State v. DeJesus
State v. DeJesus
Concurring Opinion
concurring. I agree with, and join, part I of the majority opinion concerning the application of the principles articulated in State v. Salamon, 287 Conn. 509, 942 A.2d 1092 (2008), to the present case. I also agree with that portion of part II of the majority opinion dealing with the standard of admissibility of uncharged sexual misconduct evidence in sexual assault cases. Although I agree with the threshold determination of the majority in part II of its opinion that this court retains the authority to change or modify the law of evidence as embodied in the Connecticut Code of Evidence (code), I reach that result by a somewhat different route than the majority. I write separately primarily for that reason.
Before addressing part II of the majority opinion, however, I note briefly that, although I join the majority in concluding that the defendant in State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), is not entitled to a judgment of acquittal, I also believe it is extremely unlikely that, because of the factual scenario presented by that case, the state will be able to adduce evidence sufficient to support a conviction of kidnapping in light of the factors that this court recently announced in State v. Salamon, supra, 287 Conn. 548. Nevertheless, as the majority has explained, the defendant in Sanseverino was entitled to a reversal of his conviction not because of evidentiary insufficiency but, rather, because he did not receive an instruction of the kind mandated by Salamon.
II
In concluding that this court continues to have the ultimate responsibility for determining the law of evidence through common-law adjudication, despite the promulgation of the code by the judges of the Superior Court, the majority concludes that the language of the code is ambiguous with respect to whether the judges of the Superior Court intended to oust this court from
Although I agree with the majority’s conclusion regarding the overall scope of the code, I am not persuaded that the terms “interpretation” and “judicial rule making,” as used in § 1-2 (a) of the code, are “ambigu
I read the code in this manner because I do not believe that the judges of the Superior Court have the power to supplant the Supreme Court as the judicial body ultimately responsible for determining the law of evidence. The Supreme Court has exercised its common-law authority in this realm since the court was created centuries ago, prior to the adoption of the constitution of 1818. Because the Supreme Court is a constitutional court, there can be no doubt that its common-law
Such a conclusion also would be inconsistent with this court’s inherent supervisory authority over the administration of justice.
I do not believe that the judges of the Superior Court have the power to trump this court’s inherent supervisory authority over the administration of justice in the trial courts, the exercise of which generally is reserved for matters of the greatest seriousness that implicate the fairness and integrity of the judicial system as a whole. See footnote 5 of this opinion. Indeed, if the judges of the Superior Court have that power, then this court does not truly possess supervisory authority over the trial courts at all, because those courts would be free to override this court’s assertion of its authority. I therefore am unwilling to conclude that this court
Supervisory authority over the administration of justice is inherent in appellate courts generally, including, of course, the United States Supreme Court. Thus, as that court stated in McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943), “[t]he principles governing the admissibility of evidence in federal criminal trials have not been restricted ... to those derived solely from the [United States] [constitution. In the exercise of its supervisory authority over the administration of criminal justice in the federal courts . . . th[e] [United States Supreme] Court has, from the very beginning of its history, formulated rules of evidence to be applied in federal criminal prosecutions. . . . And in formulating such rules of evidence for federal criminal trials the [c]ourt has been guided by considerations of justice not limited to the strict canons of evidentiary relevance.” (Citations omitted.) Id., 341. The United States Supreme Court recently reiterated this principle, stating: “The law ... is clear. Th[e] [United States Supreme] Court has supervisory authority over the federal courts, and [it] may use that authority to prescribe rules of evidence and procedure that are binding in those tribunals.”
It may be argued that the judges of the Superior Court have asserted a similar authority by virtue of
It bears emphasis that the jury instruction on kidnapping that the trial court gave in Sanseverino was perfectly correct under then binding precedent of this court. We concluded that the defendant in Sanseverino was entitled to a reversal of his kidnapping conviction only because of this court’s interpretation of the kidnapping statute in Salamon, which this court decided on the same day that it decided Sanseverino.
The dissenting justice asserts that it is unfair to the defendant in Sanseverino and the defendant in the present case to allow the state the opportunity to retry them. I do not share the dissenting justice’s view. First, the defendant in Sanseverino and the defendant in the present case received the benefit of our holding in Salamon even though neither defendant raised the claim concerning the kidnapping statute that we addressed in Salamon. They benefit from our holding in Salamon only because their appeals happened to be pending when this court decided Salamon. Second, and more importantly» by permitting the state to determine whether to seek a retrial in Sanseverino and in the present case, we do not place the defendants in those cases in unwarranted jeopardy. Rather, as I have indicated, we must presume that if, in light of our decision in Salamon, the state does not believe that it has sufficient evidence to retry one or both of those defendants for kidnapping, then the state will not do so. Under the circumstances, however, it simply is not our responsibility to make that decision for the state.
I also strongly disagree with the dissenting justice’s criticism of our decision on stare decisis grounds. Sanseverino was decided less than two months ago, and, consequently, there cannot have been any material reliance on it. Cf., e.g., Conway v. Wilton, 238 Conn. 653, 658, 680 A.2d 242 (1996) (explaining that doctrine of stare decisis is justified because, inter alia, it “allows for predictability in the ordering of conduct” by “givjing] stability and continuity to our case law”). Indeed, the dissenting justice acknowledges, as she must, that stare decisis is hardly applicable when, as in Sanseverino, a motion for reconsideration of our decision in that case is pending. Moreover, it is far better for this court to acknowledge and to correct an error promptly than to refuse to do so based on rigid adherence to flawed precedent. See id., 659. Thus, to the extent that this court’s decision in the present case serves to clarify that our decision in Salamon rejecting the defendant’s claim of entitlement to a judgment of acquittal ultimately was not fact bound, despite certain language in Salamon that might suggest a contrary conclusion; see State v. Salamon, supra, 287 Conn. 548-50; that clarification is entirely appropriate.
In the majority’s view, the word “interpretation,” as used in § 1-2 (a) of the code, is ambiguous because the judges of the Superior Court reasonably may have intended it “to be construed broadly as descriptive of the common-law adjudicative function pursuant to which evidentiary law historically has grown and developed” and not merely limited to the construction or explanation of the code. The majority also concludes that the term “judicial rule making” is ambiguous because such rule making reasonably may be construed to mean case-by-case, common-law adjudication rather than the promulgation of court rules by the judges of the Superior Court acting as a group.
I likewise do not believe that the judges of the Superior Court intended to limit the authority of the Appellate Court in regard to that court’s common-law adjudicative function vis-á-vis the law of evidence. I refer only to the Supreme Court, however, for ease of reference, and because the common-law role of the Supreme Court with respect to the rules of evidence dates back more than 200 years; by contrast, the similar role of the Appellate Court dates back only to its creation in 1983.
As this court repeatedly has stated, both the Supreme Court and the Appellate Court “possess an inherent supervisory authority over the administration of justice. . . . Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole. . . . [The Supreme Court] ordinarily invoke[s] [its] supervisory powers to enunciate a rule that is not constitutionally required but that [it believes] is preferable as a matter of policy.” (Citation omitted; internal quotation marks omitted.) State v. Ledbetter, 275 Conn. 534, 577-78, 881 A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct. 1798, 164 L. Ed. 2d 537 (2006).
Indeed, I have found no federal or sister state precedent that supports such a division of authority as between a high court and a subordinate court.
Although the authority of the United States Supreme Court in this regard is superior to that of the lower federal courts, “Congress retains the ultimate authority to modify or set aside any judicially created rules of evidence and procedure that are not required by the [United States] [constitution.” Dickerson v. United States, 530 U.S. 428, 437, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000). This court has observed that, in this state, “the rules of evidence . . . have never . . . been regarded as exclusively within the judicial domain. Over a period of years, the legislature has enacted various statutes modifying the rules of evidence prevailing at common law .... These
General Statutes § 51-14 (a), which provides in relevant part that the judges of the Supreme Court, the Appellate Court and the Superior Court “shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure in judicial proceedings in courts in which they have the constitutional authority to make rules,” is not to the contrary. Section 51-14 (a) codifies the inherent authority of the various courts; see, e.g., In re Dattilo, 136 Conn. 488, 493, 72 A.2d 50 (1950) (“[e]ven lacking statutory authority, it would be well within the inherent power of the judges of the Superior Court to make rules which would bring about an orderly, expeditious and just determination of the issues”); and says nothing about the relative authority of one such court vis-a-vis another.
The dissenting justice cites to several cases in which this court has indicated that it lacks authority to change or modify rules of practice adopted by the judges of the Superior Court. See Oakley v. Commission on Human Rights & Opportunities, 237 Conn. 28, 30, 675 A.2d 851 (1996) (“[djespite [the] legitimacy [of the concern raised by the certified question], the concern is one that cannot be addressed through the process of appellate review but requires a change in the appropriate provisions either of the General Statutes or of the Practice Book”); State v. Johnson, 228 Conn. 59, 61, 634 A.2d 293 (1993) (“[although a clarifying amendment [to] the rules of practice to address the problem illuminated . . . might well be desirable, this court does not sit as the [r]ules [c]ommittee of the Superior Court”); State v. Jennings, 216 Conn. 647, 665 n.11, 583 A.2d 915 (1990) (“We do not sit to decide the utility or need for written instructions in the Connecticut courts. To the extent that the defendant seeks such a decision, his request is more properly directed to the [r]ules [cjommittee of the Superior Court.”); Kupstis v. Michaud, 215 Conn. 435, 437, 576 A.2d 152 (1990) (“[t]he problem illuminated by this litigation calls for a change in the rules of practice that this court cannot enact”). I acknowledge that language in these cases would appear to support the contention that this court lacks the ultimate authority to modify a rule of practice adopted by the judges of the Superior Court. Upon closer analysis, however, these cases are not persuasive authority for that proposition. Three of the four decisions, Oakley, Johnson and Kupstis, were summary, per curiam opinions consisting of one to two pages each, and none contains any analysis of the relative authority of this court and the Superior Court concerning the adoption of the rules of practice. At most, these decisions reflect the court’s understandable reluctance to override rules of practice adopted by the judges of the Superior Court. In Jennings, the fourth case, this court rejected the claim of the defendant, Gerald Jennings, that the trial court had violated his constitutional rights in declining to provide the jury with a written copy of the court’s jury instructions. See State v. Jennings, supra, 664-65. In response to Jennings’ assertion that other state and federal courts had utilized written jury instructions and that the practice had received favorable review and comment, we observed that his policy argument was “more properly directed” to the rules committee of the Superior Court. Id., 665 n.11. Significantly, Jennings did not request that this court invoke its supervisory authority. Although I express no view on the merits of written jury instructions, I have no doubt that this court has the authority, under its supervisory power, to require that written instructions be provided to the jury. Jennings, therefore, is inapposite.
Thus, contrary to the assertion of the dissenting justice, the United States Supreme Court expressly has held that it possesses inherent power to invalidate an otherwise lawful rule of procedure adopted by the judges of the United States District Court under their inherent rule-maldng authority. See Frazier v. Heebe, supra, 482 U.S. 645.
As Justice Zarella underscores in his concurrence, the history of our rules of practice and the history of our law of evidence are not identical. I do not view the former, however, including the 1807 legislative delegation of rule-maldng authority to our courts as they were constituted prior to 1818; see General Statutes (1808 Rev.) tit. 42, c. 15, § 2 (1808 statute); as demonstrating that the Supreme Court is subordinate to the Superior Court with respect to that authority. To the contrary, from 1808 until the adoption of the 1818 constitution, the judges of the Supreme Court of Errors and the judges of the Superior Court were one and the same, and, therefore, distinctions between them regarding their relative authority over the administration of justice were of little practical significance. More importantly,
The dissenting justice states that, “[s]adly, the result in this case may motivate the legislature to follow through on previously contemplated action to bring the rules of evidence under the supervision of that body . . . .” The dissenting justice provides no explanation for this concern, and I know of none. In accordance with the preference of the legislature, the judicial branch itself has promulgated an evidence code that is subject to regular review and revision. See Foreword to Connecticut Code of Evidence (2000) p. iii. The legislature having deferred to the judicial branch with respect to this endeavor, I cannot imagine why the legislature now would see fit to reverse course. In any event, the decision of this court in the present case
Concurring Opinion
with whom SULLIVAN, J., joins, concurring. I concur in the result that the majority reaches in part I of its opinion that the defendant is entitled to a new trial on the charge of kidnapping in the first degree on the basis of an improper jury instruction. See State v. Sanseverino, 287 Conn. 608, 649-50, 949 A.2d 1156
First, I maintain my position that the direction that this court has taken recently with respect to our law of kidnapping is not supported by the clear statutory language defining that crime and other restraint-based offenses. See State v. Salamon, 287 Conn. 509, 576, 949 A.2d 1092 (2008) (Zarella, J., concurring in part and dissenting in part). Therefore, I would remand the case for a new trial so that the jury may be instructed properly on the crime of kidnapping in accordance with the conclusions articulated in my concurring and dissenting opinion in Salamon. I remain optimistic that the legislature will take action to resolve the numerous questions created by this court’s recent kidnapping jurisprudence.
Second, with respect to the analysis in part II of the majority opinion, which resolves the question that we certified as to whether this court or any court has authority to change or modify a rule of evidence in the Connecticut Code of Evidence (code), I see no reason to interpret the language of the code to resolve this particular issue. Rather, I conclude that the authority of this court to review evidentiary rulings by the Superior Court existed at common law and was incorporated into the 1818 constitution. Furthermore, I suggest that the majority’s resolution of this question places too much emphasis on determining the intent of the Superior Court judges, thereby indicating that possession of such an intent could be dispositive of our inquiry. This emphasis, coupled with the majority’s repeated reference to this court’s “inherent” and “constitutional” authority, creates unnecessary ambiguity as to the
The majority devotes significant attention to determining whether the language expressing the purpose of the code is clear and unambiguous and to the question of “whether the judges of the Superior Court intended to abrogate the authority of the appellate courts to develop and change the law of evidence via case-by-case common-law adjudication . . . .” (Emphasis added.) After recounting the history of the adoption of the code and its purpose, the majority observes that that “history does not support the conclusion . . . that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication.” (Emphasis in original.) I suggest that this analysis unnecessarily clouds a simple fact. Regardless of the intent of the Superior Court judges, I conclude, like Justice Palmer, that the judges of the Superior Court do not possess authority under our constitution to divest this court of its inherent authority to change and develop the law of evidence. See p. 485 of Justice Palmer’s concurring opinion (“the ultimate authority to determine the law of evidence has resided in this court since its inception, and no persuasive reason has been proffered to support the contention that the judges of the Superior Court have the power to assert that authority for themselves”).
It is unnecessary for me to repeat the historical underpinnings of my conclusion because they are well documented in the majority opinion. The majority accurately observes that, “[u]nder the common law of this state prior to 1818, as under the common law of England, the ultimate authority over the rules and standards governing the admissibility of evidence rested with the highest court of the state.” After accurately noting that “this court had final and binding authority over the
Additionally, I depart from the views of Justices Katz and Palmer that the code properly can be analogized to our rules of practice. Justice Palmer, in his concurring opinion, suggests that he would conclude that this court has ultimate authority over the rules of practice as well as evidence law by virtue of its inherent supervisory powers. See p. 487 of Justice Palmer’s concurring opinion (likening code of evidence to rules of practice and asserting that this court is final arbiter of disputes over provisions in code and rules of practice). Likewise, Justice Katz, in her dissenting opinion, states that there is “no principled rationale” for treating the rules of practice and the code of evidence differently. Further
My research, as well as that conducted by the majority, reveals that the genesis of the rules of practice differs from the development of our evidentiary law over time and that the authority of the Superior Court with respect to each is separate and distinct. The majority correctly observes that, “[u]nlike evidentiary law, over which this court has exercised final and binding adjudicative authority since its inception more than 200 years ago . . . prior to 1818, the judges of the Superior Court had the authority to adopt rules governing pleading, practice and procedure . . . .”
Significantly, in 1807, the General Assembly passed a law that was codified in 1808 and that provided: “And be it further enacted, That the judges of the superior court, when constituting a supreme court of errors, or met for any purpose, be, and they hereby are empowered, to institute such rules of practice for the regulation of the said court of errors, and of the superior court in the respective circuits, as shall be deemed most conducive to the administration of justice.” (Emphasis added.) General Statutes (1808 Rev.) tit. 42, c. 15, § 2 (1808 statute). The 1808 statute remained in effect through 1818, and the adoption of our state constitution. In contrast to this delegation of rule-making authority by the General Assembly in 1807, no similar statutory history exists regarding evidentiary law. Rather, from the time of the Connecticut colony’s adoption of the common law of England until 2000, when the code first was adopted, our evidence law was consistently a product of common-law adjudication subject to the appellate
A side effect of this appears to be Justice Palmer’s conclusion that this court has authority to change, modify or enact a rule of practice, a conclusion that I suggest is premature in light of the language of the 1808 statute and the fact that the present case does not present a challenge to this court’s authority over the rules of practice. Unlike the clear constitutional authority of this court to be the final and binding arbiter over evidence law, the 1808 statute presents an ambiguity as to what corut possesses the final authority over the rules of practice. At a minimum, the 1808 statute makes it clear that the authority to enact rules of practice was vested in the judges of the Superior Court serving in some capacity, and, ultimately, this authority was incorporated into the state constitution in 1818.
I suggest, however, that the 1808 statute does not unambiguously resolve a dispute that could arise with respect to whether the judges of the Superior Court or the Supreme Corut have final authority over the rules of practice applicable to trial courts. At the time that the 1808 statute was passed, and after the constitution was adopted in 1818, the judges of the Superior Court sat not only as trial judges but also as the judges of the Supreme Court of Errors. Therefore, the rules promulgated by the Superior Court pursuant to the 1808 statute could have been promulgated in their capacity as trial judges or in their capacity as appellate judges. See Kinsella v. Jaekle, 192 Conn. 704, 716, 475 A.2d 243 (1984) (1806 act “mandated that only judges of the Superior Court would . . . serve on the Supreme Court
Dissenting Opinion
dissenting. The Connecticut Code of Evidence (code) is a judicial codification of general rules of prospective application. These rules are the functional equivalent of laws. The judges of the Superior Court, a title that the justices of this court and the judges of the Appellate Court also hold, adopted the code in the exercise of their heretofore unquestioned rule-making authority in matters of procedure. Nonetheless, the majority
I
The majority posits four reasons why this court is not constrained in its ability to overrule or modify a rule of evidence despite the fact that the judges of the Superior Court have codified that rule into the code: (1) “Although it is clear [from the stated purpose of the code under § 1.2 (a)] that the judges of the Superior Court intended the law of evidence to grow and develop in the future through ‘interpretation of the [c]ode’ and through ‘judicial rule making,’ the meaning of these two terms ... is unclear”; (2) the history of the code only “reflects that [it] was intended to provide the bench and the bar with a concise and authoritative restatement of the state’s common law and identified statutory rules of evidence”; (3) there is no express evidence in the text of the code or its history to “support the conclusion . . . that the code was intended to divest this court of its inherent authority to change and develop the law of
The issue of whether this court has authority to overrule or modify a rule it had prescribed in an adjudication after the judges of the Superior Court subsequently have adopted that rule as part of the code was addressed extensively in Justice Borden’s concurring and dissenting opinion in State v. Sawyer, 279 Conn. 331, 374, 904 A.2d 101 (2006).
It is undisputed that the code was intended to codify, and thus embody, the law of evidence in our state as it existed in our case law at the time of the adoption of the code. The purposes of the code, as set forth in § 1-2 (a), are “to adopt Connecticut case law regarding rules of evidence as rules of court and to promote the growth and development of the law of evidence through inteipretation of the [c]ode and through judicial rule making to the end that the truth may be ascertained and proceedings justly determined.” With respect to the first of the two purposes, the commentary explains that the intent “was to place common-law rules of evidence and certain identified statutory rules of evidence into a readily accessible body of rules to which the legal profession conveniently may refer.” Conn. Code Evid. § 1-2 (a), commentary.
Rather, there was a need for an authoritative, binding statement of rules. Thus, a “code” of evidence was created, analogous to the Federal Rules of Evidence. See Conn. Code Evid. § 1-2 (a), commentary.
The first identified method of growth — interpretation — readily can be understood in accordance with its commonly understood meaning as applied in scores of cases. “ ‘[Ijnterpret’ ” is defined as “[tjo construe; to seek out the meaning of language”; Black’s Law Dictionary (6th Ed. 1990); “ ‘interpretation’ ” is defined as “[tjhe art or process of discovering and ascertaining the meaning of a statute, will, contract, or other written document . . . .’’Id. When a court interprets, it cannot change the inherent meaning of words or supply additional terms to change the meaning of the provision at issue. See Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) (“[tjhe process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case” [internal quotation marks omitted]); Lucarelli v. State, 16 Conn. App. 65, 70, 546 A.2d 940 (1988) (“[cjourts must interpret statutes as they are written . . . and cannot, by judicial construction, read into them provisions which are not clearly stated” [citations omitted]). Thus, the code recognizes that the law of evidence will grow by way of construction of ambiguities and gaps in the
The second method of growth identified under § 1-2 (a) is by way of “judicial rule making.” Rule making is a term generally associated with the exercise of a legislative type function, typically a process whereby a body prescribes a general rule of prospective effect unconnected to a particular party or matter.
The authority reserved to the courts in their adjudicative capacity as a result of the conferral of rule-making authority on the judges of the Superior Court expressly is addressed in the saving clause set forth in § 1-2 (b) of the code. Because, “[w]ith codification, the courts are, in general, confined to interpreting and applying the [c]ode, and changes require action by the codifying entity, in this case, the Judges of the Superior Court”; State v. Sawyer, supra, 279 Conn. 374 (Borden, J., concurring and dissenting); this provision was added to the code to temper this necessary loss of flexibility that
It is also significant that, in order to execute effectively the judicial rule-making power, the judges of the Superior Court, when adopting the code, created an evidence code oversight committee. The stated purpose of that committee is “ ‘to monitor the operations of the [code] as it is implemented in practice, and to make periodic recommendations for revision and clarification to the [r]ules [c]ommittee of the Superior Court.’ ” D. Borden, supra, p. 216. In so doing, the judges decided to treat the code as a component to, and a corollary of, the rules of practice, as proposed rules of evidence cannot be submitted for adoption by the judges of the Superior Court unless they are approved by the rules committee that oversees the rules of practice.
From the foregoing textual analysis, I agree with Justice Borden that “the following conclusions could not be more clear. First, the [c]ode has adopted — codified— our law of evidence as it existed in our case law at the time of the [c] ode’s adoption. Second, if a matter is covered by the [c]ode, this court cannot change the rule; that function is for the evidence code oversight committee, the rules committee of the Superior Court, and ultimately for the judges of the Superior Court. This court may, of course, as may any court, interpret the [c]ode, as applied to any set of facts in a given case.”
The majority’s textual analysis dismisses as irrelevant the clear language in § 1-2 (b) that precludes “any court” from acting in its common-law adjudicative capacity to modify or overrule code provisions except when a conflict arises between a provision of the code and a provision of the state constitution, federal constitution, General Statutes or rules of practice. Their rationale for so doing, relegated to a footnote of their opinion, is nothing short of extraordinary. They posit that, because the commentary to the code provides that it governs “evidentiary issue [s] that might arise during trial”; (emphasis added) Conn. Code Evid. § 1-2 (b), commentary; the saving clause is, therefore, “applicable exclusively to the Superior Courts, rather than to the Appellate Court or to this court.” See footnote 17 of the majority opinion. This reasoning begs the question — are not the only evidentiary issues that an appellate court examines ones that arise during a trial? Evidentiary rulings are made in the trial court in the first instance. Our appellate courts have no authority to render advisory opinions unconnected to a contested issue that has arisen in the course of a trial court proceeding. Packer v. Board of Education, 246 Conn. 89, 122-23, 717 A.2d 117 (1998) (Berdon, J., concurring); see Pizzuto v. Commissioner of Mental Retardation, 283 Conn. 257, 263-64, 927 A.2d 811 (2007). Thus, the commentary’s acknowledgment of the context in which evidentiary issues will arise in the first instance does not render the saving clause inapplicable to appellate courts. See Conn. Code Evid. § 1-2 (b) and commentary (referring, respectively, to “any court” and “courts” in plural).
The majority also reasons that, “[b]ecause the commentary to § 1-2 refers to evidentiary law developed via case-by-case common-law adjudication as ‘rules of evidence,’ it appears that the judges of the Superior Court intended the term ‘judicial rule making’ to include evidentiary law developed through case-by-case common-law adjudication.” Although the commentary refers to “rules” of evidence developed through common-law adjudication, I am at a loss to imagine what else the commentary would or indeed could label such tenets. The generic term “rules” is not synonymous with the legal term of art “judicial rule making,” which, as the cases previously cited indicate, is used to describe the legislative type function exercised by the judicial branch when making procedural rules.
Therefore, the majority ignores both the well understood meaning of “interpretation” and “judicial rule making” as well as the express limitation that new rules of evidence through common-law adjudication only may be fashioned in instances that are not covered by the code either explicitly or implicitly; Conn. Code Evid. § 1-2 (b); to reach its conclusion that the code is silent on the court’s ability to change the rules of evidence through case-by-case common-law adjudication. Buoyed by their manufactured ambiguities, the majority turns to the discussion at the judges’ meeting at which
First, it is well-known that, as chair of both the evidence code drafting committee and the rules committee of the Superior Court, Justice Borden sent a lengthly letter in advance of and thereafter spent many hours at a judges’ association meeting explaining the code prior to his official presentation. Thus, his statements at the official meeting reasonably should be viewed as a summation, not a comprehensive discussion of all of the ramifications of adoption of the code. Second, and of greater significance, the majority improperly assumes that the judges of the Superior Court, many of whom had served on either the evidence code drafting committee or the rules committee had no understanding or appreciation of what it means to adopt a code, as opposed to a handbook; failed to understand the meaning of the saving clause setting forth the scope of the courts’ authority with respect to the code; and had no knowledge of our case law recognizing similar constraints on the courts’ authority with respect to the rules of practice. Because these facts are evident, however, I assume that, despite Justice Borden’s failure to spell it out for them, the judges of the Superior Court were aware that they would have plenary power over both the rules of practice and the code, thus relieving the appellate courts of authority to change such rules. Indeed, had it not then been clear, one would have expected some response to Justice Borden’s law review article, published prior to the effective date of the code, explaining that the saving clause of the code was modeled on the saving clause of the Penal Code; see footnote
I also question the majority’s reliance on anecdotal evidence. The fact that any one trial judge, no matter how senior or well respected, did not appreciate the full import of his or her vote does not mean that the code is not what it expressly purports to be. Indeed, given that this court generally accords special weight to statements of intent by legislators who sponsor or draft a bill at issue; Cotto v. United Technologies Corp., 251 Conn. 1, 9 n.6, 738 A.2d 623 (1999); United Illuminating Co. v. Groppo, 220 Conn. 749, 760 n.14, 601 A.2d 1005 (1992), aff'd, 226 Conn. 191, 627 A.2d 407 (1993); State v. Guckian, 27 Conn. App. 225, 237, 605 A.2d 874 (1992); one would think that the interpretations offered by Justice Borden, as chair of the committee charged with drafting the code, and by Professor Colin Tait, as one of the original members of the drafting committee; see footnote 12 of this dissenting opinion; would carry greater weight. Indeed, if anecdotal evidence were persuasive, I would point the majority to a letter in the files for the evidence code oversight committee from Justice Borden to me in my capacity as chair of that committee, dated a few weeks after the effective date
If all else fails, the majority relies on the maxim of statutory construction that we construe statutes, whenever possible, to avoid constitutional infirmities; Denardo v. Bergamo, 272 Conn. 500, 506 n.6, 863 A.2d 686 (2005); to conclude that this court must retain authority to change the rules of evidence through case-
The numerous cases, previously discussed, in which this court has held that the appellate courts have no authority to change rules of practice, as that authority is vested exclusively in the judges of the Superior Court, squarely repudiate the notion that the binding effect of the code violates the constitution. The process by which those rules are adopted is identical to the process by which the rules under the code were adopted. If the binding effect of the code is unconstitutional, so too is the binding effect of the Practice Book. This court has considered constitutional challenges regarding separation of powers concerns via legislative intrusion into the court’s authority to adopt rules of practice, without ever suggesting that the procedure within the judicial branch itself may be constitutionally suspect. See Bleau v. Ward, 221 Conn. 331, 603 A.2d 1147 (1992); Mitchell v. Mitchell, 194 Conn. 312, 481 A.2d 31 (1984); Steadwell v. Warden, supra, 186 Conn. 153; State v. Clemente, 166 Conn. 501, 353 A.2d 723 (1974); see also Fishman v. Middlesex Mutual Assurance Co., 4 Conn. App. 339, 494 A.2d 606, certs. denied, 197 Conn. 806, 807, 499 A.2d 57 (1985).
To the extent that our cases have recognized inherent rule-making authority independent of statutory or constitutional grant, this court has recognized that such authority is not vested exclusively in the Supreme Court and never has suggested that the lower courts’ inherent
The majority also seems to overlook the circumstances leading to the adoption of the code and the effect of § 51-14. Former Chief Justice Peters, as head of the entire judicial branch, requested that the legislature adopt a code of evidence. Had the legislature acceded to that request, this court could not assert that its adjudicatory authority unconstitutionally had been abridged because it no longer could change common-law rules codified by the legislature.
It is conceivable that Chief Justice Callahan, as then head of the judicial branch, could have initiated a rule-making process governed exclusively by the Supreme Court. The fact that he initiated a process governed by the judges of the Superior Court, however, is entirely
I also would point out that our state constitution, unlike those of many other states, does not confer express authority on the state’s highest court to make rules of practice and procedure generally, including rules of evidence, or confer express rule-making authority specifically over all lower courts.
Several other states’ constitutions confer rule-making power on their highest court, but subject that power
In his concurrence, Justice Palmer acknowledges that the code clearly precludes changes to the code except by the rule-making process under the aegis of the judges of the Superior Court, but posits that this limitation applies only to the Superior Court — despite express language in § 1-2 (b) that this limitation applies to “any court” — because a different conflict would arise if that section were deemed to bind the appellate courts. (Emphasis added.) Specifically, the concurrence concludes that such a result would be inconsistent with this court’s inherent supervisory authority over the administration of justice.
Because “[o]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts”; (emphasis added) State v. Hines, 243 Conn. 796, 815, 709 A.2d 522 (1998); undoubtedly
Finally, I would note that it is entirely appropriate for the judges of the Superior Court to have been given
II
In light of my conclusion that this court has no authority to reconsider the liberal rule of admissibility for prior bad acts in sex crime cases, which was applied in accordance with the code in the present case, I turn to the question presented in the state’s appeal as to whether the Appellate Court properly concluded that the first degree kidnapping statute, General Statutes § 53a-92 (a) (2), is unconstitutionally vague as applied to the facts of this case. On the basis of our decisions in State v. Salamon, supra, 287 Conn. 509, and State v. Sanseverino, supra, 287 Conn. 608, in which we altered our long-standing interpretation of the kidnapping statute, I disagree with the majority’s decision to overrule Sanseverino to support its conclusion that the defendant in the present case is not entitled to a judgment of acquittal on his conviction for kidnapping in the first degree because “any insufficiency in proof was caused
A
I begin with my strong disagreement with the majority’s decision to overrule our holding in Sanseverino that the defendant was entitled to a judgment of acquittal, which three members of the present majority joined less than two months ago, and with its decision to do so on a ground that was squarely presented to them in the dissent. Not only do I disagree with the majority’s characterization and determinations regarding Sanseverino, but I am also troubled by its lack of respect for the principle of stare decisis in its willingness to cast aside precedent without persuasive justification. See Vasquez v. Hillery, 474 U.S. 254, 265-66, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986) (“[Stare decisis] contributes to the integrity of our constitutional system of government, both in appearance and in fact. . . . [A]ny detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the [c]ourt has felt obliged to bring its opinions into agreement with experience and with facts newly ascertained.” [Internal quotation marks omitted.]); Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494, 923 A.2d 657 (2007) (“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. . . . It is the most important application of a theory of decisionmaking consistency in our legal
In Salamon, the defendant had asked this court to reconsider and overrule a line of kidnapping decisions; see, e.g., State v. Luurtsema, 262 Conn. 179, 201-203, 811 A.2d 223 (2002); in which this court had held that no minimum period of restraint or degree of movement is necessary for that offense, even when the restraint is merely incidental to an underlying offense. While Salamon was pending before this court, we heard argument in State v. Sanseverino, supra, 287 Conn. 608, and released the decisions in the two cases concurrently, with Salamon as the lead case, and with the intention that the two cases would provide guidance to the bench and bar, as application of the framework adopted had yielded different results. See State v. Salamon, supra,
In State v. Salamon, supra, 287 Conn. 542, we concluded that the intent to prevent the victim’s liberation required for an abduction — and thus a kidnapping— requires something more than the restraint necessary and incidental to the underlying crime. Although we reaffirmed our long-standing rule that no minimum period of restraint or degree of movement is necessary, we determined that “[t]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts.” (Internal quotation marks omitted.) Id., 546. We concluded that this determination is a question for the jury. Id., 547-48. Because we announced a new rule, the defendant would have been entitled to a retrial if we had viewed the case as solely implicating instructional error. The defendant in Salamon, however, had claimed that he was entitled to a judgment of acquittal under the new interpretation that he urged the court to adopt because, “in light of the evidence adduced at trial, no juror reasonably could conclude that the restraint imposed on the victim was not incidental to the restraint used in connection with the assault of the victim.” Id., 548-49. Despite the fact that there was no doubt that the state had adduced sufficient evidence to convict the defendant under the law as it existed at the time of trial, we nevertheless conducted a sufficiency of the evidence analysis and examined in detail the specific evidence adduced at trial, concluding that a retrial was warranted because the facts were such that a reasonable jury could find a kidnapping under the new rule. Id., 549-50 (“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. ... In light of the evidence, moreover, a juror reason
The defendant in Sanseverino did not expressly ask the court to reconsider the issues that were presented to us in Salamon, and instead claimed that the statute was void for vagueness as applied to the facts of his case. State v. Sanseverino, supra, 287 Conn. 618-19. Nonetheless, in addressing the considerations relevant to a void for vagueness challenge, namely, whether a person of ordinary intelligence could reasonably have
Although the defendant had not raised a sufficiency of the evidence claim on appeal, he had preserved such a claim at trial via a posttrial motion for judgment of acquittal, and his arguments on appeal were directed at whether the facts of the incident would support such a kidnapping charge, and thus, necessarily, such a conviction. For these reasons, we eschewed the vagueness challenge and applied the analytical framework adopted in Salamon, evaluated the evidence under our well established test for sufficiency of the evidence
Although it is unclear whether the majority distinguishes these two cases by virtue of the fact that the defendant in Sanseverino did not expressly raise a sufficiency of the evidence claim, a claim that if successful results in judgment of acquittal; State v. Fernandez, 198 Conn. 1, 21, 501 A.2d 1195 (1985); we did in fact apply a sufficiency analysis in that case. It is not without precedent under our jurisprudence
The majority’s reliance on United States v. Ellyson, 326 F.3d 522, 529 (4th Cir. 2003), as support for its conclusion that retrial always is appropriate because a new rule renders a claim one of instructional error, is misplaced. In that case, wherein the offense at issue was possession of child pornography, the United States Supreme Court had applied a constitutional gloss to that possession statute in another case, decided after the trial of the defendant in Ellyson but while his appeal was pending, which required the state to prove a different element that necessarily would have required entirely different proof — i.e., that the image was that of an actual child, not a virtual image that “appears to be ... a minor engaging in sexually explicit conduct.” Id., 529-30.
The Fourth Circuit’s analysis is entirely correct in that retrial is appropriate when a change in the law requires the state to proffer additional, critical evidence to prove its case. In Elly son, the record made it manifest that there was an entirely new body of evidence that the state could put forth regarding whether some of the images involved actual children. See id. Thus, the court permitted the state to do more, when it was evident that there was more to do. These circumstances are analogous to the concerns about fairness to the state that have motivated this court to permit retrial because the evidence would have been sufficient to support a conviction but for an evidentiary error. See State v. Gray, 200 Conn. 523, 539, 512 A.2d 217 (concluding that defendant’s confession was inadmissible but that retrial, as opposed to acquittal, was proper because evidence otherwise sufficient and, in light of exclusion of confession, state might have introduced evidence to replace it that otherwise would have been cumulative),
It is equally apparent to me, however, that there are cases in which it is not appropriate to permit retrial when there is a new rule established or adopted. There are cases in which it is possible to discern that the state has told as complete a story as is relevant to the elements of the offense. Although in such cases double jeopardy would not bar a retrial, the question of what we may do constitutionally does not dictate what we should do in the interests of fairness to the defendant and judicial economy. See Lockhart v. Nelson, 488 U.S. 33, 39-42, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988) (double jeopardy does not bar retrial when reversal was based on evidentiary error and remaining evidence was sufficient to support conviction); State v. Gray, supra, 200 Conn. 539 (same). In Sanseverino, the kidnapping and the underlying crime of sexual assault clearly were part of a well-defined transaction of events. The victim walked into the room of her own accord, was sexually assaulted, and then left the room as soon as the defendant released her. State v. Sanseverino, supra, 287 Conn. 615. Because each step of that transaction, from the time the victim entered to the time she fled, was so well-defined by the evidence, it was clear that there was nothing further the state could have adduced from the victim, the only witness to the crime, that would have showed that there was restraint over and above that necessary to commit the crime of sexual assault. Id., 625 n. 16. As the discussion in part IIB of this dissent indicates, the same is true for the present case. I can
B
In light of my conclusion that a sufficiency of the evidence analysis is appropriate in this context, I turn to its application to the facts in the present case. The
We dealt with the intersection between restraint and abduction in State v. Salamon, supra, 287 Conn. 534-35, when we resolved an ambiguity between the intent necessary for a restraint and the intent necessary for an abduction. We concluded that the intent to prevent the victim’s liberation necessary for an abduction requires something more than the restraint necessary and incidental to the underlying crime. Id., 542. “[A] defendant may be convicted of both kidnapping and another sub
The line at which restraint becomes more than that necessary and incidental to the underlying crime is exemplified by contrasting the factual scenarios in Salamon and Sanseverino. In Salamon, the defendant had approached the victim from behind as she was ascending a flight of stairs, grabbed her by the back of the neck, causing her to fall, and held her down by her hair as she struggled to break free. Id., 549. When the victim began to scream, the defendant punched her in the mouth and attempted to insert his fingers into her throat. Id. After being restrained for approximately five
In State v. Sanseverino, supra, 287 Conn. 625, which was the first case that had relied on the interpretation of the kidnapping statute set forth in Salamon, the defendant, the owner of a bakery, had followed the victim, one of his employees, after she walked into a storage room, pushed her up against a wall and sexually assaulted her. After he had ejaculated, the defendant released the victim and she was able to leave the room. Id. We reversed the defendant’s kidnapping conviction and directed a judgment of acquittal because we determined that “no reasonable jury could have convicted the defendant of kidnapping in the first degree in light of our . . . holding in Salamon.” Id.
In contrast to Salamon, Sanseverino represented the quintessential example of the discrete set of facts that our interpretation of the kidnapping statute in Salamon was meant to guard against. The defendant physically restrained the victim only for the brief period that the sexual assault took place and immediately thereafter released her and allowed her to leave the room. Id. There was simply no other evidence that the defendant intended to prevent the victim’s liberation in some man
Again, applying Salamon’s analytical framework, I would conclude that the record in the present case illustrates the same discrete set of circumstances that warranted a judgment of acquittal in Scmseverino. No reasonable jury could find, under the proper legal standard, that there was sufficient evidence to establish that the defendant possessed the requisite intent for abduction because the defendant had restrained the victim no more than was necessary to accomplish the sexual assault. The defendant asked the victim to go to a room in the store, and she went. He closed the door, and may have locked it, but not in such a manner as to prevent the victim from leaving of her own volition.
There is more to abduction, however, than merely considering whether the restraint was incidental to, rather than independent of, the underlying crime. In the present case, the state has failed to establish the other elements of an abduction, namely, that the defendant either had (1) secreted the victim “in a place where [s]he [was] not likely to be found”; General Statutes § 53a-91 (2) (A); or (2) held her by “using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (2) (B). It is starkly apparent that the state did not adduce evidence that the defendant secreted the victim in a place where she was not likely to be found, as she was in a room within the store itself. Cf. State v. Suggs, 209 Conn. 733, 759, 553 A.2d 1110 (1989) (defendant had secreted victim in place where she was not likely to be found when he sexually assaulted her at night in unlit field containing abandoned car and old railroad tracks, which was behind garage and fence).
Additionally, there is no evidence that reasonably supports a determination that there was force or intimidation of any kind. Although the victim protested verbally during the removal of her pants and the act of penetration, the defendant did not respond. The defendant did not threaten the victim verbally, nor did he strike her or pin her down. After the defendant vaginally penetrated the victim, she got off the desk and left the room with no impediment from the defendant. Thus, there is no evidence of physical force or intimidation to establish the abduction necessary for a kidnapping.
The facts that the defendant was an authority figure and the victim was of limited mental ability in and of themselves do not establish force or intimidation. A mere command from an employer reasonably cannot constitute the intimidation or threat necessary for an abduction. If that were the case, it would call into question the criminality of every situation in which an employee was forced to sit and withstand a reprimand by a supervisor. Moreover, abduction, unlike restraint and other provisions in the Penal Code involving an element of consent, does not take into account the age or mental ability of the victim when determining whether there has been force or intimidation in preventing a victim’s liberation. Cf. General Statutes § 53a-91 (1) (B) (lack of consent involved in restraint includes acquiescence of incompetent person without permission of parent or guardian);
In conclusion, I note that, in this case, my colleagues have disavowed recent positions taken by this court with respect to both the binding effect of the code and the circumstances under which judgment of acquittal is proper. Understandably, the bench and bar may be somewhat confused by this result, as am I. Like Shakespeare’s Puck, I can only apologize to the audience and suggest that it also pretend that this has all been a bad dream.
Although part II of Chief Justice Rogers’ opinion addressing the effect of the code garnered only a plurality of this court, I refer to her plurality opinion on that issue as the majority for the sake of consistency throughout this dissenting opinion.
Although I conclude that this court lacks the authority to overrule our case law setting forth a more liberal standard for the admission of prior bad acts in sex crime cases once that case law was codified into the code, I reiterate my view that we should not have adopted this rule in the first instance. See State v. Merriam, 264 Conn. 617, 679-88, 835 A.2d 895 (2003) (Katz, J., dissenting); State v. Kulmac, 230 Conn. 43, 79-88, 644 A.2d 887
I also made the following observations with respect to that issue in my concurring opinion in State v. Sawyer, supra, 279 Conn. 363-64: “The majority appears to recognize that, since the adoption of the [cjode, the authority to change these rules lies solely with the judges of the Superior Court in the exercise of their judicial rule-making function. Nonetheless, the majority questions, but leaves to another day, whether, to the extent that evidentiary rules may ‘implicate substantive rights,’ those rules properly may be the subject of such judicial rule making, as opposed to common-law adjudication. In my view, for the reasons that follow, the answer to this question is clear and straightforward and we should not suggest otherwise to the trial judges who are charged with the daily application of the [cjode. The [cjode governs where it speaks, and the courts’ common-law rule-making authority governs either where the [cjode does not speak or where the [cjode requires interpretation. See Conn. Code Evid. § 1-2.” See footnote 11 of this dissenting opinion and the related text for discussion of the majority opinion in Sawyer.
General Statutes (Sup. 2008) § 51-14 provides: “(a) The judges of the Supreme Court, the judges of the Appellate Court, and the judges of the Superior Court shall adopt and promulgate and may from time to time modify or repeal rules and forms regulating pleading, practice and procedure injudicial proceedings in courts in which they have the constitutional authority to make rules, for the purpose of simplifying proceedings in the courts and of promoting the speedy and efficient determination of litigation upon its merits. The rules of the Appellate Court shall be as consistent as feasible with the rules of the Supreme Court to promote uniformity in the procedure for the taking of appeals and may dispense, so far as justice to the parties will permit while affording a fair review, with the necessity of printing of records and briefs. Such rules shall not abridge, enlarge or modify any substantive right or the jurisdiction of any of the courts. Subject to the provisions of subsection (b) of this section, such rules shall become effective on such date as the judges specify but not in any event until sixty days after such promulgation.
“(b) All statutes relating to pleading, practice and procedure in existence on July 1, 1957, shall be deemed to be rules of court and shall remain in effect as such only until modified, superseded or suspended by rules adopted and promulgated by the judges of the Supreme Court or the Superior Court pursuant to the provisions of this section. The Chief Justice shall report any such rules to the General Assembly for study at the beginning of each regular session. Such rules shall be referred by the speaker of the House or by the president of the Senate to the judiciary committee for its consideration and such committee shall schedule hearings thereon. Any rule or any part thereof disapproved by the General Assembly by resolution shall be void and of no effect and a copy of such resolution shall thereafter be published once in the Connecticut Law Journal.
“(c) The judges or a committee of their number shall hold public hearings, of which reasonable notice shall be given in the Connecticut Law Journal and otherwise as they deem proper, upon any proposed new rule or any change in an existing rule that is to come before said judges for action, and
“(d) Upon the taking effect of such rules adopted and promulgated by the judges of the Supreme Court pursuant to the provisions of this section, all provisions of rules theretofore promulgated by the judges of the Superior Court shall be deemed to be repealed.”
I note that minor technical changes, not relevant to this appeal, were made to § 51-14 subsequent to the time the legislative committee submitted the code for consideration and adoption. For purposes of convenience, however, I refer to the present revision of the statute.
See, e.g., State v. Rinaldi, 220 Conn. 345, 359, 599 A.2d 1 (1991) (citing to C. Tait & J. LaPlante, Handbook of Connecticut Evidence [2d Ed. 1988]); State v. Jeffrey, 220 Conn. 698, 710, 601 A.2d 993 (1991) (same), cert. denied, 505 U.S. 1224, 112 S. Ct. 3041, 120 L. Ed. 2d 909 (1992); State v. Famiglietti, 219 Conn. 605, 612, 595 A.2d 306 (1991) (same); Dunham v. Dunham, 217 Conn. 24, 32-33, 584 A.2d 445 (1991) (same); State v. Alvarez, 216 Conn. 301, 310-11, 579 A.2d 515 (1990) (same); State v. Robinson, 213 Conn. 243, 258, 567 A.2d 1173 (1989) (same), overruled on other grounds by State v. Colon, 257 Conn. 587, 778 A.2d 875 (2001); State v. James, 211 Conn. 555, 571-72, 560 A.2d 426 (1989) (same); State v. Brown, 22 Conn. App. 521, 523, 577 A.2d 1120, cert. denied, 216 Conn. 825, 582 A.2d 204 (1990) (same); Streicher v. Resch, 20 Conn. App. 714, 717, 570 A.2d 230 (1990) (same); State v. Person, 20 Conn. App. 115, 124, 564 A.2d 626 (1989) (same), aff'd, 215 Conn. 653, 577 A.2d 1036 (1990), cert. denied, 498 U.S. 1048, 111 S. Ct. 756, 112 L. Ed. 2d 776 (1991); Schultz v. Barker, 15 Conn. App. 696, 702, 546 A.2d 324 (1988) (same); Zadroga v. Commissioner of Motor Vehicles, 42 Conn. Sup. 1, 8, 597 A.2d 848 (1991) (same); Blue Cross & Blue Shield of Connecticut, Inc. v. DiMartino, Superior Court, judicial district of New Haven, Docket No. 300642 (July 2, 1991) (same); Security Connecticut Life Ins. Co. v. Bajorski, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 387879 (June 26, 1991) (6 C.S.C.R. 682) (same).
In that same regard, the formal process undertaken for the code’s adoption, wherein the proposed code was submitted for approval to the rules committee of the judges of the Superior Court, subjected to a public hearing and thereafter submitted to a vote by judges of the Superior Court; see C. Tait & E. Prescott, supra, § 1.1.4; would seem entirely unnecessary if the intent was to create nothing more than a nonbinding restatement of the law in the form of a handbook.
“Although the [c]ode follows the general format and sometimes the language of the Federal Rules of Evidence, the [c]ode does not adopt the Federal Rules of Evidence or cases interpreting those rules. Cf. State v. [Vilalastra], 207 Conn. 35, 39-40, 540 A.2d 42 (1988) (Federal Rules of Evidence influential in shaping Connecticut evidentiary rules, but not binding).
“Unlike the Federal Rules of Evidence, which govern both the admissibility of evidence at trial and issues concerning the court’s role in administering and controlling the trial process, the [c]ode was developed with the intention that it would address issues concerning the admissibility of evidence and competency of witnesses, leaving trial management issues to common law, the Practice Book and the discretion of the court.” Conn. Code Evid. § 1-2 (a), commentary.
See, e.g., General Statutes § 22-203aa (addressing rule-making authority of Northeast Interstate Dairy Compact Commission); General Statutes § 46b-151h (addressing rule-making authority of Interstate Commission for Juveniles); General Statutes § 51-81c (addressing rule-making authority of judges of the Superior Court for use of interest earned on attorneys’ clients’ funds accounts); General Statutes § 54-133 (addressing rule-making authority of Interstate Commission for Adult Offender Supervision); see also Hasselt v. Lufthansa German Airlines, 262 Conn. 416, 432, 815 A.2d 94 (2003) (“[w]e previously have not determined whether a commissioner’s policy directive, which contains an interpretation not adopted pursuant to formal rule-making or acyudicatory procedures, is entitled to deference”); Furhman v. Dept. of Transportation, 33 Conn. App. 775, 782 n.6, 638 A.2d 1091 (1994) (addressing “rule-making provisions of the Uniform Administrative Procedure Act” under General Statutes § 4-168); Vincenzo v. Warden, 26 Conn. App. 132, 143-44, 599 A.2d 31 (1991) (discussing parole board’s failure to adhere to rule-making procedures).
General Statutes § 53a-4 provides: “The provisions of this chapter shall not be construed as precluding any court from recognizing other principles of criminal liability or other defenses not inconsistent with such provisions.” See also Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. (West 2007) § 53a-4, comments, p. 324 (“The purpose of this saving clause is to make clear that the provisions of [General Statutes §§] 53a-5 to 53a-23, which define the principles of criminal liability and defenses, are not necessarily exclusive. A court is not precluded by [§§] 53a-5 to 53a-23 from recognizing other such principles and defenses not inconsistent therewith.”).
The process by which rules of practice are adopted is identical to the process for rules of evidence, except that the latter process commences in the evidence code oversight committee. S eeRules Committee of the Superior Court v. Freedom of Information Commission, supra, 192 Conn. 237 (“The [r]ules [c]ommittee is a body composed of judges of the Superior Court. Its function is to consider proposed changes in the rules of practice for the Superior Court, and to recommend amendments to the Practice Book, which may be adopted by vote of the Superior Court judges. Once proposed Practice Book amendments have been approved by the [r]ules [cjommittee, they are published in the Connecticut Law Journal, and are subject to public comment before their adoption by the judges.”).
The majority in Sawyer questioned only whether the code constrains this court’s ability to reconsider a “substantive” rule of evidence that this court had adopted in a case, but clearly conceded that such a constraint would operate if a rule was what it deemed “procedural.” The majority’s attempt in this case to distance itself from that acknowledgment by relegating it to dictum appears to be result oriented, given the fact that we had requested and received comprehensive supplemental briefs on this very issue and two justices on this court had written vigorous challenges to the majority opinion directed specifically at these statements. Thus, although the statement was dicta in the sense that it was not essential to the holding in that case, it is disingenuous to imply that the Sawyer majority’s statement was made without deliberate reflection. Indeed, prior to Sawyer, two members of the majority in the present case had joined or written opinions stating that this court has no authority to change rules of practice, as such
The same conclusion was articulated by Professor Colin Tait of the University of Connecticut School of Law, who has served continuously as a member of the various committees responsible for the code, first as a member of the legislatively appointed drafting committee, then as a member of the committee formed by Chief Justice Callahan as head of the judicial branch to consider and review the proposed code, and finally as a member of the evidence oversight committee: “Development of evidentiary rules not contained in the [c]ode, viz. the common law, could be accomplished through judicial decisions, or by judicial rule-making. [Conn. Code Evid.] § 1-2 (a). If a judicial decision is subsequently codified in the [c]ode, the ensuing rule can be changed only by a change in [the] [c]ode itself by the rule-making process. Moreover, to promote the development of the law of evidence, the [c]ode can be amended to change the existing common law found in judicial decisions that are deemed archaic, obsolete, unwise, or not in accord with modem legal thinking or jurisprudence. To that end, the [c]ode could, by the rule-making process, effectively negate a Supreme Court decision that is deemed to impede the development of the law of evidence.” C. Tait & E. Prescott, supra, § 1.3.1, p.17.
Numerous courts have acknowledged that judicial rule making is essentially a legislative act. See, e.g., Supreme Court of Virginia v. Consumers Union of the United States, Inc., 446 U.S. 719, 731, 734, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980) (concluding that, when Virginia Supreme Court adopted state bar code, it was acting in rule making, not adjudicatory capacity, and therefore was acting in legislative capacity that entitled it to legislative
The letter from Justice Borden, dated January 26, 2000, provided: “As I indicated in our recent conversation, an intriguing suggestion was made to me by one of the [assistant [s]tate’s [a]ttomeys when I addressed their [a]ppellate [u]nit recently regarding the [code]. The suggestion is that the [c]ode be amended to provide that the Supreme Court be empowered, in the context of a specific case, to amend or overrule any specific provision in the [c]ode, in a kind of common law manner, if reason, experience and policy persuade the [c]ourt to do so.
“The principal argument for it is that it provides one more way to preserve the kind of common law flexibility in advancing and modernizing the law of evidence that the [c]ode, by virtue of being a [c]ode, has reduced. It would also give parties the incentive, in the context- of specific cases, to argue for a change in the law of evidence that they probably would not have under a [c]ode.
“I recognize that this would be an unusual provision, and can be viewed as inconsistent with the entire notion of having a [c]ode. Nonetheless, I think that it is at least [worth] exploring, and request that your committee (of which, as I understand it, you are the Czarina) consider it.
“Some of the questions that occur to me are: Are there any other judicially created evidence codes that have such a provision? Is it wise as a matter of policy? If the court were to do so, what mechanism would be employed to provide for subsequent amendment of the [c]ode to conform it to the Supreme Court decision — the [c]ourt itself formulating it, or the [e]vidence [c]ode [ojversight [c]ommittee suggesting a formulation for submission to the [r]ules [cjommittee, and then to the [j]udges? These are just some of the questions — I’m sure your [cjommittee will think of, and answer, others.”
This court previously has indicated that the legislature has the authority to enact statutes regulating the admission of evidence that would be binding on our courts, including the Supreme Court. See Johnson County Savings Bank v. Walker, 79 Conn. 348, 351-52, 65 A. 132 (1906) (Holding with regard to aprovision of the Negotiable Instruments Act: “[It] introduces no evidence immaterial to the issue, and excludes none which is material. It simply regulates the manner of introducing relevant evidence, and its enactment was fully within the power of the legislative department, notwithstanding its application may, as in this case, vary the ordinary rule of procedure that it is for him who alleges a fact to prove it, and not for him who denies the allegation to disprove it.”); see also Cooper v. Cavallaro, 2 Conn. App. 622, 627, 481 A.2d 101 (1984) (“Our legislature has passed more than a few statutes which create presumptions and affect the rules of evidence. A statute which generates a presumption, thereby shifting the burden of proof, is not an unconstitutional invasion of the legislature into the judicial sphere.”).
Moreover, in light of the fact that the request to adopt a code of evidence was initiated by the judicial branch, this court could not thereafter complain that the binding effect of the code violates the separation of powers provision
For example, one provision in the code that has its roots in the common law is the constancy of accusation rule in § 6-11 (c). See State v. Troupe, 237 Conn. 284, 297, 677 A.2d 917 (1996) (“This court expressly adopted the fresh complaint doctrine in State v. De Wolf, 8 Conn. 93, 100 [1830], in which we stated that ‘on an indictment for rape . . . such evidence is received to shew constancy in the declarations of the witness. If a female testifies, that such an outrage has been committed on her person, an enquiry is, at once, suggested, why it was not communicated to her female friends.’ ”). The constancy of accusation rule has continued to generate controversy as to whether the policy considerations that led to the adoption of the rule still apply; indeed, the evidence code oversight committee currently is considering amendments to that rule. Had the legislature chosen to adopt the proposed code presented to it in 1997, which included the constancy of accusation rule, this court would not be free to disregard the statute and overrule our prior precedent, even if we viewed that rule to be outdated. Indeed, it was in recognition of the legislature’s authority that § 1-2 (b) of the code provides in relevant part that “ [w]here the code does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience, except as otherwise required by . . . the General Statutes (Emphasis added.)
See General Statutes § 45a-78 (probate court rules of practice and procedure); General Statutes § 46b-231 (rules of procedure for family support magistrate division); General Statutes § 47a-14h (rules for landlord-tenant summary process actions); General Statutes § 51-15 (rules of procedure for various civil actions and modification of rules of pleadings, practice and evidence for small claims actions); General Statutes § 52-191c (rules for precedence of actions involving terminally ill persons); General Statutes § 51-245a (rules concerning qualification of interpreters to assist jurors); General Statutes § 52-549n (rules for referring contract action to fact finder); General Statutes § 52-549u (rules for referring civil action to arbitrator); General Statutes §§ 54-821 and 54-82m (rules for speedy trial).
See, e.g., Ala. Const., art. VI, § 150, amend. 328, § 6.11 (“[t]he supreme court shall make and promulgate rules governing the administration of all courts and rules governing practice and procedure in all courts”); Schoenvogel v. Venator Group Retail, Inc., 895 So. 2d 225, 253 (Ala. 2004) (constitutional power to make rules of practice and procedure includes rules of evidence); Colo. Const., art. VI, § 21 (“[t]he supreme court shall make and promulgate rules governing the administration of all courts and shall make and promulgate rules governing practice and procedure in civil and criminal cases”); Page v. Clark, 197 Colo. 306, 318, 592 P.2d 792 (1979) (power to make rules of practice and procedure include procedural rules of evidence); Fla. Const., art. V, § 2 (a) (“[t]he supreme court shall adopt rules for the practice and procedure in all courts”); In re Commitment of Cartwright, 870 So. 2d 152, 159 (Fla. App. 2004) (constitutional authority to adopt rules of practice and procedure include procedural rules of evidence), cert. denied, 914 So. 2d 952 (Fla. 2005); Md. Const., art. IV, § 18 (a) (“[t]he Court of Appeals from time to time shall adopt rules and regulations concerning the practice and procedure in and the administration of the appellate courts and in the other courts of this [sjtate”); Md. Code Ann., Cts. & Jud. Proc. § 1-201 (a) (LexisNexis 2006) (construing constitutional authority to adopt
See, e.g., Alaska Const., art. IV, § 15; La. Const., art. V, § 5; Mo. Const., art. V, § 5; Mont. Const., art. VII, § 2 (3); Neb. Const., art. V, § 25; Ohio Const., art. IV, § 5 (B); Va. Const., art. VI, § 5.
See, e.g., Iowa Const., art. VI, § 14; Iowa Code Ann. §§ 602.4201 and 602.4202 (West 1996); Me. Rev. Stat. Ann. tit. 4, § 8 (2007); Miss. Code Ann. § 9-3-61 (1972); N.Y. Const., art. VI, § 30; N.Y. Jud. Ct. Acts §§ 211 and 214-a; Wash. Rev. Code § 2.04.190 (West 2004); see also Mass. Gen. Laws c. 213, § 3 (LexisNexis 1999) (authorizing lower courts to adopts rules, but subjecting rules to approval by Supreme Judicial Court).
As one eminent legal scholar in this field explained with respect to congressional delegation of authority under a federal constitutional scheme substantially similar to Connecticut’s judicial provision: “If delegation [of Congress’ rule-making power] is possible, to whom may the power of rule-making be delegated? The delegee must be chosen in a way that makes institutional sense, that seems [to] meet in an historical framework, and that does no violence to our conception of separation of power theory and practice. . . . [I]t is obvious that the Supreme Court and individual courts could properly be delegated the responsibility of rule-making. So, too, could an assembly of judges such as the United States Judicial Conference or a committee or commission appointed by judges and approved by Congress.” J. Weinstein, Reform of Court Rule-Making Procedures (1977) pp. 95-96.
Unlike many other states, our constitution does not confer on this court general supervisory authority over the lower courts. See D. Pugh, C. Korbakes & J. Alfini et al., Judicial Rulemaking: A Compendium (1984) p. 36 (“[t]he judicial article of the Connecticut constitution, unlike that of most other states, does not specifically delineate the jurisdiction and powers of the courts comprising the judicial department”); see, e.g., Del. Const., art. IV, § 13 (“[t]he Chief Justice of the Supreme Court, or in case of his or her absence from the [s]tate, disqualification, incapacity, or if there be a vacancy in that office, the next qualified and available Justice who by seniority is next in rank to the Chief Justice shall be administrative head of all the courts in the [s]tate, and shall have general administrative and supervisory powers over all the courts”); La. Const., art. 5, § 5 (A) (“[t]he supreme court has general supervisory jurisdiction over all other courts”); Mo. Const., art. V., § 4 (1) (“[t]he supreme court shall have general superintending control over all courts and tribunals”); Mont. Const., art. VII, § 2 (2) (“[the supreme court] has general supervisory control over all other courts”); N.M. Const., art. VI, § 3 (“[t]he [s]upreme [c]ourt . . . shall have superintending control over all inferior courts”); Wis. Const., art. VII, § 3 (1) (“[t]he supreme court shall have superintending and administrative authority over all courts”).
The United States Supreme Court case law cited by Justice Palmer in his concurring opinion is not to the contrary. In Dickerson v. United States, 530 U.S. 428, 437, 120 S. Ct. 2326, 147 L. Ed. 2d 405 (2000), the Supreme Court noted its primacy over lower courts in prescribing rules of evidence that are constitutionally mandated. The code does not limit this court’s authority to enforce constitutional mandates and therefore does not conflict with this principle. To the extent that nonconstitutional rules of evidence are implicated, unlike under Connecticut law, the United States Supreme Court specifically is vested with authority to adopt rules of evidence by an act of Congress, subject to congressional approval. Id.; see generally J. Weinstein, Reform of Court Rule-Making Procedures (1977) c. II. D., pp. 55-61 (entitled “Historical Origins of the Rule-Making Power of Federal Courts”). In McNabb v. United States, 318 U.S. 332, 341, 63 S. Ct. 608, 87 L. Ed. 819 (1943), the Supreme Court simply addressed the proposition that is not in dispute here — that the highest court of ajurisdiction has supervisory authority to adopt rules that can bind lower courts.
Indeed, some United States Supreme Court justices have raised such concerns with respect to that court’s role in the approval of rules of procedure. See Order re Rules of Criminal Procedure, 323 U.S. 821, 821-22 (1944) (Frankfurter, J.) (“That the federal courts have power, or may be empowered, to make rules of procedure for the conduct of litigation has been settled for a century and a quarter .... And experience proves that justice profits if the responsibility for such rule-making be vested in a small, standing rule-making body rather than be left to legislation generated by particular controversies. . . . For the last fifty years the Justices have become necessarily removed from direct, day-to-day contact with trials in the district courts. To that extent they are largely denied the first-hand opportunities for realizing vividly what rules of procedure are best calculated to promote the largest measure of justice. These considerations are especially relevant to the formulation of rules for the conduct of criminal trials.” [Citation omitted.]). Justices Black and Douglas suggested in their statement in opposition to the Supreme Court’s submission of Rules of Civil Procedure to Congress for approval that Congress amend the law to substitute the Judicial Conference for the Supreme Court in the role of approving the rules. See Order re Rules of Civil Procedure, 374 U.S. 865 (1962). They noted that the court’s participation was peripheral in that the conference and its committees did the actual drafting of the rules and complained that it was improper for that court to approve rules and then later preside over constitutional challenges to those rules in adjudications. Id., 869-70. A prominent legal scholar has voiced similar concerns. See J. Weinstein, Reform of Court Rule-Making Procedures (1977) p. 147 (“Suggested Changes in National Rule-Making Process .... The Supreme Court should not adopt rules for any court except itself. The lack of trial experience and the heavy work load of its members give it little expertise in most of the fields regulated by rule and prevent adequate study of the issues. Although its imprimatur has the advantage of bestowing prestige on the rules, it inhibits the Supreme Court and other courts from impartially construing the rules in accord with the Constitution, statutes, and appropriate federal-state relationships.”). These statements further indicate that it would not violate some constitutional principle for the highest court of a jurisdiction to be limited to interpreting, and considering legal challenges to, a body of court rules promulgated by some other body than the highest court.
I recognize that stare decisis concerns may not bear directly on whether to overrule Sanseverino because this court properly could take similar action in light of the state’s timely motion for reconsideration that currently is pending before us. Such concerns do bear, however, on the effect of the majority’s decision, which is to overrule sub silentio the framework set forth and applied in Salamon, because that case differs from Sanseverino only in that the application of the framework in Salamon yielded a result that the majority seeks in the present case — avoiding a judgment of acquittal. See State v. Salamon, supra, 287 Conn. 549-50 n.34 (“[In Sanseverino, we] concluded that, because no reasonable juror could find that the restraint [the defendant] had imposed on [the victim] was not incidental to the commission of the sexual assault against [the victim], [the defendant] was entitled to a judgment of acquittal on the kidnapping charge. See [State v. Sanseverino, supra, 287 Conn. 625]. In the present case, by contrast, we cannot say that the evidence requires the conclusion that the defendant restrained the victim solely for the purpose of assaulting her; indeed, a juror reasonably could find that the assaultive conduct in which the defendant engaged was merely incidental to his restraint of the victim.”).
I recognize that a successful double jeopardy claim necessarily would result in a judgment of acquittal because the constitution mandates such a result, whereas we applied that framework in Salamon and Sanseverino due more to jurisprudential concerns.
“In reviewing the sufficiency of the evidence to support a criminal conviction we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135, 147, 939 A.2d 524 (2008).
The correctness of this conclusion is supported by the fact that, when the state filed a postappeal motion in response to our statement that we would be willing to consider such a motion; State v. Sanseverino, supra, 287 Conn. 625 n.16; it has not represented that it has any additional evidence to proffer.
Pursuant to our supervisory powers over the administration of justice and in the interests of judicial economy, appellate tribunals have discretion to construe the parties’ claims and resolve issues in a way that is different from the formal heading or discussion that they are given in a brief. See, e.g., Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 191-92, 884 A.2d 981 (2005) (“Upon review of the record and the briefs of the parties, and after due consideration of the claims raised by the parties at oral argument, we conclude that the certified question is not an adequate statement of the multiple issues raised by this appeal. Consequently, it is necessary to reformulate and to expand the certified question to reflect more accurately the issues presented. See, e.g., Stamford Hospital v. Vega, 236 Conn. 646, 648 n.1, 674 A.2d 821 [1996] [this court may modify certified questions to render them more accurate in framing issues presented].”).
General Statutes § 54-56 provides: “All courts having jurisdiction of criminal cases shall at all times have jurisdiction and control over informations and criminal cases pending therein and may, at any time, upon motion by the defendant, dismiss any information and order such defendant discharged if, in the opinion of the court, there is not sufficient evidence or cause to justify the bringing or continuing of such information or the placing of the person accused therein on trial.”
The effect of the majority’s conclusion that retrial in these cases is appropriate may, I fear, ultimately undermine one of the bases for our holding in Salamon, namely, that our previous interpretation of the kidnapping statute encouraged prosecutors “to include a kidnapping charge in any case involving a sexual assault or robbery.” State v. Salamon, supra, 287 Conn. 544. If the evidence in Sanseverino and the present case is not expressly deemed to be insufficient, I foresee much of the same overcharging of the crime of kidnapping in the future.
The victim wavered in her testimony as to whether the defendant had locked the door. Her testimony, however, indicated that she had left the room unimpeded and without the defendant’s assistance. Therefore, assuming that the door was locked, the only reasonable inference that could be drawn from the victim’s testimony is that the door was locked from the inside. Thus, the locked door no more restrained the victim from leaving than if it merely had been closed.
Even if I were to speculate as to some theory that the state might advance on retrial, such as that the victim was deceived into going to the room where the assault occurred, that theory is not supported by the facts or by law. The victim’s movement from the store office to the room where the assault occurred did not constitute a restraint, as there was no evidence that the defendant forced the victim to go there or used deception to trick her into going there. See General Statutes § 53a-91 (1). The victim testified that the defendant had told her to go to another room, which she could not identify despite the state’s probing; she did not indicate that he had given her any reason as to why he wanted her to do so. The state adduced no evidence as to what she believed his purpose to be in directing her there or even whether employees generally or she in particular would enter that room. Thus, there is no evidence that the defendant lied or created a ruse to get the victim to go to the room. Cf. State v. Smith, 198 Conn. 147, 152, 502 A.2d 874 (1985) (defendant lied to victim when stating that he needed her to show him entrance to highway but that he would return her home afterward in order to “lure the victim into his control” and “[deceive her] into remaining with him”). After the victim entered the room, there is no evidence that the defendant restricted her from leaving or from moving, other than when he removed her slacks and underwear. Cf. State v. Sanseverino, supra, 287 Conn. 625 (“[t]he defendant released [the victim] immediately after he had ejaculated”).
I note, however, that, even if the evidence had supported the conclusion that the defendant had “deceived” the victim into going to another room in the store and thereby established a restraint; General Statutes § 53a-91 (1) (A); that restraint still would not be of the substantial nature and character necessary to constitute an abduction. Because the defendant clearly could not sexually assault the victim out in the open aisle of the store in front of witnesses, to the extent that he restrained her by causing her to move to a room, the location of which the record reveals nothing about, this case is no different than if the defendant had ordered the victim into a nearby supply closet. Such restraint would have no independent criminal significance.
I note that the information did not charge the defendant with the restraint of an incompetent or minor person. The jury also was not charged as to the portion of the restraint statute that taires into account the mental competence of the victim.
“If we shadows have offended, Think but this, and all is mended, That you have but slumb’red here While these visions did appear. And this weak and idle theme, No more yielding but a dream, Gentles, do not reprehend. If you pardon, we will mend. And, as I am an honest Puck, If we have unearned luck Now to scape the serpent’s tongue, We will make amends ere long; Else the Puck a liar call. So, good night unto you all. Give me your hands, if we be friends, And Robin shall restore amends.” W. Shakespeare, A Midsummer Night’s Dream, act 5, sc. 1.
Opinion of the Court
Opinion
This case involves two separate certified appeals. First, the state appeals from the judgment of the Appellate Court reversing the conviction of the defendant, Carlos DeJesus, for kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A),
We conclude that the state’s appeal is governed by the principles recently articulated in State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008), wherein we determined that the crime of kidnapping requires an intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime.” Accordingly, the defendant is entitled to a new trial on the charge of kidnapping in the first degree wherein the jury properly is instructed on the element of intent. With respect to the defendant’s appeal, we conclude that, despite the adoption of the code by the judges of the Superior Court, the appellate courts of this state retain the authority to develop and change the rules of evidence through case-by-case common-law adjudication. In light of our recent clarification of the common scheme or plan exception in State v. Randolph, 284 Conn. 328, 933 A.2d 1158 (2007), we further conclude that evidence of uncharged misconduct admitted under
The jury reasonably could have found the following facts, as summarized by the Appellate Court. “At all pertinent times, the defendant was employed by a supermarket chain as a customer service manager. As part of his employment duties, the defendant was responsible for hiring individuals to work at the store. In August, 2000, he hired the nineteen year old victim,
“The defendant sexually assaulted the victim on two separate occasions in 2000. The first assault occurred when the defendant instructed the victim to go to the payroll room, which is located in the upper level of the store, to sit in a chair, to close her eyes and to open
“The second sexual assault committed by the defendant on the victim also occurred in the upper level of the store. After telling the victim to go to a room near his office, the defendant entered and proceeded to remove the victim’s pants and underwear and had her sit on a desk. The victim told the defendant that she did not want to do that, but he ignored her protests and remained silent. The defendant penetrated the victim’s vagina with his penis, causing her a great deal of discomfort. She was able to move away from him, replace her clothes and leave the room. The defendant did not say anything but looked angry as she left.
“The victim subsequently ended her employment at the supermarket but continued to shop at that particular location with her family. At some point in 2001, the defendant approached the victim and her father while they were shopping. In speaking with her father, the defendant indicated that the victim had been a ‘good worker’ and that he wanted her to resume her employment at the supermarket. The victim’s father, who at that time was unaware that the defendant had sexually abused his daughter, encouraged her to return to work. She agreed and was required to attend an orientation session prior to resuming her employment.
“Toward the end of June, 2001, the victim spoke with the defendant at the supermarket. He again instructed her to wait in an empty room located in the store’s upper level. The defendant entered the room and kissed
“The victim reported this incident to the police department, which commenced an investigation. The defendant, in an interview at the police station, initially denied having any sexual contact with the victim but then recanted and stated that any sexual activity between them was consensual.” State v. DeJesus, supra, 91 Conn. App. 50-52. Thereafter, the defendant was charged with two counts of sexual assault in the first degree in violation of § 53a-70 (a) (1), and two counts of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A).
During the defendant’s jury trial, “[t]he state sought to introduce into evidence the testimony of N, a young woman who had worked at the same store as the victim and who alleged that she also had been sexually assaulted by the defendant. The state proffered N’s testimony on the issues of intent and a common scheme or plan. The defendant objected on the grounds that the testimony was not relevant and that its probative value did not outweigh its prejudicial impact.
“The court held a hearing outside of the presence of the jury during which N testified and was cross-examined by defense counsel. At the conclusion of her testimony and after listening to argument by counsel, the court ruled that it would permit N to testify before the jury. The court stated that it would give a limiting instruction at the conclusion of N’s testimony and during the charge to the jury.
“In April, 2000, the defendant was on the upper level of the store, and N asked him to get her a new name tag and shirt after her shift had concluded. The defendant signaled her to follow him into a dark room, and, after she arrived, he proceeded to kiss and to touch her. He then grabbed her by the arms, turned her around and pressed his penis into her. The defendant restrained N so that she could not move while he rubbed against her. At some point, the defendant stopped and N turned around. She observed the defendant masturbating and declined his invitation to touch his penis. She recalled that the entire episode, from the time she entered the dark room until the defendant left, took approximately ten minutes. Following N’s testimony, the court gave the jury a limiting instruction.” Id., 52-53.
The jury found the defendant guilty of all of the offenses with which he was charged, and the trial court rendered judgment in accordance with the jury’s verdict. The trial court subsequently sentenced the defendant to a total effective term of imprisonment of twenty years, execution suspended after sixteen years, and ten years of special probation. Id., 52.
The defendant appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that: (1) § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the defendant’s conduct, which consisted of restraining the victim during the corarse of a sexual
With respect to the defendant’s second claim, the Appellate Court concluded that the trial court properly had admitted evidence of the defendant’s uncharged sexual misconduct with N under the intent and common scheme or plan exceptions to the prohibition on the admission of uncharged misconduct evidence because: (1) the charged crimes and uncharged misconduct had occurred within the same limited time period; id., 57, 60; (2) the charged crimes and uncharged misconduct had been perpetrated in a similar manner, in that the defendant had “used his supervisory authority to lure
I
We first address the state’s claim that a reasonable person would know that restraining a victim during the course of a sexual assault violates § 53a-92 (a) (2) (A) and, therefore, the Appellate Court improperly concluded that the kidnapping statute is unconstitutionally vague as applied to the second sexual assault in 2000. We conclude that the Appellate Court properly reversed the defendant’s conviction, but our reasoning differs from that of the Appellate Court. We conclude that the state’s appeal is governed by the statutory principles recently articulated by this court in State v. Salamon, supra, 287 Conn. 542, wherein we determined that the crime of kidnapping requires an intent “to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit [an underlying] crime.” Accordingly, we conclude that the defendant is entitled to a new trial on the charge of kidnapping in the first degree wherein the jury properly is instructed on the element of intent.
In Salamon, at the defendant’s request, we reexamined our long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to the commission of another crime, such as assault or robbery. Id., 528-48. Although the state relied on the doctrines of stare decisis and legislative acquiescence in support of its contention that we should not revisit our prior holdings, we were persuaded, after careful consideration of both doctrines, “that [they were] not sufficiently weighty to bar reconsideration of our prior precedent interpreting the kidnapping statutes.” Id., 519. In our analysis, we recognized that “all of our prior cases [had] relied on a literal application
Our inquiry in Salamon revealed that since 1977, our case law consistently has concluded that the offense of kidnapping requires proof of the element of intent only, and “does not require proof that the victim was confined for any minimum period of time or moved any minimum distance.” Id., 532. Our holdings were premised on the literal application of the statutory definitions of the terms “ ‘restrain,’ ”
As we stated in Salamon, that “point” is particularly significant “in a case not involving the secreting of a victim in a place that he or she is unlikely to be found . . . .” Id. In such cases, “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.” Id.
To resolve the ambiguity created by § 53a-91, we turned to “the common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, [and] we . . . conclude[d] the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accom
“Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For the purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim’s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense; whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from
Applying this standard to the facts of Salamon, we concluded that “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 by 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. In such circumstances, we cannot say that the defendant’s restraint of the victim necessarily was incidental to his assault of the victim. Whether the defendant’s conduct constituted a kidnapping, therefore, is a factual question for determination by a properly instructed jury.” Id., 549-50. Accordingly, we reversed the defendant’s kidnapping conviction and remanded the case for a new trial wherein the jury properly is instructed on the element of intent. Id., 550.
Indeed, our research has revealed that the appropriate remedy for the instructional impropriety identified in Salamon is to reverse the defendant’s kidnapping conviction and to remand the case to the trial court for a new trial. It is well established that instructional impropriety constitutes “trial error” for which the appropriate remedy is a new trial, rather than a judgment of acquittal. As the United States Supreme Court
The decision of the United States Court of Appeals for the Fourth Circuit in United States v. Ellyson, 326 F.3d 522 (4th Cir. 2003), also is instructive on this point. In Ellyson, the defendant was tried and convicted of possessing child pornography in violation of 18 U.S.C. § 2252A (a) (5) (B) and (b) (2) (2002), which prohibited the possession of an image that “appears to be of a minor engaging in sexually explicit conduct . . . .”18 U.S.C. § 2256 (8) (B) (2000); United States v. Ellyson, supra, 525. Following the defendant’s conviction, the United States Supreme Court issued its decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S. Ct. 1389, 152 L. Ed. 2d 403 (2002), wherein it determined that § 2256 (8) (B) “abridges the freedom to engage in a substantial amount of lawful speech” and, therefore, “is overbroad and unconstitutional.” Id., 256. In light of Free Speech Coalition, the Fourth Circuit Court of Appeals vacated the defendant’s conviction because the jury had been instructed improperly on the definition of child pornography. United States v. Ellyson, supra, 530 (“Of course, the district court did not have the benefit of Free Speech Coalition at the time it issued
We next address the appropriate remedy. The defendant does not challenge the sufficiency of the evidence to support his kidnapping conviction under the law as it existed prior to Salamon. Indeed, such a claim would fail because, under State v. Luurtsema, supra, 262 Conn. 201-203, the defendant’s restraint of the victim is sufficient to support a kidnapping conviction as long as it is accompanied by the requisite intent, even if such restraint is “integral or incidental to the crime of sexual assault . . . .” (Internal quotation marks omitted.) Id.,
n
We next address the defendant’s claim that this corut has the authority to reconsider the liberal standard for the admission of uncharged sexual misconduct evidence in sexual assault cases despite the adoption of the code by the judges of the Superior Court codifying the common-law rules of evidence. The defendant claims that the liberal standard of admission should be overruled because it is inadequate to demonstrate the existence of a genuine plan in the defendant’s mind, and crimes of a sexual nature are neither more secretive, aberrant nor pathological than crimes of a nonsexual nature. We agree with the defendant that the adoption of the code did not divest this court of its inherent common-law adjudicative authority to develop and change the rules of evidence on a case-by-case basis. We further agree with the defendant that, in light of our recent clarification of the nature and scope of the
Before addressing the merits of the defendant’s claim, we review our jurisprudence regarding the admissibility of evidence of uncharged misconduct. “As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused. . . . Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior. . . . On the other hand, evidence of crimes so connected with the principal crime by circumstance, motive, design, or innate peculiarity, that the commission of the collateral crime tends directly to prove the commission of the principal crime, is admissible. The rules of policy have no application whatever to evidence of any crime which directly tends to prove that the accused is guilty of the specific offense for which he is on trial. . . . We have developed a two part test to determine the admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. . . . Second, the probative value of the evidence must outweigh its prejudicial effect. . . . Because of the difficulties inherent in this balancing process, the trial court’s decision will be reversed only whe[n] abuse of
“The standard by which the admissibility of evidence of uncharged misconduct is measured generally will depend on two factors: the purpose for which the evidence is offered, and the type of crime with which the defendant has been charged. For example, when a defendant is charged with a sex crime and evidence of uncharged sexual misconduct is offered to establish that the defendant had a common scheme or plan to engage in sex crimes, the admissibility of the proffered evidence is evaluated pursuant to a liberal standard.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 340-41. Thus, in sexual assault cases “[e]vidence of prior sex offenses committed with persons other than the prosecuting witness is admissible to show a common design or plan [when] the prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 631, 930 A.2d 628 (2007).
“In cases that do not involve sex crimes . . . however, we apply a more stringent standard to determine whether evidence of uncharged misconduct is admissible to establish a common scheme or plan.” State v. Randolph, supra, 284 Conn. 341. Uncharged misconduct evidence is admissible in nonsex crime cases “only if it supports a permissive inference that both crimes were related to an overall goal in the defendant’s mind.” (Emphasis added; internal quotation marks omitted.) Id., 356.
With this background in mind, we turn first to the predicate question of whether the code codified the
Subsection (a) of § 4-5 of the code provides that “[e]vidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person.” Subsection (b) of § 4-5 of the code provides, however, that “[e]vidence of other crimes, -wrongs or acts of a person is admissible for purposes other than those specified in subsection (a),
Having concluded that the liberal standard for the admission of uncharged sexual misconduct evidence in sex crime cases has been codified in the code, we next address whether we have the authority to reconsider this standard. As previously explained, one purpose of the code, as stated in the commentary to § 1-2 (a), is to codify the common law and certain identified statutory rules of evidence as rules of court and to place them “into a readily accessible body of rules to which the legal profession conveniently may refer.” Section 1-2 (a) of the code provides that a second stated purpose is “to promote the growth and development of the law of evidence through interpretation of the [c]ode and through judicial rule making to the end that the truth may be ascertained and proceedings justly determined.” (Emphasis added.) Although it is clear that the judges of the Superior Court intended the law of evidence to grow and develop in the future through “interpretation of the [c]ode” and through “judicial rule making,” the meaning of these two terms in § 1-2 (a) is unclear.
We begin our analysis with the term interpretation. On the one hand, because the process of interpretation commonly is understood to mean to explain or to construe; American Heritage Dictionary of the English Language (3d Ed. 1992); it could be argued that this term was intended to limit the common-law authority of the
Likewise, the meaning of the term “judicial rule making” in § 1-2 (a) is equally unclear. Although the term reasonably may be construed to refer to codified rules of court adopted by vote of the judges of the Superior Court, the commentary to § 1-2 (a) indicates that the term should be construed broadly to include all evidentiary law developed by the judicial branch, regardless of whether it derives from an administrative or an adjudicative source. For example, the commentary to § 1-2 provides that “[b]ecause the [c]ode was intended to
“By letter dated October 24, 1991, the co-chairmen of the Judiciary Committee of the General Assembly requested that the Connecticut Law Revision Commission (commission), study ‘the feasibility of the legislative enactment of an evidence code’ and that the study ‘include a draft bill for an evidence code.’ ”
“The drafting committee completed its work in September, 1997. After receiving public comment, the drafting committee submitted its work product to the . . . [commission, which voted to adopt the proposed code and commentary in December, 1997. Thereafter, the proposed code and commentary were submitted to the Judiciary Committee of the General Assembly for consideration during the 1998 legislative session. Before commencement of the session, however, certain members of the General Assembly had suggested that, for various reasons, a code of evidence should be adopted, if at all, by the judges of the Superior Court pursuant to their rule-making authority rather than by legislation. Thus, the Judiciary Committee urged then Supreme Court Chief Justice Robert J. Callahan to have the
As the foreword to the code explains, “[i]n response, Chief Justice Callahan appointed a committee to con
“An oversight committee was created by the judges of the Superior Court when they adopted the [c]ode, for the purpose of monitoring the development of the [c]ode and making recommendations for future revision and clarification. The current membership of the committee includes: Justice Katz (chair), Superior Court Judges Bishop, Corradino, Beverly J. Hodgson, Kavanewsky, Koletsky, and Michael R. Sheldon, attorneys Adelman, Bruckmann, Gill, Jack G. Steigelfest, Wiechmann, and Levine . . . and Professor Tait. The oversight committee convened in October, 1999, and recommended minor changes to the [c]ode and commentary based primarily on recent developments in the law. Those recommended changes were approved by the Rules Committee in October, 1999, then by the judges of the Superior Court in November, 1999, and ultimately were incorporated into the final version of the [c]ode,” which became effective on January 1, 2000.
The foregoing history reflects that the code was intended to provide the bench and the bar with a concise and authoritative restatement of the state’s common
The foregoing history does not support the conclusion, however, that the code was intended to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication. The transcript of the June 28,1999 annual meeting of the judges of the Superior Court, at which the code was adopted, indicates that Justice Borden explained the purpose of the code as follows: “the rationale behind the [c]ode is, that it will be more efficient for all in the litigation process to have a [c]ode stated in a concise and familiar form to which to refer.” There was no discussion of the effect, if any, that adoption of the code would have upon this court’s common-law adjudicative authority to change and develop evidentiary law on a case-by-case basis, an inherent authority that it has enjoyed since the seventeenth century.
In the absence of any discussion at the meeting of the judges of the Superior Court concerning the impact that adoption of the code would have on the future development of evidentiary law, it is illogical to conclude that, by adopting the code for the purposes of ease and convenience, the judges intended to divest this court of its long-standing inherent common-law adjudicative authority over evidentiary law. Cf. State v. Skakel, 276 Conn. 633, 779, 888 A.2d 985 (2006) (Katz, J., concurring) (“[i]t simply runs counter to reason to conclude that the legislature intended to impose, for the first time in the state’s history, a statute of limitations on all murders except those committed under the five limited circumstances constituting capital felonies—
In light of the ambiguous language of the code, the dearth of extratextual evidence indicating the intent of the judges of the Superior Court,
Moreover, our construction of the code is consistent with our duty to interpret statutes in a manner that avoids placing them in constitutional jeopardy; see, e.g., State v. Metz, 230 Conn. 400, 422-23, 645 A.2d 965
Article fifth, § 1, of the constitution of Connecticut, as amended by article twenty, § 1, of the amendments provides: “The judicial power of the state shall be vested in a supreme court, an appellate court, a superior court, and such lower courts as the general assembly shall, from time to time, ordain and establish. The powers and jurisdiction of these courts shall be defined by law.” “It is especially significant that unlike the judicial articles of most state constitutions and that of the United States constitution (article III), the powers and jurisdiction of the two courts [originally] specifically named in the Connecticut constitution (the Supreme and Superior Courts) are not specified. The reason is
Accordingly, under article fifth, § 1, the Superior Court is a court of general jurisdiction with ultimate authority over the trial of causes, whereas the Supreme Court is a court of limited appellate jurisdiction with ultimate authority over the correction of errors of law. See, e.g., State v. Nardini, 187 Conn. 109, 126, 445 A.2d
Under the common law of this state prior to 1818, as under the common law of England, the ultimate authority over the rules and standards governing the admissibility of evidence rested with the highest court of the state. See, e.g., Chapman v. Chapman, 2 Conn. 347-50, 349 (1817) (trial court improperly admitted hearsay evidence); Townsend v. Bush, 1 Conn. 260 (1814) (trial court improperly excluded testimony of competent witness); Phelps v. Yeomans, 2 Day (Conn.) 227 (1806) (trial court properly excluded evidence in action for ejectment); see also Z. Swift, A Digest of the Law of Evidence in Civil and Criminal Cases and a Treatise on Bills of Exchange, and Promissory Notes (1810), p. viii. (“decisions of [c]ourts of dernier resort in this [s]tate” are “binding authority”). Although the Superior Court possessed broad discretion in determining the admissibility of evidence under the facts and circumstances of each individual case, this discretion necessarily was constrained by the law of evidence
Because this court had final and binding authority over the law of evidence prior to 1818, and because the common-law authority of the Supreme Court and the Superior Court was codified in article fifth, § 1, of the constitution of 1818, we question whether the judges of the Superior Court have the constitutional authority
Having concluded that we have the authority to modify the common-law rules of evidence codified in the code, we next address whether we should exercise our authority under the circumstances of the present case. The defendant claims that the liberal standard by which evidence of uncharged misconduct is admitted in sexual assault cases under the common scheme or plan exception should be reconsidered and rejected because it fails to establish the existence of a genuine plan in the defendant’s mind. Additionally, the defendant claims that evidence of uncharged misconduct should not be admitted more liberally in sex crime cases than in non-sex crime cases because crimes of a sexual nature are neither more secretive, aberrant nor compulsive than crimes of a nonsexual nature. In light of this court’s recent clarification of the nature and scope of the common scheme or plan exception in State v. Randolph, supra, 284 Conn. 328, we conclude that evidence of uncharged misconduct admitted under the liberal standard ordinarily does not reflect the existence of a genuine common scheme or plan in the defendant’s mind.
We begin our analysis with the general purpose and scope of the common scheme or plan exception, as recently clarified in State v. Randolph, supra, 284 Conn. 342. “Evidence of uncharged misconduct, although inadmissible to prove a defendant’s bad character or propensity to engage in criminal behavior, is admissible [t]o prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. . . . To prove the existence of a common scheme or plan, each crime must be an integral part of an overarching plan explicitly conceived and executed by the defendant or his confederates. . . . Evidence of such a plan is relevant to the charged crime because it bears on the defendant’s motive, and hence the doing of the criminal act, the identity of the actor, and his intention, where any of these is in dispute.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id.
In Randolph, we identified two categories of cases in which evidence of uncharged misconduct properly
“In the second category, which consists of signature cases, this court concluded that evidence of uncharged misconduct was admissible to establish the existence of a common scheme or plan because the factual characteristics shared by the charged and uncharged crimes were sufficiently distinctive and unique as to be like a signature and, therefore, it logically could be inferred that if the defendant is guilty of one [crime] he must be guilty of the other.” (Internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 347. In Randolph, we took the opportunity to explain “why we employ
We cautioned, however, that “[although this permissive inference may arise in some, if not many [signature] cases ... it will not arise in all cases. As the Washington Court of Appeals aptly observed, [something more than the doing of similar acts is required in evidencing design, as the object is not merely to negative an innocent intent, but to prove the existence of a definite project, directed toward the completion of the crime in question. . . . Thus, when seeking to admit evidence pursuant to the common scheme or plan exception, it is not enough to show mere similarity between the [charged and uncharged] crimes . . . because [s]tand
It is clear that, pursuant to Randolph, the touchstone of the common scheme or plan exception is the existence of an overall scheme or plan in the defendant’s mind that encompasses the commission of both the charged and uncharged crimes. Thus, “it is not enough to show mere similarity between the [charged and uncharged] crimes . . . because [standing alone, a series of similar acts does not establish the existence of a true plan.” (Citation omitted; internal quotation marks omitted.) Id., 355.
With these principles in mind, we turn to the liberal standard by which evidence of uncharged misconduct is admitted to establish the existence of a common scheme or plan in sex crime cases. It is well established that, in such cases, “[t]here is a greater liberality . . . in admitting evidence of other criminal acts to show a common scheme, pattern or design . . . .” (Internal quotation marks omitted.) State v. Sawyer, supra, 279 Conn. 349. Evidence of uncharged misconduct is admissible “if the offense is proximate in time, similar to the offense charged, and committed with persons similar to the prosecuting witness.” (Emphasis added; internal quotation marks omitted.) Id.; see, e.g., State v. Jacobson, supra, 283 Conn. 633 (trial court properly admitted uncharged misconduct evidence to prove
Nonetheless, we recognize that strong public policy reasons continue to exist to admit evidence of uncharged misconduct more liberally in sexual assault cases than in other criminal cases. As we observed in State v. Merriam, supra, 264 Conn. 669-71, “[f]irst, in sex crime cases generally, and in child molestation cases in particular, the offense often is committed surreptitiously, in the absence of any neutral witnesses.
We conclude that these public policy considerations militate in favor of recognizing a limited exception to the prohibition on the admission of uncharged misconduct evidence in sex crime cases to prove that the defendant had a propensity to engage in aberrant and compulsive criminal sexual behavior.
We caution, however, that “our approach does not vest trial courts with carte blanche to allow the state to introduce any prior sexual misconduct evidence against an accused in sex crime cases.” State v. Mer
Second, evidence of uncharged misconduct is admissible only if its probative value outweighs “the prejudicial effect that invariably flows from its admission.” State v. Merriam, supra, 264 Conn. 671; cf. United States v. LeMay, 260 F.3d 1018, 1026 (9th Cir. 2001) (evidence of uncharged misconduct admitted under rule 414 of Federal Rules of Evidence subject to probative versus prejudicial balancing under rule 403 of Federal Rules of Evidence), cert. denied, 534 U.S. 1166, 122 S. Ct. 1181, 152 L. Ed. 2d 124 (2002). In balancing the
Lastly, to minimize the risk of undue prejudice to the defendant, the admission of evidence of uncharged sexual misconduct under the limited propensity exception adopted herein must be accompanied by an appropriate cautionary instruction to the jury.
Turning to the facts of the present case, we conclude that, although evidence of the defendant’s uncharged misconduct with N was inadmissible to prove the existence of a “true” common scheme or plan in the defendant’s mind, it was admissible to prove that the defendant had a propensity or a tendency to sexually assault young women of limited mental ability with whom he worked and over whom he had supervisory
Because the uncharged misconduct evidence was admitted pursuant to the common scheme or plan
In sum, evidence of uncharged sexual misconduct properly may be admitted in sex crime cases to establish that the defendant had a tendency or a propensity to engage in aberrant and compulsive criminal sexual behavior if: (1) the trial court finds that such evidence is relevant to the charged crime in that it is not too remote in time, is similar to the offense charged and is committed upon persons similar to the prosecuting witness; and (2) the trial court concludes that the probative value of such evidence outweighs its prejudicial effect. In assessing the relevancy of such evidence, and in balancing its probative value against its prejudicial
The judgment of the Appellate Court is reversed with respect to the direction to render judgment of not guilty of kidnapping in the first degree under count four of the information and the case is remanded to that court with direction to remand the case to the trial court for a new trial on that count; the judgment is affirmed in all other respects.
General Statutes § 53a-92 provides in relevant part: “(a) A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually
We granted the state’s petition for certification to appeal from the judgment of the Appellate Court limited to the following issue: “Did the Appellate Court properly conclude that no reasonable person could have known that the defendant’s conduct would violate the statute defining kidnapping in the first degree?” State v. DeJesus, 279 Conn. 912, 912-13, 903 A.2d 658 (2006).
General Statutes § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person . . .
We granted the defendant’s petition for certification to appeal from the judgment of the Appellate Court limited to the following issue: “Does this court, or any court, have the authority in light of the Connecticut Code of Evidence, to reconsider the rule that the introductions of prior sexual misconduct of the defendant in sexual assault cases, is viewed under a relaxed standard?” State v. DeJesus, 279 Conn. 912, 903 A.2d 658 (2006).
In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
“Counts three and four of the information charged the defendant with sexual assault and kidnapping stemming from his conduct that occurred in 2000. The court instructed the jury that it could convict the defendant on the basis of either incident but that it was required to agree unanimously on the same incident.” State v. DeJesus, supra, 91 Conn. App. 51 n.2.
The defendant also claimed that the trial court improperly had: (1) denied him due process of law by providing “the jury with an incorrect statement of the common scheme or plan exception during its charge and improperly [allowing] the state to refer to N and the victim as ‘borderline retarded’ and ‘intellectually limited’ State v. DeJesus, supra, 91 Conn. App. 66-66; (2) “refused to conduct an in camera review of the victim’s confidential records from a rape crisis center to determine if they contained any evidence concerning her testimonial capacity and ability to perceive, to recall and to relate the events at issue”; id., 70; and (3) denied the defendant’s motion to suppress certain statements made to the police because these statements had been made during the course of a custodial interrogation and the defendant had not been informed of his Miranda rights. Id., 77-83; see Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The Appellate Court rejected each of these claims, concluding that: (1) the defendant’s unpreserved instructional claim was not of constitutional magnitude and, therefore, the defendant could not prevail under the second prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989); State v. DeJesus, supra, 65-70; (2) the trial court had not abused its discretion by denying the defendant’s request for an in camera review of the victim’s confidential records because the defendant failed to establish “through the testimony of those persons with knowledge of the records, a factual basis from which the court could conclude that the records would reveal that, at the relevant time, the victim’s testimonial capacity was affected so as to warrant further inquiry”; id., 75; and (3) the trial court properly denied the defendant’s suppression motion because “as a matter of law . . . the defendant’s interview ... at the police station cannot be construed as having been custodial at any point.” Id., 81. The Appellate Court’s resolution of these claims is not at issue in the present appeal.
The Appellate Court noted that, “[c]ount four of the information charged the defendant with kidnapping in the first degree stemming from events that occurred in 2000. There was evidence adduced at trial concerning two sexual assaults and two kidnappings that occurred during this time period. . . . [T]he [trial] corut instructed the jury that it could convict on count four as long as it agreed on the same kidnapping. Of course, the defendant is unable to clarify a general verdict, and, therefore, it is unknown specifically which 2000 events formed the basis of the conviction with respect to count four. . . . Accordingly, the defendant would be wrongly convicted if he was convicted under an alternative basis for which there was no evidence, and a conviction cannot stand unless both of the alternate bases for the conviction are constitutional. ... A conviction must be set aside if one of the alternate grounds supporting the verdict is unconstitutional or if one is not sufficiently supported by the evidence.” (Citations omitted; internal quotation marks omitted.) State v. DeJesus, supra, 91 Conn. App. 95 n.18. In light of the Appellate Court’s conclusion that § 53a-92 (a) (2) (A) is unconstitutionally vague as applied to the defendant’s conduct during the second sexual assault in 2000, it did not determine “whether the facts concerning the first assault in 2000 could also support a kidnapping conviction.” Id., 98.
The rule announced in Salamon applies here because the present case was pending when this court articulated a new construction of the kidnapping statutes in Salamon. Marone v. Waterbury, 244 Conn. 1, 10-11, 11 n.10, 707 A.2d 725 (1998) (citing cases recognizing long-standing presumption that rule enunciated in case applies retroactively to pending cases).
General Statutes § 53a-91 (1) defines the term “ ‘[Restrain’ ” as “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 (2) defines the term" ‘[a]bductf ” as “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.”
In State v. Salamon, supra, 287 Conn. 532 n.21, we also noted that “[a] challenge to a kidnapping conviction predicated on such miniscule movement or duration of confinement remains viable on constitutional grounds under the [void for] vagueness doctrine.”
We note, as of the date of the release of this decision, a motion for reconsideration of our decision in Sanseverino was pending before this court. We will consider the merits of that motion in due course.
The dissent contends that, by overruling our determination in Sanseverino that the appropriate remedy was a judgment of acquittal, rather than a new trial, we violate the doctrine of stare decisis. We disagree. Stare decisis “is not an end in itself. . . . Experience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. . . . The flexibility and capacity of the common law is its genius for growth and adaptation. . . . Indeed, [i]f law is to have current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. . . . [Thus] [t]his court . . . has recognized many times that there are exceptions to the rule of stare decisis.” (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 691, 888 A.2d 985, cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006). In light of the inescapable logic and persuasive reasoning of Burks v. United States, supra, 437 U.S. 15, United States v. Ellyson, supra, 326 F.3d 532-33, and United States v. Pearl, supra, 324 F.3d 1214, we are compelled to conclude that Sanseverino was wrongly decided.
Indeed, the dissent appears to concede that the nature of the defendant’s claim in Sanseverino was not truly one of insufficiency of the evidence
In light of the statutory principles recently articulated by this court in Salamon, we need not address the state’s claim that the Appellate Court improperly concluded that the kidnapping statute is void for vagueness as applied to restraints that are necessary for or incidental to the commission of a separate underlying crime. See State v. DeJesus, supra, 91 Conn. App. 97.
As we previously have observed, the code “cannot be properly understood without reference to the accompanying [cjommentary. The [cjommentary provides the necessary context for the text of the [cjode, and the text of the [cjode expresses in general terms the rules of evidence that the cases cited in the [cjommentary have established. . . . Additionally, the [¡Judges took an unusual step when they formally adopted the [cjode. Unlike other situations, in which the [jjudges, when voting on rules, are guided by but do not formally adopt the commentary submitted by the [rjules [cjommittee that normally accompanies proposed rule changes, in adopting the [cjode the [jjudges formally adopted the [cjommentary as well. This is the first time that the [jjudges have done so. Thus, the [cjode must be read together with its [cjommentary in order for it to be fully and properly understood.” (Citation omitted; internal quotation marks omitted.) State v. Pierre, 277 Conn. 42, 60, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006); see also Daley v. McClintock, 267 Conn. 399, 408, 838 A.2d 972 (2004); D. Borden, “The New Code of Evidence: A (Very) Brief Introduction and Overview,” 73 Conn. B.J. 210, 212 (1999).
Subsection (b) of § 1-2 of the code, entitled “[slaving clause,” also supports a broad construction of subsection (a). Subsection (b) of § 1-2 of the code provides: “Where the [e]ode does not prescribe a rule governing the admissibility of evidence, the court shall be governed by the principles of the common law as they may be interpreted in the light of reason and experience, except as otherwise required by the constitution of the United States, the constitution of this state, the General Statutes or the Practice Book. The provisions of the [c]ode shall not be construed as precluding any court from recognizing other evidentiary rules not inconsistent with such provisions.” The commentary to § 1-2 (b) of the code explains that “[sjubsection (b) addresses the situation in which courts are faced with evidentiary issues not expressly covered by the [c]ode. Although the [c]ode will address most evidentiary matters, it cannot possibly address every evidentiary issue that might arise during trial. Subsection (b) sets forth the standard by which courts are to be guided in such instances.
“Precisely because it cannot address every evidentiary issue, the [c]ode is not intended to be the exclusive set of rules governing the admissibility of evidence. Thus, subsection (b) makes clear that a court is not precluded from recognizing other evidentiary rules not inconsistent with the [c]ode’s provisions.” (Emphasis added.)
First, subsection (b) of § 1-2 governs “evidentiary issue[s] that might arise during trial" and, therefore, is applicable exclusively to the Superior Courts, rather than to the Appellate Court or to this court. (Emphasis added.) Conn. Code Evid. § 1-2 (b), commentary. As § 1-1 (b) of the code specifies, “[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.” Second, subsection (b) of § 1-2 clarifies that,
The commission is a part of the legislative branch and is composed of representatives from the General Assembly, the judiciary, members of the bar and the faculty of accredited law schools within the state. See General Statutes §§ 2-85 and 2-86. The duties of the commission include, but are not
“By letter dated March 3, 1998, the then co-chairs of the Judiciary Committee wrote to Chief Justice . . . Callahan, as follows:
“Dear Justice Callahan,
“As I am sure you are aware, since 1993 a drafting committee of the . . . [cjommission has been preparing a code of evidence to codify existing Connecticut case law. The drafting committee was chaired by Associate Justice . . . Borden and included a highly distinguished panel of Connecticut legal scholars and practitioners, including Justice . . . Katz, Judges . . . Aurigemma . . . Freed, and . . . Koletsky, and Professor . . . Tait, co-author of Handbook of Connecticut Evidence. The drafting committee completed its work in December 1997 and the proposed code has now been approved for promulgation by the . . . [commission.
“As [c]ochairmen of the [j]udiciary [cjommittee, we believe that the proposed code accurately encompasses Connecticut’s rules of evidence in a form that will be most useful to litigating attorneys and presiding judges. We also believe that the code would more appropriately be promulgated as rules of court rather than as legislation of the Connecticut General Assembly. The code reflects existing court-made law and must, in the future, remain responsive to judicial concerns. We are, therefore, submitting the proposed code for consideration and possible adoption of the Judicial Department.
“Because adoption of an appropriate code, whether by rule of court or by legislation, is of vital importance, we have a continuing interest in any action that is taken with respect to this proposal. Would you, therefore, kindly advise us prior to the 1999 legislative session of any action that the Judicial Department may be taking or intending to take with respect to the code at that time? We are, of course, available to discuss this matter further. . . .
“Sincerely,
“Senator Donald E. Williams, Jr.
“Representative Michael P. Lawlor
“Cochairmen, Connecticut Judiciary Committee . . . .” C. Tait & E. Prescott, supra, § 1.1.3, pp. 8-9.
The dissent states that “it is well-known that, as chair of both the evidence code drafting committee and the Practice Book rules committee, Justice Borden spent many hours at judges’ association meetings explaining the code prior to his official presentation. Thus, his statements at the official meeting reasonably should be viewed as a summation, not a comprehensive discussion of all of the ramifications of adoption of the code.” First, such information hardly can be characterized as “well-known,” given that there is no public record of Justice Borden’s appearance at any judges’ association meetings. Second, divesting this court of its inherent common-law and constitutional ac[judicative authority over evidentiary law, an authority which this court has epjoyed since its inception, is not a minor or picayune detail. One would assume that, at a minimum, such a sweeping consequence would merit a brief mention in Justice Borden’s summation concerning the purpose and impact of the code.
Anecdotal extratextual evidence reflects that the judges of the Superior Court, all of whom voted to adopt the code, may have had conflicting understandings of the impact that adoption of the code would have on the future development of evidentiary law. Shortly after the code became effective, several attorneys expressed concern that the code will “[freeze] the common law” and “slow the growth of evidentiary law . . . .” J. Turner, supra, 26 Conn. L. Trib. 10. Although “both attorneys and judges” expressed their views at that time that “judges no longer will be free to develop the law on a case-by-case basis using the common law,” then Supreme Court Justice Borden opined that “the benefits [of the code] outweigh the costs.”
“[W]hen a statute is in derogation of common law ... it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. ... In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed. . . . The rule that statutes in derogation of the common law are strictly construed can be seen to serve the same policy of continuity and stability in the legal system as the doctrine of stare decisis in relation to case law.” (Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 426-27, 927 A.2d 843 (2007).
We recognize that, in State v. Sawyer, supra, 279 Conn. 331-32 n.1, we stated in dicta and without analysis that, “since 2000, the year in which the [code] was adopted, the authority to change the rules of evidence lies with the judges of the Superior Court in the discharge of their rule-making function. Of course, prior to that date, changes to substantive evidentiary rules were accomplished by our courts in the exercise of their common-law authority. To the extent that our evidentiary rules may be deemed to implicate substantive rights, we believe that it is unclear whether those rules properly are the subject of judicial rule making rather than the subject of common-law adjudication. Because that question raises an issue on which we did not request briefing by the parties, however, we leave it for another day. ” Because our statement in Sawyer was dicta, it is not binding precedent and, therefore, does not dictate the outcome of the present appeal. See, e.g., Tele Tech of Connecticut Corp. v. Dept. of Public Utility Control, 270 Conn. 778, 810, 855 A.2d 174 (2004). To the extent that we indicated in Sawyer, however, that “the authority to change the rules of evidence lies
Because the code merely restated the prevailing common-law evidentiary rules, which the judges of the Superior Court already were bound to apply, and was intended to expedite and streamline judicial proceedings by serving as a shorthand reference to those rules, the code clearly was intended to be binding authority in the Superior Court. Section 1-1 (b) of the code specifically states that “[t]he [c]ode applies to all proceedings in the superior court in which facts in dispute are found, except as otherwise provided by the [c]ode, the General Statutes or the Practice Book.” The code therefore differs fundamentally from a treatise or handbook, which has persuasive value only. The question presented in this appeal, however, is not whether the code is binding authority in the Superior Court, but, rather, whether it is binding authority in this court such that we are precluded from reconsidering our own prior precedent codified in the code. For the reasons explained in the body of this opinion, we conclude that the judges of the Superior Court did not intend their adoption of the code to divest this court of its inherent authority to change and develop the law of evidence via case-by-case common-law adjudication.
The dissent repeatedly analogizes the evidentiary rales codified in the code to statutes promulgated by the legislature and maintains that this court’s authority to modify or overrule the code necessarily is commensurate with its authority to modify or overrule a statute. The dissent’s analogy is inapt, however. First, this court’s authority to modify or overrule a statute is limited by the separation of powers provisions of the state and federal constitutions. See, e.g., State v. Courchesne, 262 Conn. 537, 580, 816 A.2d 562 (2003) (under separation of powers provisions of state and federal constitutions “the task of the legislative branch is to draft and enact statutes, and the task of the judicial branch is to inteipret and apply them in the context of specific cases”). Because the present case involves the allocation of authority within a single branch of government, rather than the division of authority between two or more branches of government, however, the limitations imposed by those provisions are inapplicable. Second, in claiming that the code is inviolate simply because it is a code, the dissent engages in a tautological exercise that presupposes the answer to the question with which we are presented, namely, in enacting the code, did the judges of the Superior Court intend to divest this court of its inherent authority to change and develop the law of evidence through case-by-case common-law adjudication? Because we answer this predicate question in the negative, our analysis necessarily ends where the dissent’s analysis begins.
Article fifth, § 1, as codified in the state constitution of 1818 provided that: “The judicial power of the state shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall, from time to time, ordain and establish: the powers and jurisdiction of which courts shall be defined by law.” “The 1965 constitution changed this provision by deleting the words ‘of errors’ in the title of the Supreme Court, by changing the word ‘inferior’ to ‘lower’ in defining what courts could be established by the General Assembly, and by replacing the colon after ‘establish’ with a period and the word ‘which’ by the word ‘these.’ ” Szarwak v. Warden, 167 Conn. 10, 29, 355 A.2d 49 (1974). These changes were technical in nature and were not intended to alter, or in any way materially change, the jurisdiction or composition of the “constitutional courts,” the Supreme Court and the Superior Court. Id., 34-36; see also Adams v. Rubinow, 157 Conn. 150, 156, 251 A.2d 49 (1968). In 1982, article fifth, § 1, was amended by article twenty, § 1, of the amendments, which created a third constitutional court, the Appellate Court.
Nothing in this opinion should be construed to restrict the trial court’s broad discretion to admit or exclude evidence “if premised on a correct view of the law . . . .” State v. Saucier, supra, 283 Conn. 218. We conclude only that, under article fifth, § 1, of the state constitution, it is the province of this court, rather than the Superior Court, ultimately to determine what the correct view of the law is.
Likewise, we question whether the judges of the Superior Court have the constitutional authority to adopt a code of evidence that is inconsistent with the legal principles promulgated by the Appellate Court, to the extent that such principles are consistent with the decisions of this court, or to divest the Appellate Court of its power to develop and change the law of evidence via case-by-case abdication. Accordingly, we conclude that the evidentiary rules delineated in the code are subject to change, modification, alteration or amendment by the Appellate Court in the exercise of its constitutional and common-law adjudicative authority, to the extent that such a change, modification, alteration or amendment is not inconsistent with the prior decisions of this court. See Hopkins v. Commissioner of Correction, 95 Conn. App. 670, 672, 899 A.2d 632 (“[a]s an intermediate appellate court,” the Appellate Court is “bound by Supreme Court precedent and [is] unable to modify it”), cert. denied, 279 Conn. 911, 902 A.2d 1071 (2006).
The dissent speculates that “the result in this case may motivate the legislature to follow through on previously contemplated action to bring the rules of evidence under the supervision of that body, which the majority
See 3 Day (Conn.) 28-29 (1808) (adopting rules pertaining to jury instructions, bills of exceptions and motions for new trial); 4 Day (Conn.) 119 (1809) (adopting rules pertaining to attorneys seeking admission to practice law and specifying that motion for new trial must state facts on which motion is grounded); 5 Day (Conn.) 180 (1811) (ordering certain limitations to rule established in June, 1809, regarding admission of attorneys to practice of law).
We recognize, however, that “the rules of evidence . . . have never in this state been regarded as exclusively within the judicial domain. Over a period of many years, the legislature has enacted various statutes modifying the rules of evidence prevailing at common law .... These changes have been accepted by our courts and have never been challenged as violating the principle of separation of powers.” State v. James, 211 Conn. 555, 560, 560 A.2d 426 (1989); see also State v. Kulmac, supra, 230 Conn. 52 (“[t]he rules pertaining to the admissibility of evidence in Connecticut are subject to the exercise of both judicial and legislative authority”).
Rule 413 (a) of the Federal Rules of Evidence provides: “In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.”
Rule 414 (a) of the Federal Rules of Evidence provides: “In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant’s commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.”
The defendant claims, however, that “many heinous crimes take place out of sight” and that “the use of special rules of evidence for sexual assault victims is a form of paternalism that only serves to perpetuate sexist stereotypes that a woman’s testimony alone is an insufficient basis for a sexual assault conviction.” The defendant fails to cite any authority or to provide any analysis in support of this claim and, therefore, we decline to review it. See State v. T.R.D., 286 Conn. 191, 213-14 n.18, 942 A.2d 1000 (2008) (“We repeatedly have stated that [w]e are not required to review issues that have been improperly presented to this court through an inadequate brief. . . . Analysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . Where a claim is asserted in the statement of issues but thereafter receives only cursory attention in the brief without substantive discussion or citation of authorities, it is deemed to be abandoned.” [Internal quotation marks omitted.]).
The defendant further claims that evidence of uncharged misconduct should not be admitted more liberally in sex crime cases because “mass
We clarify that the exception we adopt today, like the liberal standard pursuant to which uncharged misconduct evidence formerly was admitted under the common scheme or plan exception, applies to all sexual misconduct, regardless of the age of the victim.
The scope and contours of the propensity exception to the rule prohibiting the admission of uncharged misconduct that we adopt in this opinion therefore are rooted in this state’s unique jurisprudence concerning the admission of uncharged misconduct evidence in sex crime cases, and must be construed accordingly. Consequently, we do not anticipate that our decision today will open the floodgates to the admission of uncharged misconduct evidence that previously was inadmissible under the common scheme or plan exception.
The precise content of such an instruction is beyond the scope of the present appeal. We note, however, that the following instruction regarding the admission of evidence of uncharged misconduct under rule 413 of the Federal Rules of Evidence; see footnote 32 of this opinion; has been approved by the Tenth Circuit Court of Appeals: “In a criminal case in which the defendant is [charged with a crime exhibiting aberrant and compulsive criminal sexual behavior], evidence of the defendant’s commission of another offense or offenses ... is admissible and may be considered for its bearing on any matter to which it is relevant. However, evidence of a prior offense on its own is not sufficient to prove the defendant guilty of the crimes charged in the [information]. Bear in mind as you consider this evidence [that] at all times, the government has the burden of proving that the defendant committed each of the elements of the offense charged in the [information], I remind you that the defendant is not on trial for any act, conduct, or offense not charged in the [information].” (Internal quotation marks omitted.) United, States v. McHorse, 179 F.3d 889, 903 (10th Cir.), cert. denied, 528 U.S. 944, 120 S. Ct. 358, 145 L. Ed. 2d 280 (1999); see also 1 L. Sand, J. Siffert & W. Loughlin et al., Modem Federal Jury Instructions-Criminal (Matthew Bender 2007) § 5-27.
The trial court minimized the risk of undue prejudice to the defendant by issuing the following cautionary instruction to the jury: “Remember, I told you that certain evidence might be admitted for one purpose but not another. This evidence has been admitted; first, to demonstrate or show a characteristic method or pattern in the commission of criminal acts; and second, on the issue of the defendant’s intent. The evidence of alleged prior misconduct by the defendant toward [N] is not part of the offense charged in this case. It is for you and you alone, ladies and gentlemen, to evaluate the testimony in this case, all of the testimony, including this testimony and to determine whether you credit it in whole, in part, or not at all. You are expressly prohibited from using this evidence that you have just heard of prior alleged misconduct as evidence of the bad character of the defendant or as evidence of a tendency to commit criminal acts in general or as proof that he committed the acts charged in this case for which he is being prosecuted. The weight, if any, that you choose to give to this evidence is up to you. That is your job as jurors, to evaluate the evidence.
“If you find this evidence of prior alleged misconduct credible you may consider it for the sole and limited purpose of assisting you in determining whether the defendant has engaged in a characteristic method or pattern in the commission of criminal acts of which the charged conduct is a part and on the issue of the defendant’s intent.”
“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful. ... As we recently have noted, a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [W]hether [the improper admission of evidence] is harmless in a particular case depends upon a number of factors, such as the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative . . . the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the [improperly admitted] evidence on the trier of fact and the result of the trial. . . . Because the present case involves the improper admission of uncharged misconduct evidence, the most relevant factors to be considered are the strength of the state’s case and the impact of the improperly admitted evidence on the trier of fact.” (Citations omitted; internal quotation marks omitted.) State v. Randolph, supra, 284 Conn. 363-64.
Reference
- Full Case Name
- State of Connecticut v. Carlos Dejesus
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- 197 cases
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- Published