p. 219. Early American statutes defining the crime retained the requirement of a boundary crossing but relaxed the requirement by proscribing the victim’s forcible removal from the state. See note, “From Blackstone to Innis: A Judicial Search for a Definition of Kidnapping,” 16 Suffolk U. L. Rev. 367, 368 (1982). Over time, however, the scope of proscribed behavior and the penalties attendant to a kidnapping conviction were broadened substantially by state legislatures. See 3 W. LaFave, supra, § 18.1, pp. 4-5; see also note, “A Rationale of the Law of Kidnapping,” 53 Colum. L. Rev. 540 (1953). In the early twentieth century, kidnappings for ransom had become increasingly common, and state lawmakers responded by amending kidnapping statutes to criminalize a wider range of conduct and to authorize more severe sentences upon conviction. See note, supra, 53 Colum. L. Rev. 540. This trend intensified in the wake of the highly publicized kidnapping and murder of the young son of famed aviator Charles Lindbergh in 1932 and the public outcry that followed. See 3 W. LaFave, supra, § 18.1, p. 4. Among the evils that both the common law and later statutory prohibitions against kidnapping sought to address were the isolation of a victim from the protections of society and the law and the special fear and danger inherent in such isolation.
The evolution of Connecticut’s kidnapping statutes tracks these developments. Prior to 1901, our kidnapping statute focused primarily on the unlawful removal
Beginning in the 1950s, however, questions surfaced about the propriety of such expansively worded kidnapping statutes. In particular, concerns were expressed that the newly adopted kidnapping statutes permitted the imposition of extremely severe sanctions for a broad and ill defined range of behavior, including relatively trivial types of restraint. See 3 W. LaFave, supra, § 18.1, pp. 4-5. Moreover, as one commentator noted, “virtually all conduct within the scope of kidnapping law [was] punishable under some other criminal provision: e.g., extortion, homicide, assault, rape, robbery, statutory rape, [and] contributing to the delinquency of a minor .... Consequently, the practical effect of kidnapping law [was] to permit the imposition of additional sanctions when one of [those] other crimes [was] accompanied by a detention and asportation.” Note, supra, 53 Colum. L. Rev. 556.
These concerns prompted calls for legislative reform by the drafters of the Model Penal Code. As the drafters stated in the commentary to the proposed code, the goal was “to devise a proper system of grading to discriminate between simple false imprisonment and the more terrifying and dangerous abductions for ransom or other felonious purpose.” Model Penal Code § 212.1, comment 1, p. 11 (Tentative Draft No. 11, 1960). The drafters, noting that “[e]xamples of abusive prosecution
Contraction of the scope of kidnapping law also was effected through the courts. In the landmark case of People v. Levy, 15 N.Y.2d 159, 163-65, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965), the New York Court of Appeals rejected a literal application of New York’s broadly worded kidnapping statute to the detention and movement of two armed robbery victims during the course of the robbery. The court noted that the provision at issue, which defined kidnapping as “confin[ing] another with intent to cause him ... to be confined against his will”; (internal quotation marks omitted) id., 164; “could literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.” Id. The court concluded that the legislature did not intend for “restraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes ... to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words.” Id.; see also People v. Lombardi, 20 N.Y.2d 266, 270, 229 N.E.2d 206, 282 N.Y.S.2d 519 (1967) (“the direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to
Soon thereafter, the Supreme Court of California, in People v. Daniels, 71 Cal. 2d 1119, 459 P.2d 225, 80 Cal. Rptr. 897 (1969), a case involving a series of robberies and sexual assaults in which the victims had been forced to move short distances in the moments immediately preceding the commission of those crimes; see id., 1123-25; followed the approach of the New York Court of Appeals in Levy. Id., 1134-36. At the time, kidnapping was defined in the California Penal Code as “the act of one who forcibly steals, takes, or arrests any person in th[e] state, and carries him into another country, state, or county, or into another part of the same county.” (Internal quotation marks omitted.) Id., 1126. The court overruled its earlier, literal interpretation of the kidnapping provision in light of the contemporaneous “current of common sense in the construction and application of [kidnapping] statutes”; id., 1127; and concluded that the statute did not apply to the defendants in that case because their movement of the victims was minimal and incidental to other crimes, that is, those movements were compelled solely to facilitate the commission of the sexual assaults and robberies. Id., 1130-31, 1134, 1140. The court found support for its conclusion in the holdings of Levy and Lombardi, despite differences in the wording of New York’s kidnapping statutes, because the reasoning of the New York Court of Appeals was persuasive and representative of the more enlightened, modem approach.
We note, finally, that when drafting the revised criminal code, the commission drew generally from comparable provisions of New York’s Revised Penal Law and the Model Penal Code. Commission to Revise the Criminal Statutes, supra, tit. 53a, p. 1, reprinted in 28 Conn. Gen. Stat. Ann. tit. 53a (West 2007) p. 289. Overall, the commission sought to create a code that met certain standards: “that it be rational, coherent, cohesive and intelligible; that it take into account modem knowledge and information; that it be based on reason and experience; and that it reflect an enlightened and informed outlook.” Commission to Revise the Criminal Statutes, Proposed Connecticut Penal Code (1969) p. 7.
Our conclusion is bolstered by the fact that, in the years since Levy and Daniels, a considerable majority of state courts have followed the lead of New York and California in concluding that the crime of kidnapping does not include conduct involving a restraint that is merely incidental to the commission of some other crime against the victim. See, e.g., Patzka v. State, 348 So. 2d 520, 523-24 (Ala. Crim. App. 1977); Alam v. State, 776 P.2d 345, 349 (Alaska App. 1989); Summerlin v. State, 296 Ark. 347, 350-51, 756 S.W.2d 908 (1988); People v. Daniels, supra, 71 Cal. 2d 1130-31, 1134; People v. Bridges, 199 Colo. 520, 528-29, 612 P.2d 1110 (1980);
Our holding does not represent a complete refutation of the principles established by our prior kidnapping jurisprudence. First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement.
Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime.
Second, we do not retreat from the general principle that an accused may be charged with and convicted of more than one crime arising out of the same act or acts, as long as all of the elements of each crime are proven. Indeed, because the confinement or movement of a victim that occurs simultaneously with or incidental to the commission of another crime ordinarily will constitute a substantial interference with that victim’s liberty, such restraints still may be prosecuted under the unlawful restraint statutes. Undoubtedly, many crimes involving restraints already are prosecuted under those provisions. Moreover, our holding is relatively narrow and directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping. We therefore do not anticipate that our holding will force a major shift in prosecutorial decision making.
Finally, in the present case, the defendant claims that he is entitled to a judgment of acquittal on the kidnapping count. The defendant contends that, in light
The evidence established that the defendant came up to the victim from behind her and, while she was walking up a staircase, grabbed her by the back of the neck. The victim fell to the floor, and the defendant held her there. She struggled to free herself from the defendant’s grasp and screamed for him to let her go. The defendant continued to hold her down, however, and, when she persisted in screaming and fighting to extricate herself, he punched her once in the mouth and attempted to thrust his fingers down her throat. According to the victim, the defendant forced her to remain on the ground for at least five minutes before she was able to get away.
On the basis of these facts, a juror reasonably could find that the defendant’s restraint of the victim was not merely incidental to his assault of the victim. The victim testified that the defendant, after accosting her, forcibly held her down for five minutes or more. Although the defendant punched the victim once and shoved his fingers into her mouth, that conduct was very brief in contrast to the extended duration of the defendant’s restraint of the victim. In light of the evidence, moreover, a juror reasonably could find that the defendant pulled the victim to the ground primarily for the purpose of restraining her, and that he struck her and put his fingers in her mouth in an effort to subdue her and to prevent her from screaming for help so that she could not escape.
We next address the defendant’s claim that he is entitled to a new trial on the charges of unlawful restraint in the first degree and risk of injury to a child due to the allegedly improper conduct of the deputy assistant state’s attorney (state’s attorney) during the trial. Specifically, the defendant contends that the state’s attorney improperly (1) suggested to the jury that the defendant had attempted to assault the victim sexually, despite the lack of evidence of any such attempted sexual assault, (2) denigrated defense counsel and asserted that counsel had attempted to mislead the jury, (3) used leading questions excessively during his direct examination of several of the state’s witnesses, (4) cross-examined the sole defense witness, and (5) referred to facts not in evidence during closing argument. Although we agree that some of the challenged conduct was improper, we conclude that, collectively, it did not rise to the level of a due process violation requiring a new trial.
“In analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine
A
1
The defendant first claims that the state’s attorney unfairly prejudiced the jury against him by encouraging the jury to speculate that the case involved an attempted sexual assault, a crime with which the defendant was not charged. We agree, in part, with the defendant.
The following additional procedural history is relevant to our review of this contention. When the defendant first was arraigned, he was charged with multiple offenses but no sexual offense. Approximately one year later, on the first day of jury selection, the state’s attorney filed an amended information charging the defendant, for the first time, with kidnapping and attempted sexual assault in the third degree. The new information was read to the jury pool during each of the two days of jury selection that followed. On the day before the evidentiary portion of the trial commenced, the defendant filed a motion to dismiss the two new charges, claiming that there was no factual basis for them. Prior to argument on the defendant’s motion, the state’s attorney filed a substitute information that did not contain the charge of attempted sexual assault in the third degree or any other sexual offense. During argument on the motion, the defendant claimed that the state’s
At trial, the state’s attorney called the victim as a witness. On direct examination, she testified in detail as to the events at the train station on the evening that she was attacked. In her testimony about those events, the victim explained that, as she and the defendant were struggling on the steps, just before she broke free, the skirt that she was wearing had started to rise. The state’s attorney asked the victim what she had on beneath her skirt that evening, and the victim replied that she had been wearing a pair of shorts and underclothing. The state’s attorney then asked the victim: “Did [the defendant] ever get into any of your underclothing?” Defense counsel objected to the question and, after the jury was excused, moved for a mistrial. Defense counsel argued that, because there was no evidence that a sexual assault had occurred or had been attempted, the line of questioning was improperly suggestive and prejudicial, and demonstrated bad faith on the part of the state’s attorney. The state’s attorney responded that he merely was trying to narrow his case by establishing that the defendant had not intended to assault the victim sexually but, rather, that he had intended to inflict physical injury on her. The court instructed the state’s attorney that it was unnecessary for the state to disprove that the defendant had intended to commit a sexual assault but denied the motion for a mistrial. The trial court agreed, however, to give a
Finally, during closing argument, the state’s attorney alluded to the defendant’s alleged intentions on the night of the incident in question. In particular, the state’s attorney made the following statements during the course of his closing argument: “You all know what he wanted to do. You know all what he tried to do and you all know what he accomplished that night. . . . Ask yourself, what was this thirty-two year old, unemployed male at the train station at about [10 to 10:30 p.m.] doing? When he saw that girl walking into a secluded area, you all know what he wanted to do, tried to do and what he did. . . . [The defendant] knew the severity of his actions on a child, what he wanted to do and accomplish.” Defense counsel objected to these statements and, again, moved for a mistrial. The trial court overruled defense counsel’s objections and denied the motion for mistrial, explaining that the state’s attorney’s remarks were a reference to the defendant’s alleged intent to restrain and abduct the victim, not to assault her sexually. Finally, during his rebuttal argument, the state’s attorney reiterated: “You know what [the defendant] wanted to do, he tried to do and what he accomplished? The abduction was accomplished because he held her down with force . . . .”
The defendant contends that the foregoing conduct of the state’s attorney was improper because it was designed to inflame the jury by injecting a sexual offense into the case. “[T]his court has recognized on numerous occasions that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they
With respect to the state’s attorney’s pretrial amendments to the original information and his statements during closing argument, we are not persuaded that the conduct was improper. Before a trial commences, a prosecutor has broad authority to add or delete charges, provided the defendant is not unduly prejudiced by those actions. Practice Book § 36-17; see also State v. Tanzella, 226 Conn. 601, 607, 628 A.2d 973 (1993). Nevertheless, a prosecutor should not bring charges that are unsupported by the evidence. See, e.g., American Bar Association, Standards for Criminal Justice: Prosecution Function and Defense Function (3d Ed. 1993) standard 3-3.9 (f), p. 71 (ABA Standards for Criminal Justice). In the present case, the victim’s statement to the police indicated that her skirt had been hiked up during her encounter with the defendant and that, at the time, she believed that he intended to rape her. Accordingly, we cannot conclude that the state’s attorney lacked a good faith basis for adding the attempted sexual assault charge even though he later withdrew it.
With respect to the statements made by the state’s attorney during closing argument, we will not second-guess the determination of the trial court that those statements did not allude to the withdrawn attempted sexual assault charge. Because the defendant was charged with kidnapping and unlawful restraint, both specific intent crimes, it was reasonable for the court to conclude, as the state’s attorney represented, that the comments were intended to highlight for the jury
The state’s attorney’s question to the victim as to whether the defendant had tried to get into her underclothing, however, was improper. “A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.” ABA Standards for Criminal Justice, supra, standard 3-5.7 (d), p. 103. “It is an improper tactic for . . . the prosecutor ... to attempt to communicate impressions by innuendo . . . when the questioner has no evidence to support the innuendo.” Id., standard 3-5.7, commentary, p. 106; see also B. Gershman, Prosecutorial Misconduct (2dEd. 2007) § 10:20, p. 404 (“[cjourts have consistently condemned prosecutors’ attempts to create an impression on the jury by innuendos in questions when no supporting evidence exists”). By the time the victim testified, the state’s attorney had withdrawn the attempted sexual assault charge, and he necessarily was aware that the evidence was inadequate to support a conviction for that offense. Indeed, the explanation that the state’s attorney proffered confirms as much. Finally, even if we credit the explanation that the state’s attorney gave for the question, that explanation is inadequate to justify the challenged argument because, as the trial court observed, the state did not have the burden of proving that the defendant was not trying to assault the victim sexually. We therefore agree with the defendant that it was improper for the state’s attorney to ask the victim whether the defendant had attempted to “get into . . . [her] underclothing.”
2
The defendant next claims that the state’s attorney repeatedly denigrated defense counsel and improperly
According to the defendant, the state’s attorney, during trial, made derogatory remarks about, and facial expressions toward, defense counsel.
The defendant also takes issue with that portion of the state’s attorney’s rebuttal argument in which he used the terms “red herring” and “smoke screen” to characterize certain issues that defense counsel had raised during his closing argument.
“There is a distinction between argument that disparages the integrity or role of defense counsel and argument that disparages a theory of defense.” State v. Orellana, 89 Conn. App. 71, 101, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). Moreover, not every use of rhetorical language is improper. E.g., State v. Warholic, 278 Conn. 354, 363, 897 A.2d 569 (2006). A “red herring” is defined in relevant part as “a
3
The defendant further contends that the state’s attorney engaged in the excessive use of leading questions. In support of his claim, the defendant points to numerous instances in which the state’s attorney posed leading questions to the victim, the victim’s mother and Gary Albert, a security guard who was assigned to the Stamford train station on the night the victim was accosted there. We also reject this claim of impropriety.
Leading questions generally are inappropriate on direct or redirect examination of a witness, although the court has discretion to allow them in certain circumstances. See Conn. Code Evid. § 6-8 (b). Under § 6-8 (b) (3) of the Connecticut Code of Evidence, the court may permit leading questions when they are “necessary to develop a witness’ testimony . . . .” The commentary accompanying § 6-8 (b) (3) of the Connecticut Code of Evidence explains that, under that exception, the court “may allow the calling party to put leading questions to a young witness who is apprehensive or reticent” or “to a witness who has trouble communicating, by virtue of either a disability or language deficiency . . . .” (Citation omitted.) Conn. Code Evid. § 6-8 (b), commentary.
As to Albert, the record reveals that his native language is French and that he had substantial difficulty testifying in English. The court therefore agreed to allow the state’s attorney a measure of leeway in his questioning of Albert, stating: “I [the court] had no idea what [Albert] was saying. So the jury must not have any idea what he’s saying.” The trial court acted well within its discretion in permitting the state’s attorney to put leading questions to the victim and to Albert.
Our review of the record indicates that certain questions posed by the state’s attorney to the victim’s mother were leading. In each such instance, however, the trial court sustained defense counsel’s objection to the leading question, and, as a result, any answer that the victim’s mother had given to these questions was stricken. The defendant has provided no reason, and we are aware of none, why the questions themselves were so prejudicial or harmful as to render the trial unfair. Consequently, the defendant’s claim must fail.
4
The defendant’s next claim is that the state’s attorney’s cross-examination of the sole defense witness,
The following additional procedural history is necessary to our evaluation of the defendant’s claim. At trial, the defendant sought to establish that he was intoxicated when he attacked the victim and, therefore, that he could not have formed the specific intent necessary to commit either the crime of kidnapping or the crime of unlawful restraint. In support of his claim of intoxication, the defendant presented the testimony of Dahlgren, a casual acquaintance who knew the defendant because the two had frequented the same swimming pool and health club. Dahlgren had been identified and located by the defense, with the assistance of the defendant’s mother, on the evening before she testified, and she was not disclosed as a witness until the day of her testimony. To some degree, she was a reluctant witness. Dahlgren testified, in essence, that she had seen the defendant at the pool on the evening in question and that he was highly intoxicated. She further testified that she recalled observing the defendant in that condition on the night in question because there had been a holiday party at the pool that evening, and because the defendant repeatedly had asked her for cigarettes.
The defendant challenges the propriety of the state’s attorney’s use of sarcasm during his cross-examination of Dahlgren. The defendant refers to several examples of the state’s attorney’s use of the device: (1) the state’s attorney asked Dahlgren whether she was “certified in giving roadside . . . eye tests” as a follow-up to her testimony that she believed that the defendant had been
The defendant contends that the state’s attorney’s questioning of Dahlgren was improper because his
We conclude that the foregoing portions of the state’s attorney’s cross-examination of Dahlgren, when considered together, ran afoul of these proscriptions.
5
The defendant further claims that the state’s attorney improperly referred to facts not in evidence during closing argument. We disagree.
The following facts are relevant to this claim. In questioning the victim’s mother, the state’s attorney asked her why the victim would not discuss the incident at the train station. The victim’s mother responded: “[S]he told me she didn’t want to talk to me right now. She did not want to relive that incident.” Defense counsel objected to the testimony insofar as it purported to explain why the victim was unwilling to discuss the incident, and the trial court sustained the objection. The defendant now claims that the state’s attorney should not have referred to this testimony in his closing argument.
Of course, it is improper for a prosecutor, in his closing argument, to refer to evidence that has been stricken or ruled inadmissible. See, e.g., State v. Oliveras, 210 Conn. 751, 763, 557 A.2d 534 (1989). In the present case, however, on cross-examination of the victim’s mother, defense counsel elicited virtually the same testimony. Specifically, in response to defense counsel’s question as to whether the victim had been willing to get counseling, the victim’s mother replied: “She was unwilling because she did not want to relive the incident. She didn’t want to go through it. She did not want to confide in anyone about it.” Because this testimony of the victim’s mother was properly before the jury, the state’s attorney’s reference to the substance of that testimony in closing argument was proper.
B
Having concluded that some of the state’s attorney’s conduct at trial was improper, we now must determine
In addition, “[although a defendant’s failure to object to improprieties does not preclude review of his claims . . . [w]hen defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendant’s right to a fair trial. . . . [T]he fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.” (Citation omitted; internal quotation marks omitted.) Id., 782. The defendant did object and move for a mistrial following the state’s attorney’s inquiry of the victim as to whether the defendant had gotten into her underclothing. Much of the state’s attorney’s cross-examination of Dahlgren that the defendant challenges on appeal, however, was not the subject of a contemporaneous objection. To the extent that defense counsel failed to raise an objection, that fact weighs against the defendant’s claim that the improper conduct was harmful.
As to the first Williams factor, the state’s attorney’s conduct that we have concluded was improper was not invited by the defense. Defense counsel sought to
With respect to the second and third Williams factors, the improprieties were not particularly severe or frequent when viewed in the context of the entire trial, which spanned several days and included eleven witnesses. See, e.g., State v. James G., 268 Conn. 382, 419, 844 A.2d 810 (2004) (in examining claim of prosecutorial impropriety, prosecutor’s conduct must be viewed in broader context of entire trial). With respect to the state’s attorney’s improper questioning of the victim about whether the defendant had attempted to “get into” her underclothing, that questioning was brief and isolated, and the trial court immediately sustained defense counsel’s objection to that inquiry. Furthermore, the victim and at least two other witnesses testified as to the victim’s belief that the defendant had been trying to rape her, and a statement that the police had taken from the victim immediately after the incident, which was admitted into evidence, also reflected the victim’s belief as to the defendant’s motivation in that regard. Finally, although improper, the state’s attorney’s unduly sarcastic and repetitive questioning of Dahlgren was neither egregious nor representative of a pattern of similar conduct throughout the trial.
Finally, although Dahlgren’s testimony was relevant to a central issue in the case, namely, the defendant’s intent, the state’s case against the defendant was strong. The defendant did not contest the state’s proof that he had accosted the victim at the train station and did not dispute the essential facts relating to that altercation. Rather, the defendant attempted to demonstrate that he had been so intoxicated when he assaulted the victim that he lacked the specific intent necessary to commit the crime of kidnapping or of unlawful restraint. The evidence that the state adduced, however, strongly contradicted the defendant’s claim. For example, two Metropolitan Transit Authority officers who were present when the defendant was apprehended shortly after the incident testified that the defendant did not appear to be intoxicated. In addition, an emergency room record documenting medical treatment that the defendant received for a twisted ankle that he suffered while running from the scene of the alleged assault of the victim does not indicate that the defendant had been intoxicated. Finally, it was apparent from her testimony that Dahlgren was not particularly friendly with or close to the defendant, a fact that minimized the effect of the state’s attorney’s efforts, some of which were improper, to undermine Dahlgren’s credibility.
Upon consideration of the relevant factors, we are satisfied that the several instances of prosecutorial
Ill
The defendant’s final claim is that the trial court improperly instructed the jury with respect to the offense of unlawful restraint in the first degree, thereby entitling him to a new trial on that charge. We disagree that the trial court’s instructions were inadequate.
The defendant claims that the trial court’s instructions were flawed because the court’s definition of the term “intent” was incomplete and, therefore, inaccurate. In support of this contention, the defendant relies on General Statutes § 53a-3 (11), which provides that “[a] person acts ‘intentionally’ with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .” (Emphasis added.) The defendant further contends that the court’s improper definition of intent rendered the instructions
The state concedes that the trial court’s definition of “intent” was incomplete because the court failed to explain the term in accordance with the statutory definition. Because the court’s definition of intent did not contain the phrase “to cause such result,” that definition focused solely on the concept of general intent—that is, an intent to engage in certain conduct—and not on the concept of specific intent—that is, an intent to bring about a certain result. “When the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent.” State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). Because, as we have explained, unlawful restraint is a specific intent crime, the court’s definition of intent, standing alone, was inaccurate for purposes of the present case.
“When reviewing [a] challenged jury instruction . . . [however] we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon
Applying the foregoing standards, we conclude that it is not reasonably possible that the jury was misled by the court’s incomplete definition of intent because the court thereafter accurately explained that, to prove the element of “restraint,” the state was required to establish that the defendant had restricted the victim’s movements “intentionally and unlawfully in such a manner so as to interfere substantially with her liberty by confining her without her consent.” (Emphasis added.) Under this explanation, there is no reasonable possibility that the jury could have found the defendant guilty of unlawful restraint unless it first had found that he had restricted the victim’s movements with the intent to interfere substantially with her liberty. In other
The judgment is reversed only as to the conviction of kidnapping in the second degree and the case is remanded for a new trial on that count. The judgment is affirmed in all other respects.
In this opinion BORDEN, NORCOTT and KATZ, Js., concurred.
General Statutes § 53a-94 provides in relevant part: “(a) A person is guilty of kidnapping in the second degree when he abducts another person. . .
“ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2).
“■‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein, ‘without consent’ means, but is not limited to, (A) deception and (B) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.” General Statutes § 53a-91 (1).
General Statutes § 53a-95 provides in relevant part: “(a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury. ...”
General Statutes (Rev. to 2001) § 53-21 (a) provides in relevant part: “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.”
The trial court sentenced the defendant to fifteen years imprisonment, suspended after eight years, and five years probation for the conviction of kidnapping in the second degree, three years imprisonment for the conviction of unlawful restraint in the first degree, and three years imprisonment for the conviction of risk of ipjury to a child. All sentences were to run concurrently.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
In Luurtsema, we rejected a claim identical in all material respects to the claim that the defendant raises in the present case, namely, that a defendant may not be convicted of the crime of kidnapping when the restraint used in the commission of that offense is merely incidental to the commission of the crime of sexual assault. See State v. Luurtsema, supra, 262 Conn. 200, 202. This court first rejected a similar claim in State v.
The defendant claims that, under the construction of the kidnapping statutes that we adopt in the present case, he is entitled to a judgment of acquittal on the kidnapping count. For the reasons that we set forth in part I of this opinion, we conclude that the defendant is entitled to a new trial on the kidnapping count, not a judgment of acquittal on that count.
In accordance with our policy of protecting the privacy interests of the victims of certain crimes, including risk of injury to a child, we decline to
In the state’s original information, the defendant also was charged with breach of the peace in the second degree and interfering with an officer.
The crime of kidnapping generally carries more severe penalties than the crimes of assault, sexual assault and robbery. For example, kidnapping in the first degree is a class A felony that is punishable by a term of imprisonment of not less than ten years and not more than twenty-five years; see General Statutes §§ 53a-92 (b) and 53a-35a; whereas assault in the first degree, robbery in the first degree, and most offenses of sexual assault in the first degree are class B felonies that are punishable by a maximum term of imprisonment of twenty years. See General Statutes §§ 53a-59 (b), 53a-70 (b), 53a-134 (b) and 53a-35a. Similarly, the crime of kidnapping in the second degree is a class B felony that is punishable by a term of imprisonment of not more than twenty years; see General Statutes §§ 53a-94 (b) and 53a-35a; whereas robbery in the second degree and most offenses of sexual assault in the second degree are class C felonies that are punishable by a maximum term of imprisonment of ten years; see General Statutes §§ 53a-71 (b), 53a-135 (b) and 53a-35a; and assault in the second degree is a class D felony that is punishable by a maximum term of five years imprisonment. See General Statutes §§ 53a-60 (b) and 53a-35a. Moreover, under our current interpretation of the kidnapping statutes, conduct that is sufficient to form the basis of a conviction for a particular degree of assault, sexual assault or robbery also may form the basis of a conviction for a higher degree of kidnapping. For example, under General Statutes § 53a-72a (a) (1) (A), a person is guilty of sexual assault in the third degree, generally a class D felony punishable by no more than five years imprisonment; see General Statutes § 53a-35a; when that person compels another person to submit to sexual contact by the use of force against such other person. The very same
The defendant also raised two other claims with respect to his conviction of kidnapping in the second degree, neither of which we address in light of our determination that the defendant is entitled to a new trial on that charge. In particular, the defendant claims that (1) § 53a-94, as interpreted by this court, is unconstitutionally vague as applied to the facts of this case, and (2) the trial court improperly instructed the jury on the element of intent. We do not address the defendant’s first claim because that claim implicates this court’s prior interpretation of our kidnapping statutes, which
We do not suggest, of course, that our criminal laws do not serve the important function of general deterrence. We also do not dispute the notion that the public is entitled to fair notice of the conduct that is prohibited by our criminal laws. It is difficult to imagine, however, that a person, before committing an intentional assault, sexual assault or robbery, would stop to think about how to avoid also committing the crime of kidnapping.
Under that 1993 amendment, three years of the sentence imposed for a violation of § 53a-94 (a) shall not be suspended or reduced. Public Acts 1993, No. 93-148, § 1, codified at General Statutes § 53a-94 (b).
We note that, following this court’s opinion in State v. Luurtsema, supra, 262 Conn. 179, three bills were introduced proposing amendments to the statutory definition of kidnapping in direct response to that decision. See An Act Concerning Asportation in Kidnapping Cases, Raised Bill No. 1284, 2005 Sess. (proposing that § 53a-91 [2] be amended to provide that “ ‘abduct’ means to . . . carry away a person under coercion and restraint to another place with intent to prevent . . . such person’s liberation and to a degree that is not incidental to the commission of another crime”); An Act Concerning Asportation in Kidnapping Cases, Senate Bill No. 530, 2005 Sess. (proposing “[t]hat [General Statutes §§] 53a-91 to 53a-94a ... be amended to provide that the crime of kidnapping requires substantial restriction on movement of the victim”); An Act Coneming Asportation in Kidnapping Cases, Raised Bill No. 1159, 2003 Sess. (proposing that § 53a-91 [2] be amended to provide that “ ‘abduct’ means to . . . carry away a person under coercion and restraint to another place with intent to prevent . . . such person’s liberation and to a degree that is not incidental to the commission of another crime”). None of these bills, however, was reported out of committee. The state contends that the failure of these proposals in committee is evidence that the legislature perceived them as lacking in merit. The state’s assertion is not persuasive. As this court previously has observed, “[w]e are reluctant to draw inferences regarding legislative intent from the failure of a legislative committee to report a bill to the floor . . . because in most cases the reasons for that lack of action remain unexpressed and thus obscured in the mist of committee inactivity.’’ In re Valerie D., 223 Conn. 492, 518 n.19, 613 A.2d 748 (1992); accord Conway v. Wilton, supra, 238 Conn. 679-80. Furthermore, “we are unaware of any occasion in which this court has relied on a legislative committee’s rejection of a proposed bill as evidence of the intent of the entire General Assembly, which never voted on or discussed the proposal.” Ricigliano v. Ideal Forging Corp., 280 Conn. 723, 741-42, 912 A.2d 462 (2006); see also Bob Jones University v. United States, 461 U.S. 574, 600, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983) (“unsuccessful attempts at legislation are not the best of guides to legislative intent” [internal quotation marks omitted]); cf. In re Valerie D., supra, 518 n.19 (although no inference of legislative intent generally may be drawn from failure of legislative committee to report bill to floor, weight should be given to legislative committee’s rejection of proposed bill when [1] committee adopted second proposed bill that took directly contrary approach to first bill, [2] both bills were considered together, [3] legislative history of committee hearings contained testimony regarding relative merits and demerits of two disparate approaches represented in bills, and [4] legislature passed bill endorsed by committee).
We set forth these cases subsequently in this opinion.
For example, the highest courts of the states of New York and California have overruled their prior precedent in adopting the interpretation of their kidnapping statutes that the defendant urges us to adopt for purposes of this state’s kidnapping statutes. See People v. Daniels, 71 Cal. 2d 1119, 1139, 459 P.2d 225, 80 Cal. Rptr. 897 (1969) (overruling People v. Chessman, 38 Cal. 2d 166, 238 P.2d 1001 [1951], cert. denied, 343 U.S. 915, 72 S. Ct. 650, 96 L. Ed. 1330 [1952]); People v. Levy, 15 N.Y.2d 159, 164-65, 204 N.E.2d 842, 256 N.Y.S.2d 793 (overruling People v. Florio, 301 N.Y. 46, 92 N.E.2d 881 [1950]), cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965). In Daniels, moreover, the California Supreme Court expressly rejected the claim that the California legislature effectively had acquiesced in the holding in Chessman and, therefore, that that holding should not be revisited. People v. Daniels, supra, 1127-28. After acknowledging that the legislature had not seen fit to amend the California kidnapping statutes, the court in Daniels nevertheless concluded that it “should not hesitate to reconsider [its] prior construction of [legislative] intent whenever such a course is dictated by the teachings of time and experience.” Id., 1128.
We note, moreover, that this court previously has indicated that there may be factual scenarios in which a kidnapping conviction would constitute “an absurd and unconscionable result” because of the limited duration of
In rejecting our reasons for concluding that the doctrine of legislative acquiescence is not an absolute bar to reconsidering our prior interpretation of this state’s kidnapping statutes, the dissent purports to distinguish factu
For example, a person commits the crime of kidnapping in the second degree in violation of § 53a-94, the crime of which the defendant in the present case was convicted, “when he abducts another person." (Emphasis added.) General Statutes § 53a-94 (a). By contrast, a person commits the crime of unlawful restraint in the second degree “when he restrains another person.” (Emphasis added.) General Statutes § 53a-96 (a). We also note that the existence of certain aggravating circumstances marks the difference between the crimes of unlawful restraint in the second degree and unlawful restraint in the first degree. Compare General Statutes § 53a-95 (a) with General Statutes § 53a-96 (a). A person commits the offense of unlawful restraint in the first degree when he restrains another person “under circumstances which expose such other person to a substantial risk of physical injury." General Statutes § 53a-95 (a). The existence of certain aggravating circumstances also distinguishes the crimes of kidnapping in the first degree and kidnapping in the second degree. Thus, under General Statutes § 53a-92 (a), a person commits kidnapping in the first degree when “he abducts another person” and “(1) [hjis intent is to compel a third person (A) to pay or deliver money or property as ransom or (B) to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.”
The disparities in punishment are comparable for the first degree offenses. Unlawful restraint in the first degree is a class D felony; General Statutes § 53a-95 (b); punishable by a term of imprisonment of not less than one year and not more than five years; see General Statutes § 53a-35a; whereas kidnapping in the first degree is a class A felony; General Statutes § 53a-92 (b); punishable by a term of imprisonment of between ten and twenty-five years. See General Statutes § 53a-35a.
As we previously noted, however; see footnote 17 of this opinion; this court has recognized that “there are conceivable factual situations in which charging a defendant with kidnapping based [on] the most minuscule [movement or duration of confinement] would result in an absurd and unconscionable result . . . .” State v. Luurtsema, supra, 262 Conn. 203-204. A challenge to a kidnapping conviction predicated on such miniscule movement or duration of confinement remains viable on constitutional grounds under the vagueness doctrine. See id., 204.
Justice Borden ultimately agreed with the majority in Luurtsema, however, that any challenge to a kidnapping conviction based on “the arguable slightness of the movement and brevity of the forcible restraint” must be confined “to a claim that the kidnapping statute [is] unconstitutionally vague as applied to the facts of the particular case”; State v. Luurtsema, supra, 262 Conn. 205 (Borden, J., concurring); a claim that Luurtsema had not raised on appeal. Id., 206 (Borden, J., concurring).
Although, at first glance, it may appear that an abduction within the meaning of § 53a-91 (2) (B) may be distinguished from a restraint for purposes of § 53a-91 (1) by virtue of the former subdivision’s requirement of the threatened or actual use of physical force or intimidation, a closer reading of the statutory definition of “restrain” demonstrates that the distinction is largely illusory. Under § 53a-91 (1), the term “restrain” contemplates the unlawful and nonconsensual movement or confinement of a victim. Although it is true that a restraint may be accomplished by “deception”; see General Statutes § 53a-91 (1) (A); in the vast majority of cases, the restraint will be achieved through the use of force or intimidation. Indeed, a review of appellate decisions upholding convictions for unlawful restraint against
General Statutes (1887 Rev.) § 1416 provides: “Every person who shall kidnap, or fraudulently decoy out of this State, any person, or shall, without lawful authority, arrest or imprison any person, with intent to have him carried out of this State, or to be in any way held in service against his will, shall be fined not more than five hundred dollars, and imprisoned not more than three years.”
General Statutes (1902 Rev.) § 1162 provides: “Every person who shall kidnap, or fraudulently decoy any person out of this state, or shall, maliciously and without lawful authority, arrest or imprison any person with intent to have him carried out of this state, or in any way detained against his will; and every person who shall fraudulently or forcibly restrain any person of his liberty with intent to demand a ransom for his release, or who shall thereafter threaten physically to injure or to kill such person so fraudulently or forcibly restrained of his liberty, in case a demand for such ransom for his release is not complied with, shall be imprisoned not more than thirty years.”
General Statutes (1949 Rev.) § 8372 provides: “Any person who shall kidnap or fraudulently decoy any person into or out of this state or who shall, maliciously and without lawful authority, arrest or imprison any person with intent to have him carried out of this state or in any way detained against his will, and any person who shall fraudulently or forcibly restrain any person of his liberty, for revenge or with intent to demand a ransom, reward, concession or other valuable thing for his release, or who, with such intent, shall use any force or violence or threaten to harm or injure such person, or to fraudulently or forcibly restrain him of his liberty, shall, if death result to the person so kidnapped or restrained of his liberty, be subject to the penalties provided by the general statutes for the crime of murder, and proof of wilful, deliberate and premeditated killing or of a specific intent to kill in such case shall not be required of the state. If death shall not result to the person so kidnapped or restrained of his liberty, the person convicted of such crime shall be imprisoned in the State Prison not more than fifty years. Any person who shall conspire with another to violate
The dissent identifies several differences between this state’s kidnapping statutes and New York’s kidnapping statutes, and then asserts that those differences counsel against any reliance on New York case law interpreting the New York statutory scheme. The dissent fails to explain, however, why those differences diminish the persuasive force of those New York cases.
The dissent asserts that the statutory definitions underlying unlawful restraint and kidnapping clearly and unambiguously distinguish the former as a general intent crime and the latter as a specific intent crime, and, as a consequence, an examination of the history and circumstances surrounding the enactment of these provisions is inappropriate. The dissent reaches the conclusion that unlawful restraint is a general intent crime by reading the term “intentionally” in General Statutes § 53a-91 (1) as applying only to that element of the offense that prohibits conduct designed “to restrict a person’s movements ... by moving him ... or by confining him . . . .” Under General Statutes § 53a-5, however, when a statute defining a criminal offense uses a term such as “intentionally” to specify a requisite mental state, that term “is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.” (Emphasis added.) Applying the directive of § 53a-5 to § 53a-91 (1), we conclude that “intentionally” also applies to the element of the offense of unlawful restraint that requires a particular result, namely, that the restriction must “interfere substantially with [a person’s] liberty . . . .” (Emphasis added.) General Statutes § 53a-91 (1). As the dissent correctly observes, “]w]hen the elements of a crime include a defendant’s intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent.” (Internal quotation marks omitted.) Because an unlawful restraint involves the restriction of another person’s movements with the intent to interfere substantially with that person’s liberty, the crime of unlawful restraint, like kidnapping, is a specific intent crime.
This interpretation is buttressed by several other considerations. First, to be an unlawful restraint, the prohibited restriction of movement must be
Second, “[cjriminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . [U]nless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Citation omitted; internal quotation marks omitted.) State v. Velasco, 253 Conn. 210, 220, 751 A.2d 800 (2000); see also State v. Skakel, supra, 276 Conn. 675 (“[s]trict construction is a means of assuring fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, concerning actions that would expose them to liability for penalties and what the penalties would be” [internal quotation marks omitted]). Although we believe that applying § 53a-5 to § 53a-91 (1) makes it clear that unlawful restraint is a specific intent crime, the rule of strict construction applicable to criminal statutes indicates that any arguable ambiguity should be resolved against the broad reading of § 53a-91 (1) that the dissent advocates.
Finally, the dissent’s conclusion also is inconsistent with this court’s analysis in State v. Foster, 202 Conn. 520, 538-40, 522 A.2d 277 (1987). In Foster, the defendant, Michael Foster, challenged the portion of the trial court’s jury instruction defining the term “restrain” for purposes of § 53a-91 (1), claiming that “the court inadequately explained that the state must prove that [Foster] had to have the conscious objective to interfere substantially with the victim’s liberty” because, according to Foster, the language that the court used had “permitted the jury to find [Foster] guilty even if the interference was nothing more than an unintended by-product of [Foster’s] intentional acts.” (Emphasis added.) Id., 539. In rejecting Foster’s argument that the court’s charge did not satisfy the requirement that a defendant act with the specific intent to effect the prohibited result, we impliedly acknowledged that a restraint is unlawful if, and only if, a defendant’s conscious objective in moving or confining the victim is to achieve that prohibited result, namely, to restrict the victim’s movements in such a manner as to interfere substantially with his or her liberty. See id., 539-40; see also State v. Youngs, 97 Conn. App. 348, 363, 904 A.2d 1240 (characterizing unlawful restraint as specific intent crime), cert. denied, 280 Conn. 930, 909 A.2d 959 (2006); State v. Phu Dinh Le, 17 Conn. App. 339, 343, 552 A.2d 448 (1989) (same); State v. Davis, 13 Conn. App. 667, 672, 539 A.2d 150 (1988) (same).
The dissent maintains that our holding “invades the purview of our state’s attorneys” and “appears to overlook that defining crimes is the responsibility of our legislature,” not this court. The dissent misapprehends our reasoning. Simply stated, we merely have noted that our prior interpretation of the kidnapping statute inevitably has led to results that we do not believe the legislature anticipated when it enacted the kidnapping statutes. Of course, we frequently, and appropriately, take this consideration into account in construing statutes. See, e.g., Gormbard v. Zurich Ins. Co., 279 Conn. 808, 829, 904 A.2d 198 (2006) (rejecting proposed construction of statute on ground that it would lead to result that legislature most likely did not intend); Bergeson v. New London, 269 Conn. 763, 782, 850 A.2d 184 (2004) (same).
A minority of jurisdictions adhere to the view that any movement or confinement of a victim is sufficient to support a kidnapping conviction. See, e.g., State v. Padilla, 106 Ariz. 230, 232, 474 P.2d 821 (1970); Ellis v. State, 211 Ga. App. 605, 608, 440 S.E.2d 235 (1994); Wilson v. State, 253 Ind. 585, 592, 255 N.E.2d 817 (1970); State v. Smith, 228 Mont. 258, 263-64, 742 P.2d 451 (1987); State v. Maeder, 229 Neb. 568, 572-73, 428 N.W.2d 180 (1988); State v. Motsko, 261 N.W.2d 860, 865-67 (N.D. 1977); Hines v. State, 75 S.W.3d 444, 447-48 (Tex. Crim. App. 2002); Harris v. State, 78 Wis. 2d 357, 366-67, 254 N.W.2d 291 (1977).
We reiterate, however, that kidnapping convictions involving miniscule restraints remain subject to challenge under the vagueness doctrine. See footnote 17 of this opinion.
The dissent asserts that our interpretation of the kidnapping statutes represents an “[attempt] to devise a means by which a jury must determine whether the act of restraining was ‘incidental’ to the commission of the other crime . . . .” In making this assertion, the dissent suggests that we have invented the approach that we have adopted in this opinion. In doing so, the dissent ignores the fact that the courts of a substantial majority of jurisdictions previously have adopted that interpretative approach. Indeed, the dissent gives no weight at all to the fact that our holding, which, as we have indicated, aptly has been characterized as representing the modem approach, reflects the view of the majority of courts that have considered the issue.
The fact that the legislature intended this result is borne out by the language of § 53a-92 (a) (2), which defines kidnapping in the first degree as an abduction coupled with an intent to engage in certain other unlawful conduct. See footnote 19 of this opinion.
We acknowledge that it is not clear from the evidence why the defendant accosted and restrained the victim. Nevertheless, on the basis of the evidence presented, a juror reasonably could conclude that the defendant’s restraint of the victim was not incidental to his assault of the victim. In other words, a juror reasonably could find that the restraint had significance independent of the assault. The facts of this case, therefore, are readily distinguishable from the facts of other cases in which the restraint imposed on the victim
As we noted previously, the defendant ultimately was not tried for assault. We nevertheless conclude that a defendant is entitled to an instruction that he cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental to the assault, regardless of whether the state elects to try the defendant for assault, because the facts reasonably would support an assault conviction. See, e.g., Alam, v. State, supra, 776 P.2d 350 (concluding restraint at issue was incidental to uncharged attempted sexual assault); People v. Rappuhn, 78 Mich. App. 348, 354, 260 N.W.2d 90 (1977) (court improperly failed to give incidental instruction with reference to uncharged offense of gross indecency); People v. Jackson, 63
The trial court instructed the jury that the information that the state’s attorney filed “does not allege a sexual assault, so I want you to be aware of that. There is no charge of sexual assault in this information, and it’s . . . incumbent upon me to so advise here, and thus I have advised you . . . .”
In support of this claim, the defendant refers to, inter alia, several comments that the state’s attorney made during jury selection that, according to the defendant, were derisive of defense counsel. The defendant concedes, however, that, with one minor exception, the challenged comments all were made in the presence of jurors who ultimately were excused. Because there is no possibility that those remarks affected the defendant’s right to a fair trial, we need not address them.
Specifically, the defendant refers to a comment that the state’s attorney allegedly made during trial to one or more persons in the courtroom audience following defense counsel’s request that the jury be excused. According to the defendant, the state’s attorney said, “[I]t’s just typical bullshit, relax.” The defendant also claims that the state’s attorney muttered the words, “Oh God,” under his breath when defense counsel sought permission to recall a witness.
The court stated: “I’m just going to say this one more time. I don’t want any more faces. I don’t want any more nonsense going on. I want everybody to conduct themselves in a professional manner here. When I make rulings and I allow people to ask questions or not ask questions, no more faces, no more nonsense. Is that understood by everybody in this courtroom?” Both counsel responded in the affirmative. The court continued: “Because if I see any more laces about my rul[ings] or what I allow or what I don’t allow, I’m going [to] take the appropriate action. And trust me when I tell you, gentlemen, you don’t [want] me to take the appropriate action if I think you’re misbehaving in a courtroom. That is something I do not tolerate.” The court subsequently reiterated: “I have warned both counsel now. If there [are] any more antics in this courtroom that I become aware of or I see, counsel [was] warned just a few moments ago about the faces that were being made with regard to rulings I was making. If that goes on again, sanctions will be issued.”
At the close of court on the day in question, the court observed that it had addressed the claims of improper conduct and encouraged counsel to
We, of course, do not condone such conduct, by prosecutors or any other attorneys, and we acknowledge that, depending on its severity, conduct of the sort alleged by the defendant could result in a new trial, disciplinary sanctions against the attorney or both. In the present case, however, the record is insufficient to support the defendant’s allegations against the state’s attorney.
The defendant also refers to certain of the state’s attorney’s comments, made in response to defense counsel’s argument concerning the kidnapping charge, that relate only to that charge. Although we do not believe that those comments were improper, we need not address them in light of our conclusion that the defendant is entitled to a new trial on the kidnapping count.
The defendant directs us to the following exchange between the state’s attorney and Dahlgren:
“Q. You can remember this person from a year—over a year ago asking for cigarettes?
“A. He asked for a cigarette that night.
“Q. He did?
“A. All the time.
“Q. And you can remember that night specifically?
“A. Yeah.
“Q. Where did you write it down?
“A. I don’t need to write it down.
“Q. You don’t need to?
“A. Uh-huh ....
“Q. You didn’t write it in a journal?
“A. No.
“Q. Palm pilot?
“A. No.
“Q. Calendar?
“A. No.
“Q. You can specifically remember a—
“A. I remember, yes, I remember.
“Q. You can specifically remember—
“A. I remember that totally—
“Q. Can I finish my question?
“A. Sure.
“Q. You can specifically remember a person at a pool party asking you for a cigarette fourteen months ago?
“A. Yes, because he always asked me for cigarettes.
* * *
“Q. And how many people asked you for cigarettes?
“A. Just him.
“Q. Just him out of 200 people? And you could specifically remember that?
“A. A lot of people don’t smoke anymore. I don’t even smoke that much.
“Q. And what time did he ask you for this cigarette?
“A. All night he was taking them.
*563 “Q. Really?
“A. Yes.
“Q. Did you ever tell Mm to go get your own pack?
“A. I did.
“Q. And how many cigarettes did he ask for?
“A. Seven or eight, and then I left them on the table, and I think he took a couple more.
“Q. And you can remember tMs from . . . fourteen months ago?
“A. Yes, because I find that to be very annoying.”
The defendant relies primarily on the following colloquy between the state’s attorney and Dahlgren:
“Q. And the [defendant’s] mother obviously told you what to say, right?
“A. Well, no.
“Q. Well, no?
“A. I’m just winging it. I mean, you’re asking me questions and I’m answering as best as I [can].
“Q. And the [defendant’s] mother didn’t tell you what to say here, right?
“A. No.
“Q. And the defense attorney didn’t tell you what to say?
“A. No.
“Q. And no one told—no one went over your—
“A. Sir, this is what happened. I’m telling you the God’s honest truth.
“Q. No one went over your testimony before—
“A. No.
“Q. Today?
“A. No.
“Q. Today is the first time you’re doing this?
“A. This is the first time.
“Q. And no one helped you with your testimony coming in here today?
“A. No.”
We note that the trial court sustained defense counsel’s objection to this question.
Indeed, the state concedes that at least some of the state’s attorney’s questions were improper.
We do note, however, that the state’s attorney objected vigorously to the defendant’s use of Dahlgren as a witness, characterizing her last minute disclosure as a “surprise” and a “complete ambush . . . The state’s attorney further complained that he did not know what Dahlgren would be testifying about and that he had been unable to prepare any questions for her. The state’s attorney therefore requested that the court afford him latitude in questioning Dahlgren, and the court agreed that some leeway was appropriate under the circumstances.
The defendant alternatively claims that, even if we conclude that the claimed prosecutorial improprieties do not rise to the level of a due process violation, we nevertheless should reverse the trial court’s judgment under our supervisory powers. “We previously have held that we may invoke our inherent supervisory authority in cases in which prosecutorial [impropriety] is not so egregious as to implicate the defendant’s . . . right to a fair trial . . . [but] when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . We have cautioned, however, that [s]uch a sanction generally is appropriate . . . only when the [prosecutor’s] conduct is so oifensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. . . . Accordingly, in cases in which prosecutorial [impropriety] does not rise to the level of a constitutional violation, we will exercise our supervisory authority to reverse an otherwise lawful conviction only when the drastic remedy of a new trial is clearly necessary to deter the alleged prosecutorial [impropriety] in the future.” (Citations omitted; internal quotation marks omitted.) State v. James G., supra, 268 Conn. 422-23. Because the improper conduct in the present case was neither egregious nor representative of a pattern of deliberate misconduct, we reject the defendant’s supervisory authority claim.
Because the defendant did not preserve this claim at trial, he seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), pursuant to which “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 clearly exists and clearly 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.” (Emphasis in original.) Id., 239-40. Although the record is adequate for our review of the defendant’s unpreserved constitutional claim, we conclude that the defendant has failed to demonstrate a constitutional violation.
The trial court instructed the jury on intent as follows: “What I’d like to do now is discuss with you a concept or definition which is critical and integral to your understanding and analysis of the elements or parts of some of the crimes charged.
“That concept or definition, if you will, is that of intent. The word intent, what does it mean and how do you determine intent?
“Intent relates to the condition of mind [of one] who commits an act, his purpose in doing the act. As defined by statute, a person acts intentionally with respect to [a] result or conduct when the conscious objective is to engage in such conduct.
“Now, what a person’s purpose or intent has been usually is to be determined by inference by you. Nobody is able to look into another’s mind and see a specific intent. The only way a jury can ordinarily determine what a person’s purpose was or intent was other than from that person’s own statements and testimony is by determining what the conduct was and what the circumstances were surrounding the conduct. And, of course, from that, you may infer the intent or purpose. To draw such an inference is not only your purpose but your proper function as members of the jury.”
The trial court instructed the jury as follows on the issue of the defendant’s alleged intoxication: “If you find the defendant was intoxicated at the time of the crimes, you may take that fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent which is the necessary element for the commission of the crimes of kidnapping and unlawful restraint.
“However, if you believe the defendant, although intoxicated, was stiE capable of possessing a specific criminal intent, then his responsibility is the same as if he were not intoxicated.”
The trial court instructed the jury on unlawful restraint in the first degree as follows: “Under the second count, the defendant is charged with unlawful restraint in the first degree. In that regard, our Penal Code provides that a person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose that other person to a substantial risk of physical injury.
“For you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: one, that the defendant restrained the victim; and two, that the restraint exposed the victim to a substantial risk of physical injury.
“Restraint, as we just discussed, means to restrict a person’s movements intentionally and unlawfully in such a manner so as to substantially interfere with her liberty by confining her without her consent.
“The state must also prove beyond a reasonable doubt that the defendant restrained the victim under circumstances that exposed the victim to a substantial risk of physical injury. Physical injury means the impairment of physical condition or pain. That’s what it means, the impairment of physical condition or pain. A substantial risk of physical injury means considerable risk of physical injury.
“So, in summary once again, the state must prove beyond a reasonable doubt that the defendant restrained the victim and that such restraint exposed the victim to a substantial risk of physical injury.”
Concurring Opinion
concurring. I agree with and join the majority opinion. I write separately and briefly to underscore two points.
First, I note that this case presents the same question that I raised in my concurrence in Kinsey v. Pacific Employers Ins. Co., 277 Conn. 398, 414-19, 891 A.2d 959 (2006), regarding the constitutionality, under the separation of powers doctrine, of General Statutes § 1-2z. In the present case, the majority finds an ambiguity in the legislature’s use of two somewhat linguistically
Second, because I joined the majority in State v. Luurtsema, 262 Conn. 179, 811 A.2d223 (2002), in which this court affirmed a kidnapping conviction that, under the new standard articulated by the majority in the
Concurring Opinion
with whom VERTEFEUILLE and SULLIVAN, Js., join, concurring in part and dissenting in part. I disagree with the new inteipretation of our kidnapping statutes that the majority announces in part I of its opinion and with its conclusion in part III that unlawful restraint is a specific intent crime.
I
The majority identifies two concerns pertaining to the crime of kidnapping. First, it is troubled by the potential for defendants to be charged with this severe crime in situations where the restraint of the victim is incidental to the commission of some underlying assault-type crime.
As a preliminary matter, and before explaining my analysis of § 53a-91 et seq., I note my agreement with the majority’s observation that our prior case law in this area has not included an in-depth discussion of the distinctions between unlawful restraint and kidnapping, specifically, of the critical difference between the mental states required to commit these crimes. That analysis is one, however, that, to the best of my knowledge, none of our prior cases required us to conduct. I agree with the majority that this case warrants further textual analysis of the statutory scheme governing these crimes. Unlike the conclusion advocated by the majority, however, the construction I advance is clearly supported by the text of the statutes and is consistent with our long line of precedent, correctly identifying that, for a defendant to be found guilty of kidnapping, the jury must find that he possessed the necessary intent.
Because I conclude that the crimes of kidnapping and unlawful restraint require the state to prove that the defendant possessed separate and distinct mental states, a brief discussion of criminal intent in statutory crimes is useful. At common law, it was axiomatic that criminal acts required “the coupling of the evil-meaning mind with the evil-doing hand . . . .” State v. Gabriel, 192 Conn. 405, 412, 473 A.2d 300 (1984); see also 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) pp.
To clarify the distinction between the crimes of unlawful restraint and kidnapping, I must begin, as with all statutory analysis, with the text of the relevant statutes read in the context of the legislative scheme. See General Statutes § l-2z. The crime of unlawful restraint in the first degree, a class D felony, is defined by General Statutes § 53a-95 (a), which provides that “[a] person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury.” (Emphasis added.) The crime of kidnapping in the second degree, a class B felony, is defined in General Statutes § 53a-94 (a), which provides that “[a]
General Statutes § 53a-91 (1) provides in relevant part: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him . . . without consent. . . .” The act necessary to commit restraint is clear. The defendant must “restrict a person’s movements” by “moving him” or “confining him . . . .” General Statutes § 53a-91 (1). Additionally, the legislature has chosen to specify a mental state. Therefore, restraint is clearly not conduct subject to strict liability. Rather, the proscribed act of restricting must be done “intentionally and unlawfully,” which clearly excludes reckless or negligent restriction of another’s movements from the purview of criminal restraint. General Statutes § 53a-91 (1). Thus, I conclude, unlike the majority, that the statute’s text requires that the defendant act with only general intent.
The term “abduct,” as defined by § 53a-91 (2), builds on the definition of “restrain.” The statute provides that “ ‘[a]bduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2). To find a defendant guilty of kidnapping, therefore, a jury must find that the state has proven beyond a reasonable doubt all of the elements of a restraint, outlined previously, plus that the defendant accomplished a restraint “with intent to prevent [the victim’s] liberation by . . . using or threatening to use physical force or intimidation.” (Emphasis added.) General Statutes § 53a-91 (2); see also Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments (1971) § 53a-91, p. 30, reprinted in 28A Conn. Gen. Stat. Ann. § 53a-91 (West 2007) p. 423 (noting abduction involves restraint plus intent to secrete victim or to threaten or use physical force); D. Borden & L. Orland, 10 Connecticut Practice Series: Connecticut Criminal Law (2d Ed. 2007) p. 181 (“an abduction requires a restraint, as defined by . . . § 53a-91 [1] plus the requisite intent defined by . . . § 53a-91 [2]” [emphasis added]). Unlike the definition of “restrain,” which requires that the defendant merely intend to do an act, that is, to restrain the victim’s
The majority’s failure to recognize this significant distinction is the product of its misreading of the intent elements of “restrain” and “abduct.” The majority describes the intent necessary to restrain a victim, as “the intent to interfere substantially with that person’s liberty . . . .” Footnote 28 of the majority opinion. This is not a precise reading of the statute and is not supported by the legislature’s choice of language. Unlike the language used to define “abduct,” the language used to define “restrain” does not require that a defendant restrict the victim’s movements with “the intent to interfere substantially with that person’s liberty”; (emphasis added) id.; but only that the defendant act “intentionally and unlawfully . . . .” General Statutes § 53a-91 (1).
Significantly, the legislature repeats this linguistic pattern of coupling “restrain” with a specific intent as indicated by the phrase “with intent to” in the statutory scheme, which further supports the conclusion that
Identification of the different intent requirements for kidnapping and unlawful restraint is important for several reasons. First, it explains the legislature’s different classification of the two crimes because kidnapping requires a greater criminal intent. Second, once kidnapping is distinguished as a specific intent crime, the potential defenses available to a defendant charged with the more serious crime of kidnapping are broader than those available to a defendant charged with unlawful restraint.
Not only does the preceding analysis clarify the distinction between unlawful restraint and kidnapping, it also confirms that the analysis we have always conducted when a defendant is charged with kidnapping and an underlying assault-type crime is proper. The question for the jury is not whether the restraint was incidental to the commission of some underlying crime but whether the state has proved beyond a reasonable doubt that the confinement or movement of the victim was accomplished “with the requisite intent” to constitute the crime of kidnapping. State v. Luurtsema, supra, 262 Conn. 201; accord State v. Amarillo, 198 Conn. 285, 305, 503 A.2d 146 (1986); see also State v. Bell, supra, 188 Conn. 416. Therefore, in circumstances like those in the present case, in which the defendant’s conduct may warrant a kidnapping charge and an additional charge, the state must prove beyond a reasonable doubt that the defendant possessed both the requisite intent to commit the underlying crime and the specific intent necessary for kidnapping to support a conviction on both charges.
It is the proper role of the jury to make such determinations. The burden is on the state to present evidence to support its contention that the defendant possessed both intents, even if he did so simultaneously. As our long history of case law dealing with this issue illustrates, there will be factual circumstances that make it especially difficult for a jury to identify whether a defendant acted with a singular purpose or multiple
When a defendant’s actions give rise to multiple criminal charges, it is especially important that the jury understand the requisite intent that the state must prove beyond a reasonable doubt for each separate crime. The majority expresses concern that our existing interpretation of the kidnapping statutes has “encouraged [prosecutors] ... to include a kidnapping charge in any case involving a sexual assault or robbery.” The majority then attempts to devise a means by which a jury must determine whether the act of restraining was “incidental” to the commission of the other crime or whether it was “independent” and “significant enough” to constitute the separate crime of kidnapping. (Internal quotation marks omitted.) This new standard ignores the statutory language that clearly requires specific intent for the commission of a kidnapping and instead focuses on the conduct or actions of the defendant. I would address the majority’s concerns differently and focus not on the defendant’s actions but, as the statute dictates, on the defendant’s intent.
The jury must consider all of the evidence and be instructed that it may infer intent from the conduct of
II
Section 53a-91, as I previously described, is clear and unambiguous on its face. The claimed ambiguity on which the majority relies to engage in its extratextual investigation is premised on the majority’s flawed reading of that statute. It is, therefore, incumbent upon me to address the errors that the majority commits in this investigation, the violence that the majority’s ultimate conclusions do to our principles of stare decisis and the problems created by its new rules regarding our kidnapping statutes.
A
As a result of its extratextual investigation into the “historical backdrop” surrounding the enactment of our revised penal code, the majority determines that the
Additionally, the majority relies on the fact that the commission noted that it “drew generally from comparable provisions of New York’s Revised Penal Law and the Model Penal Code” and on the reform of kidnapping statutes starting with the New York Court of Appeals’ decision in People v. Levy, 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965).
B
The majority’s opinion is premised not only on its flawed statutory analysis but also on ignoring the
Our case law identifies several indicators that support the conclusion that legislative inaction should be viewed as affirmation of our court’s statutory construction. The first indicator is the length of time that has passed since the court’s announcement of its interpretation and during which the legislature has remained silent. See, e.g., id., 502 (legislature’s failure to act in eighteen years since court first interpreted statute “highly significant”); Hammond v. Commissioner of Correction, 259 Conn. 855, 873-74, 792 A.2d 774 (2002) (rejecting argument regardless of its merits because court constrained by more than sixteen years of legislative silence); Rivera v. Commissioner of Correction, 254 Conn. 214, 252, 756 A.2d 1264 (2000) (six years of legislative silence indicative of legislature’s affirmation). The second factor is the number of opportunities that this court has had to reconsider its initial statutory inteipretation and to decide whether to abide by it. See Hummel v. Marten Transport, Ltd., supra, 282 Conn. 491-95 (court’s repeated affirmation of its initial interpretation followed by legislative silence persuasive); see also Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 665, 935 A.2d 1004 (2007) (“[i]n light of . . . long interpretive history, [party] has a heavy burden of demonstrating why we should not treat the legislative silence in response to our construction of [a statute] as legislative approval of that construction”). But cf. Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 198-202, 708 A.2d 1371 (1998) (inconsistent
This court was first called on to interpret § 53a-91 et seq. in 1977. See State v. Chetcuti, 173 Conn. 165, 377 A.2d 263 (1977). In Chetcuti, we concluded that “[t]he language of the statutes is clear . . . .” Id., 168. Furthermore, we expressly rejected the approach that the majority takes in the present case, namely, that when “the abduction and restraint of a victim are merely incidental to some other underlying offense, such as sexual assault, the abduction and restraint cannot form the basis for a verdict of guilty on a charge of kidnapping.” (Emphasis added.) Id., 170. We also recognized the “merger effect” that this incidental rule would create if adopted and announced that “the legislature of this state has seen fit not to merge the offense of kidnapping with sexual assault or with any other felony. Nor has the legislature imposed any time requirement for the restraint, nor any distance requirement for the asportation to constitute the crime of kidnapping.” Id. This conclusion has been consistently affirmed by this court and nearly always by a unanimous decision. See, e.g., State v. Luurtsema, supra, 262 Conn. 201-203; State
The majority acknowledges our role as the legislature’s surrogate when we first construe that body’s
C
The majority announces its new construction of the crime of kidnapping and explains that, going forward, “in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime.” This conclusion is not supported by the language of the statutes or by our prior construction expressly rejecting such a rule. In rejecting our existing jurisprudence, the majority not only steps into the shoes of the legislature but also effectively divests prosecutors of the charging discretion that they currently possess with respect to the crimes of kidnapping and unlawful restraint. In doing so, it accomplishes that which was best articulated by Justice Borden in his concurring opinion in Luurtsema: “It would be appealing to decide . . . that in a given case the degree of
“[W]e have implicitly rejected any notion that a slight degree of asportation or detention could create a jury question regarding whether kidnapping was merely ‘incidental’ to the underlying crime also committed by [a] defendant. ... It would be contrary to the legislative scheme for us to reenter that fray . . . and would amount to micromanaging what is essentially a charging decision by the state . . . .” (Citations omitted; emphasis added.) State v. Luurtsema, supra, 262 Conn. 204-205 (Borden, J., concurring).
I begin with the majority’s intrusion on our state’s attorneys. The majority correctly acknowledges our well settled law that, “an accused may be charged with and convicted of more than one crime arising out of the same act or acts, as long as all of the elements of each crime are proven.” With today’s decision, the majority ignores the equally well settled principle that when “criminal statutes overlap, the state is entitled to choose from among them as long as its action does not discriminate against any class of defendants. . . . We have always held that prosecutors have broad discretion in determining what crime or crimes to charge in any particular situation. . . . Moreover, where the elements of two or more distinct offenses are combined in the same act, prosecution for one will not bar prosecution for the other.” (Citations omitted.) State v. Chetcuti, supra, 173 Conn. 168-69. The majority claims, in the absence of any supporting authority, that our existing interpretation of the kidnapping statute has afforded prosecutors with “unbridled discretion” and “encouraged them ... to include a kidnapping charge in any case involving a sexual assault or robbery.” I am puzzled by this statement, which encompasses a general criticism of prosecutors’ charging decisions in this
The statutory scheme does not mandate that all restraints committed with the intent necessary to abduct be prosecuted as kidnappings. I recognize, as does our case law, that there is an area of overlap between the crime of unlawful restraint in the first degree, which requires restraint of the victim “under circumstances which expose [the victim] to a substantial risk of physical injury”; General Statutes § 53a-95; and of the crime of kidnapping. It may be possible to “restrain” a person under circumstances that expose such person to a substantial risk of physical injury when that risk is created by the perpetrator’s intent to use physical force. See State v. Jordan, 64 Conn. App. 143, 148, 781 A. 2d 310 (2001) (“jury finding of actual physical injury encompasses the statutoiy requirement of mere exposure to physical injury”). As this court recognized
The majority fails to recognize that merely because there are factual circumstances that could give rise to a prosecution for kidnapping does not mean that they must. Our case law has recognized that, under certain factual circumstances, unlawful restraint in the first degree may constitute a lesser included offense of the crime of kidnapping in the first or second degree. See State v. Vass, supra, 191 Conn. 618; see also State v. Daugaard, 231 Conn. 195, 196 n.1, 647 A.2d 342 (1994), cert. denied, 513 U.S. 1099, 115 S. Ct. 770, 130 L. Ed. 2d 666 (1995). But see State v. Palmer, supra, 206 Conn. 53-54 (concluding, for purposes of double jeopardy analysis, that defendant could have committed crime of kidnapping in first degree without first having committed purportedly lesser included offense of unlawful restraint in first degree). Thus, a particular defendant charged with kidnapping may be entitled to a jury charge on unlawful restraint.
Another troubling aspect of the majority’s decision is that it appears to result in the imposition of two separate standards for determining when a kidnapping has occurred. If a defendant has committed an assault-type crime, then the majority would have the state prove that the “confinement, movement, or detention . . . was significant enough, in and of itself, to warrant independent prosecution.” (Internal quotation marks omitted.) In contrast, when a defendant abducts a victim with intent to commit an assault-type crime but cannot complete the assault-type crime, under the majority’s construction, a kidnapping conviction would be justified regardless ©f the length of confinement or degree of movement. Under this paradigm, a defendant could be convicted of kidnapping when his victim suffered less actual physical injury than in a case in which the defendant accomplished the underlying assault and the act of kidnapping was merely incidental to that assault. I cannot see how this would in any way effectuate the statute as written or the legislature’s intent to create a criminal code that is “rational, coherent, cohesive and intelligible . . . .” (Internal quotation marks omitted.)
Nevertheless, I agree with the result reached by the majority. In the present case, the trial court instructed the jury only on the general meaning of intent and omitted from its instructions on kidnapping the specific intent necessary for a conviction on that charge.
I agree with the majority’s conclusion in part II that the prosecutorial improprieties did not entitle the defendant, Scott Salamon, to a new trial.
I use “assault-type crime” to describe the category of offenses that the majority views as requiring some restraint of the victim in order to perpetrate and, thus, as having the potential to give rise to a charge of kidnapping in addition to or in lieu of a charge for the commission of the underlying crime. For example, such crimes include, but are not limited to, assault, robbery and sexual assault.
My research has not revealed extensive discussion in our case law distinguishing characteristics of strict liability, general intent and specific intent crimes. I note, however, that our case law, for example, has characterized the following crimes as general intent: (1) sexual assault in the second degree under General Statutes § 53a-71 (a) (1); e.g., State v. Sorabella, 277 Conn. 155, 169, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006); (2) risk of injury to a child under General Statutes § 53-21; e.g., id., 172-73; (3) manslaughter in the second degree under § 53a-56; see State v. Salz, 226 Conn. 20, 28 n.5, 627 A.2d 862 (1993) (distinguishing general intent crime of manslaughter in second degree, which requires that defendant act either “recklessly” or “intentionally,” from specific intent crime of murder under § 53a-54a); (4) sexual assault in the first degree under
Furthermore, many of these crimes expose a defendant convicted of them to comparable or greater punishment than that prescribed by the unlawful restraint statutes. I suggest, therefore, that we cannot look to the legislature’s choice of punishment as an indicator of whether the crime requires an element of specific intent or merely general intent but must look to the language of the statute, in accordance with State v. Bitting, supra, 162 Conn. 5, to ascertain the legislature’s intent. See General Statutes § 53a-71 (class B or C felony); General Statutes § 53-21 (class B or C felony); General Statutes § 53a-56 (class C felony); General Statutes § 53a-70 (class A or B felony).
My conclusion necessitates addressing a prior case in which this court observed, with little analysis, that the legislature’s use of the word “intentionally” in a statute renders the crime a specific intent crime pursuant to General Statutes § 53a-5. State v. Shaw, 186 Conn. 45, 53, 438 A.2d 872 (1982). I disagree with this observation in Shaw, which is inconsistent not only with the plain language of § 53a-5 but also with our precedent recognizing both general intent and specific intent crimes.
General Statutes § 53a-5 provides in relevant part: “When the commission of an offense defined in . . . title [53a], or some element of an offense, requires a particular mental state, such mental state is ordinarily designated in the statute defining the offense by use of the terms ‘intentionally’, ‘knowingly’, ‘recklessly’ or ‘criminal negligence’, or by use of terms, such as ‘with intent to defraud’ and ’knowing it to be false’, describing a specific kind of intent or knowledge. . . .” (Emphasis added.) The statute does not indicate that the use of these words defines specific intent crimes; rather, it denotes the words that the legislature is likely to use to communicate the mental state required for any particular crime. Additionally, our case law does not support the conclusion that the presence of one or more of these enumerated words or phrases indicates a specific intent crime. See, e.g., State v. Shine, 193 Conn. 632, 637-39, 479 A.2d 218 (1984) (categorizing certain statutory crimes requiring “recklessness” as general intent crimes).
I note that the statute does not further define a substantial interference. Whether the restriction of movement rises to the level of a substantial interference with the victim’s liberty is a factual question for the jury.
The majority’s reliance on the definition of “intentionally” set forth in General Statutes § 53a-3 (11) to support its conclusion that unlawful restraint is a specific intent crime is far from conclusive. That definitional provision defines both kinds of statutory intent—general and specific. State v. McColl, 74 Conn. App. 545, 575, 813 A.2d 107, cert. denied, 262 Conn. 953, 818 A.2d 782 (2003); see also State v. Austin, 244 Conn. 226, 235-37, 710 A.2d 732 (1998); State v. DeBarros, 58 Conn. App. 673, 680-84, 755 A.2d 303, cert. denied, 254 Conn. 931, 761 A.2d 756 (2000). To act with statutory “intent,” a defendant must have the conscious objective to engage in proscribed conduct or have the conscious objective to cause a particular result. The majority contorts the plain language of § 53a-91 (1) to arrive at its conclusion that the proscribed conduct is “moving or confining the victim,” and the intended result is substantial interference with the victim’s liberty. Footnote 28 of the majority opinion. As previously discussed, I disagree with this reading of § 53a-91. Rather, the proscribed conduct is the restriction of the victim’s movements, which must be accomplished through movement or confinement. Contrary to the majority’s position, the statute does not dictate that the defendant have the specific intent to interfere substantially with the victim’s liberty; it provides only that, to be a restraint, the restriction must be severe enough to so interfere.
Furthermore, the majority’s understanding of § 53a-5 and its “directive”; id.; is not consistent with our case law. We repeatedly have recognized that, “when a statute requires the state to prove that the defendant intentionally engaged in the statutorily proscribed conduct, § 53a-5 does not require us to presume that the statute requires the state to prove that the defendant had knowledge of a circumstance described in the statute.” (Emphasis in original.) State v. Higgins, 265 Conn. 35, 45, 826 A.2d 1126 (2003); see State v. Denby, 235 Conn. 477, 482-83, 668 A.2d 682 (1995). The majority criticizes my reading of § 53a-91 by noting that I would not apply the intent requirement to the fact that the restraint must be accomplished without the victim’s consent for it to be unlawful. The majority fails to recognize, however, that lack of consent is a factual circumstance that must exist in order to render the proscribed conduct unlawful. This court has rejected an argument virtually identical to that now advanced by the majority that the defendant must have knowledge of the victim’s lack of consent with respect to § 53a-70, sexual assault in the first degree, which is a general intent crime. State v. Smith, 210 Conn. 132, 136-40, 554 A.2d 713 (1989). I think it also is relevant to the majority’s concerns to note that a defendant charged with unlawful restraint certainly may raise the defense of consent. As we recognized in Smith, “[a] finding that a complainant had consented would implicitly negate a claim” of unlawful restraint. Id., 140. Furthermore, the statutory scheme defining unlawful restraint and kidnapping does not make consent an affir
My reading of the unlawful restraint statutes also is consistent with this court’s interpretation of § 53-21 defining the general intent crime of risk of injury to a child. General Statutes § 53-21 (a) provides in relevant part that “[a]ny person who (1) wilfully or unlawfully causes or permits any child ... 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 . . . shall be guilty of a class C felony . . . .” (Emphasis added.) The language that the legislature employed in this statute to define the mental state required is “wilfully or unlawfully . . . .” General Statutes § 53-21 (a). Unlike “intentionally,” “wilfully” is not a menial state referenced in § 53a-5 or otherwise defined by the definitional section of our criminal statutes. This court has concluded, however, that the legislature intends to require that the defendant’s actions be “intentional” when it proscribes “wilful” conduct. State v. Payne, 240 Conn. 766, 774, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 849 A.2d 760 (2004); see also State v. Sorabella, 277 Conn. 155, 173, 891 A.2d 897, cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). We have held, however, with respect to the risk of injury statute, that the requirement that the conduct be intentional does not apply to the effect of endangering the health or morals of a child. State v. Sorabella, supra, 173; see also Allstate Ins. Co. v. Berube, 84 Conn. App. 464, 470-71, 854 A.2d 53, cert. denied, 271 Conn. 929, 859 A.2d 583 (2004). Tobe consistent, the majority’s position that § 53a-5 mandates that “intentionally,” as used in § 53a-91 (1), applies to the effect “in such a manner as to interfere substantially with [the victim’s] liberty”; General Statutes § 53a-91 (1); would also mandate that “wilfully,” as used in § 53-21, apply to the effect “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 . . . .” General Statutes § 53-21 (a) (1). This can only lead to the conclusion that the majority will apply this logic in the future to the risk of injury statute and thus find it to be a specific intent crime. Of course, in order to do so, the majority again will have to overrule a long of line of cases that has held otherwise and has not met with legislative disapproval.
Finally, the majority’s view of § 53a-5 seems inconsistent with the Appellate Court’s conclusion in State v. Youngs, 97 Conn. App. 348, 365, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006), that the intent requirement for unlawful restraint in the first degree does not apply to the element of that offense that requires the restraint to be perpetrated under circumstances that expose the victim to a substantial risk of physical injury.
The majority also asserts that my conclusion that unlawful restraint is a general intent crime is “inconsistent” with this court’s decision in State v. Foster, 202 Conn. 520, 522 A.2d 277 (1987), because, in that case, “we impliedly acknowledged that a restraint is unlawful if, and only if, a defendant’s conscious objective in moving or confining the victim is to achieve that prohibited result, namely, to restrict the victim’s movements in such a manner as to interfere substantially with his or her liberty.” Footnote 28 of the majority opinion. I do not agree with the majority. In Foster, we did not analyze the language of § 53a-91 (1) or define the intent requirement for “restrain.” We did, however, reject the defendant’s contention that the trial court’s instructions on the definition of “restrain” improperly led the jury to believe that the state did not need to prove that the defendant intended to interfere substantially with the victim’s liberty. State v. Foster, supra, 539. The court did not affirmatively adopt this analysis of the requisite statutory intent. Instead, the court cited the trial court’s instructions, which simply set forth the precise statutory definition of “restrain,” and noted that, “[w]hen the charge is reviewed in its entirety, it is obvious that the [trial] court had more than adequately explained the meaning of restraint . . . .” (Internal quotation marks omitted.) Id.
In support of its discussion of Foster, the majority cites three Appellate Court cases. See footnote 28 of the majority opinion. First, I note that these cases are not binding on this court. Furthermore, none of them engaged in a textual comparison of the intent requirements for unlawful restraint and kidnapping. In the first of these cases, State v. Davis, 13 Conn. App. 667, 539 A.2d 150 (1988), the Appellate Court stated, with no analysis at all, that unlawful restraint requires specific intent. Id., 672. In State v. Phu Dinh Le, 17 Conn. App. 339, 552 A.2d 448 (1989), the court relied on the flawed conclusion in State v. Shaw, 186 Conn. 45, 53, 438 A.2d 872 (1982); see footnote 4 of this opinion; and on the summary statement in Davis. See State v. Phu Dinh Le, supra, 343. Finally, in State v. Youngs, 97 Conn. App. 348, 904 A.2d 1240, cert. denied, 280 Conn. 930, 909 A.2d 959 (2006), the court also relied on Davis and offered no more meaningful analysis of its conclusion that unlawful restraint is a specific intent crime. See id., 363-65. Moreover, although the court in Youngs categorized unlawful restraint as a specific intent crime, that court stated that the specific intent required is the intent to restrain the victim, and not, as the majority suggests, the intent to interfere substantially with the victim’s liberty. See id.
This court has recognized that the defense of voluntary intoxication is available to negate the mental state required to commit specific intent crimes but not available to negate the mental state required for general intent
For example, the trial court should instruct that “[a]s defined by our statute, a person acts intentionally with respect to conduct when his conscious objective is to engage in such conduct.
“What a person’s purpose or intention has been usually is a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain purpose or intention. The only way in which a jury can ordinarily determine what a person’s purpose or intention was at any given time, aside from that person’s own statements, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and from that, infer what his purpose or intention was.
“This inference is not a necessary one; that is, that you are not required to infer intent from the accused’s conduct, but it is an inference that you may draw if you find that it is reasonable and logical and in accordance with [the court’s] instructions on circumstantial evidence. . . .
“[T]he burden of proving intent beyond a reasonable doubt is on the state.” (Internal quotation marks omitted.) State v. Respass, 256 Conn. 164, 183-84 n.16, 770 A.2d 471, cert. denied, 534 U.S. 1002, 122 S. Ct. 478, 151 L. Ed. 2d 392 (2001).
Notably, this court repeatedly and expressly has rejected arguments based on the reasoning in Levy as early as its initial construction of § 53a-91 et seq. See, e.g., State v. Amarillo, supra, 198 Conn. 304 & n.12; State v. Chetcuti, 173 Conn. 165, 170-71, 377 A.2d 263 (1977).
New York Penal Law § 135.00 (1) provides: “ ‘Restrain’ means to restrict a person’s movements intentionally and unlawfully in such manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent and with knowledge that the restriction is unlawful. A person is so moved or confined ‘without consent’ when such is accomplished by (a) physicalforce, intimidation or deception, or (b) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.” (Emphasis added.) N.Y. Penal Law § 135.00 (1) (McKinney 2004).
New York Penal Law § 135.00 (2) provides: “ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (a) secreting or holding him in a place where he is not likely to be found, or (b) using or threatening to use deadly physical force.” (Emphasis added.) N.Y. Penal Law § 135.00 (2) (McKinney 2004).
New York Penal Law § 135.25 provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and when:
“1. His intent is to compel a third person to pay or deliver money or property as ransom, or to engage in other particular conduct, or to refrain from engaging in particular conduct; or
“2. He restrains the person abducted for a period of more than twelve hours with intent to:
“(a) Inflict physical injury upon him or violate or abuse him sexually; or
“(b) Accomplish or advance the commission of a felony; or
“(c) Terrorize him or a third person; or
“(d) Interfere with the performance of a governmental or political function (Emphasis added.) N.Y. Penal Law § 135.25 (McKinney 2004).
There is evidence that the legislature is aware of this court’s longstanding statutory construction and has declined opportunities to amend the relevant portions of the statutes since 1977. For example, although the majority quickly dismisses a 1993 amendment to § 53a-94, our case law suggests that the legislature’s action with respect to this provision and the failure to alter the court’s previous construction is significant evidence of affirmation. See Hummel v. Marten Transport, Ltd., supra, 282 Conn. 495; Rivera v. Commissioner of Correction, supra, 254 Conn. 252. Additionally, following our decision in Luurtsema, the judiciary committee considered three bills addressing the elements of the charge of kidnapping. An Act Concerning Asportation in Kidnapping Cases, Raised Bill No. 1284, 2005 Sess.; An Act Concerning Asportation in Kidnapping Cases, Senate Bill No. 530,2005 Sess.; An Act Concerning Asportation in Kidnapping Cases, Raised Bill No. 1159, 2003 Sess. None received favorable committee action.
In spite of these substantial persuasions, the majority observes, with respect to the legislative acquiescence doctrine, that this court also has “recognized that legislative inaction [following our interpretation of a statute] is not necessarily legislative affirmation . . . .” (Internal quotation marks omitted.) I note, however, that none of the cases on which the majority relies supports deviation, in this case, from the weight of our case law, which accepts the legislature’s silence as assent. “Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of astatute.” (Internal quotation marks omitted.) Rivera v. Commissioner of Correction, supra,
For example, the majority relies on State v. Colon, 257 Conn. 587, 778 A.2d 875 (2001), for the proposition that “legislative inaction is not always the best of guides to legislative intent.” (Internal quotation marks omitted.) The court in Colon cited a single case in support of this observation, namely, Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 379, 593 A.2d 498 (1991). See State v. Colon, supra, 598 n.14. Streitweiser is far from a classic example, however, of this court’s consideration of whether legislative inaction amounts to affirmation. In Streitweiser, the court was faced with two inconsistent lines of cases, in response to which the court observed that, “[bjecause these diverse holdings look in different directions, the legislature cannot logically have acquiesced in them ah.” Streitweiser v. Middlesex Mutual Assurance Co., supra, 379. No such inconsistency exists in the present case. Notwithstanding this important distinction in Streitweiser, Colon itself is distinguishable. In that case, we did not announce a reconstruction of § 53a-48 or overrule the case in which it was first construed, namely, State v. Grullon, 212 Conn. 195, 562 A.2d 481 (1989). See State v. Colon, supra, 598-600. Rather, the court overruled a subsequent case, State v. Robinson, 213 Conn. 243, 567 A.2d 1173 (1989), not because its interpretation of § 53a-48 as a bilateral conspiracy statute was clearly erroneous or resulted in injustice but because it concluded that its reliance on Grullon in Robinson was improper. See State v. Colon, supra, 598-601.
The other cases on which the majority relies for its observation that legislative silence is not always affirmation are likewise distinguishable from the reconsideration of the statutory scheme at issue in the present case. See, e.g., State v. Skakel, 276 Conn. 633, 692, 888 A.2d 985 (broad pronouncement of common-law rule beyond mere statutory construction “tempers . . . traditional reluctance to upset the settled interpretation of a particular statute”), cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006); State v. Miranda, 274 Conn. 727, 734, 878 A.2d 1118 (2005) (court corrected “clearly wrong” statutory interpretation only three years old); Waterbury v. Washington, 260 Conn. 506, 539-45, 800 A.2d 1102 (2002) (first interpretation of specific statutory provision and reexamination of earlier constructions due to court’s failure to have considered entirety of statutory scheme); Ferrigno v. Cromwell Development Associates, supra, 244 Conn. 198-202 (correction of court’s inconsistent interpretations of same statute over time).
First, the majority asserts that “[t]he arguments for adherence to precedent are least compelling . . . when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants . . . .” (Internal quotation marks omitted.) Majority opinion, p. 523, quoting Craig v. Driscoll, 262 Conn. 312, 330, 813 A.2d 1003 (2003). None of our prior cases that cite this quote by former United States Supreme Court Justice Beryamin N. Cardozo; see B. Cardozo, The Nature of the Judicial Process (1921) p. 151; discussed overruling the existing construction of a criminal statute. See Craig v. Driscoll, supra, 330 (deciding whether to recognize common-law action against purveyor that negligently served alcohol to adult patron who, because of intoxication, injured third person, and noting fact that parties were unlikely to consider question of what law would govern their conduct if it were to result in injury); George v. Ericson, 250 Conn. 312, 317-18, 736 A.2d 889 (1999) (overruling common-law rule of evidence excluding testimony of nontreating physicians and replacing it with standard governing testimony of expert witnesses in general); Conway v. Wilton, 238 Conn. 653, 661, 680 A.2d 242 (1996) (reinterpretation of statute governing tort liability); O’Connor v. O’Connor, 201 Conn. 632, 644, 648, 519 A.2d 13 (1986) (rejection of lex loci doctrine in tort actions).
Furthermore, when Justice Cardozo’s statement is viewed in the larger context of his chapter entitled, “Adherence to Precedent,” it does not support the majority’s suggestion that criminal actors are like those who engage in tortious conduct and rarely give thought to what law will govern their criminal behavior. Instead, Justice Cardozo was observing the possibility that, over time, “the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly . . . .” B. Cardozo, supra, p. 151. I fail to see the relevance of this observation to the majority’s decision.
Second, the majority suggests that “the issue presented by the defendant’s claim is not one that is likely to have reached the top of the legislative agenda . ...” I note that the majority cites no authority in support of its claims that the legislature is unlikely to act “because the issue directly implicates only a relatively narrow category of criminal cases ... it is uncertain whether the position that the defendant advocates would attract interested sponsors with access to the legislature . . . [and] it ... is unclear whether the issue is sufficiently important to gain their full support.” I can only garner from these observations that the majority has apparently concluded that the legislature would require the influence of lobbyists and the potential for political advantage in order to rectify an erroneous statutory construction by this court. Additionally, I am puzzled by the majority's assumption that the application of our kidnapping statutes is of little interest to the legislature in light of the committee activity addressing it in the past few years. See footnote 14 of this opinion.
Third, the majority concludes that “this court never has undertaken an extensive analysis of whether our kidnapping statutes warrant the broad
Fourth, the majority claims that a “reason to reconsider our prior holdings construing the kidnapping statutes to encompass virtually all sexual assaults and robberies is that all of our prior cases have relied on a literal application of the language of our kidnapping statutes.” Although the majority concedes that this court “frequently adhere[sj to the literal language of a statute,” it proceeds to rely on four cases to exemplify situations in which we eschewed the literal language of a statute because it led to bizarre or unworkable results. I note that none of the four cases to which the majority refers implicated stare decisis or our legislative acquiescence doctrine. Moreover, the cases involved circumstances that are distinguishable from the application of our kidnapping statutes in the present case. See Clark v. Commissioner of Correction, 281 Conn. 380, 390-91, 401, 917 A.2d 1 (2007) (rejecting literal construction because statutory scheme conflicted on its face); Connelly v. Commissioner of Correction, 258 Conn. 394, 404-405, 780 A.2d 903 (2001) (in construing statute for first time, court rejected literal reading that would impliedly overrule existing case law that legislature did not express intent to overrule); Levey Miller Maretz v. 595 Corporate Circle, 258 Conn. 121, 132-33, 780 A.2d 43 (2001) (rejecting literal construction of statute when legislature expressly communicated that it did not intend provision to be narrowly construed); State v. Brown, 242 Conn. 389, 402-406, 699 A.2d 943 (1997) (literal construction of statute would have been practically unworkable as it would have required trial to commence regardless of whether defendant’s attorney was available).
Fifth, the majority suggests that “the legislative acquiescence doctrine requires actual acquiescence on the part of the legislature”; (internal quotation marks omitted); and cites to a footnote in Berkley v. Gavin, 253 Conn. 761, 756 A.2d 248 (2000), for this proposition. See id., 776-77 n.11. I note, however, the lack of any authority for this general proposition announced in Berkley. Nevertheless, as I already have discussed, with respect to the kidnapping statutes, there has been actual acquiescence. In 1993, subsection (b) of the same statute under which the defendant in the present case was charged was amended and, yet, no change was made with respect to a minimum requirement for the length of confinement or asportation. See Public Acts 1993, No. 93-148, § 1. It is significant that the legislature amended the statute sixteen years after our interpretation was first announced and after consistent rulings by this court, and chose not to amend the pertinent definitional sections. See footnote 14 of this opinion. If this is not evidence of acquiescence, I am hard pressed to know where else to look. The majority appears to suggest that, because the legislature did not correct our construction of the kidnapping statutes, there was no acquiescence.
Sixth, the majority observes that, “since 1977, when this court first rejected a claim that a kidnapping conviction could not be based on conduct involving a restraint that is merely incidental to the commission of another crime, the courts of many other states have reached a contrary conclusion in
To be so entitled, the defendant would have to satisfy the four-pronged test laid out by this court in State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). “A defendant is entitled to an instruction on a lesser offense if, and only if ... (1) an appropriate instruction is requested by either the
“The [defendant in Vass could not prevail on his claim] that he was entitled to a charge of unlawful restraint .... Although its definition, restraint of another person, does fall within the ambit of the crime of kidnapping, the defendant . . . failed to satisfy the fourth prong of the Whistnant test. He . . . failed to demonstrate that the crucial element of intent, which differentiates kidnapping from unlawful restraint in the second degree, was sufficiently in dispute to justify an instruction on the lesser charge. The defendant offered no evidence . . . that would tend to suggest that whoever perpetrated the crime restrained the victim without the requisite intent to prevent her liberation by the use of force, threat of force or intimidation.” (Citation omitted.) Id., 618.
The majority describes our prior construction of the kidnapping statutes as “overly broad” and proposes that juries now must determine whether a defendant’s restraint of the victim is incidental to the commission of a
The trial court instructed the jury in relevant part: “Abduct means to restrain a person by the use of physical force or the threatened use of physical force or by intimidation.”
Under the definitions set forth in § 53a-91, one may accomplish a restraint through many means, including the use of force. See General Statutes § 53a-91 (1). For example, a defendant may commit an unlawful restraint without ever possessing an intent to prevent the victim’s liberation by using or threatening to use physical force. Such restraint could occur by confining the victim in a room using locks or other barriers, refusing to provide information on the location of an exit or, as the statute notes, by deception. A person may accomplish an abduction, however, only if he restrains the victim with the specific intent to prevent his liberation “by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2).
The trial court instructed the jury in relevant part: “Intent relates to the condition of mind [of one] who commits an act, his purpose in doing the act. As defined by statute, a person acts intentionally with respect to [a] result or conduct when the conscious objective is to engage in such conduct. . . .
“Nobody is able to look into another’s mind and see a specific intent. The only way a jury can ordinarily determine what a person’s purpose was or intent was other than from that person’s own statements and testimony is by determining what the conduct was and what the circumstances were surrounding the conduct. . . .”
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