State v. Winot
State v. Winot
Opinion of the Court
In this certified appeal,
“Four days later, on July 23, 2002, at approximately 5 p.m., the victim was again walking home on Spruce Street when she noticed the same green car and driver. The defendant stopped the vehicle and rolled down the window. This time, without saying anything to the victim, he left the car and began walking toward her. She began to walk faster, but the defendant forcibly took her right arm. When she asked him to let go, he refused, yelling, ‘[n]o, it’s too wet out here; you’re getting in my car today.’ He tried to pull her toward his car, but she resisted, pulling back in the opposite direction. To get him to release her, the victim then leaned over to bite the defendant, at which point he quickly let go and rushed back to his car. In doing so, the defendant was almost hit by a maroon car. Upon being released, the victim ran home and told her mother what had transpired. The entire incident lasted only a few seconds.
“The police traced the license plate number to the defendant. Upon arriving at his residence that same day, the police observed a turquoise Ford Thunderbird with plates matching the number provided by the victim. Officer David Evans of the Manchester police department asked the defendant whether he had been on Spruce Street around 5 p.m. Although the defendant admitted that he had driven through that area on his way home from work, he initially denied having spoken to anyone. Subsequently, however, he admitted to Sergeant Jeffrey Lampson that he had offered a young woman a ride. The police brought the victim to the defendant’s house, where she positively identified him as the man who had approached her on both occasions. The defendant was then arrested, handcuffed and placed in a police cruiser. Thereafter, Officer Evans obtained the defendant’s permission to search his car. The subsequent search revealed a rope noose and various debris in the trunk. Only the noose was seized. At the police station, the defendant admitted that on his way home from work, he had offered a young girl a ride home because it was raining, but denied any wrongdoing.
“In a three count substitute information, the state charged the defendant with attempt to commit kidnapping in the second degree in violation of [General Statutes] §§ 53a-94 (a) and 53a-49 (a) (2), kidnapping in the second degree in violation of § 53a-94 (a) and risk of injuiy to a child in violation of [General Statutes] § 53-21 (a) (1). After the jury found the defendant guilty on all three counts, the trial court denied the defendant’s motions for a new trial and for a judgment of acquittal. The court sentenced the defendant to eight years impiis-
The defendant’s appeal from his conviction to the Appellate Court followed. There, he argued, inter aha, that § 53a-94 (a), proscribing the offense of kidnapping in the second degree, was unconstitutionally vague as applied to his conduct on July 23, 2002. Specifically, he argued that, in light of the brevity of his encounter with the victim and the minimal amount of restraint he employed, the statute failed to give him fair notice that his conduct was prohibited.
I
The state contends on appeal that the Appellate Court improperly reversed the defendant’s conviction of kidnapping in the second degree because the statute proscribing that crime is not unconstitutionally vague as applied to his conduct on July 23, 2002. We agree.
We begin with the applicable standard of review and general governing principles.
“The United States Supreme Com! has set forth standards for evaluating vagueness. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. ... [A] law forbidding or requiring conduct in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates due process of law. . . .
Tempering the foregoing considerations is the acknowledgment that many statutes proscribing criminal offenses necessarily cannot be drafted with the utmost precision and still effectively reach the targeted behaviors. Consistent with that acknowledgment, the United States Supreme Court has explained: “The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.” Colten v. Kentucky, 407 U.S. 104, 110, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972); see also Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 322, 732 A.2d 144 (1999) (“Because perfect precision is neither possible nor required . . . the [vagueness] doctrine does not mandate the invalidation of all imprecisely drafted statutes. Rose v. Locke, 423 U.S. 48,49,96 S. Ct. 243,46 L. Ed. 2d 185 [1975]; Grayned v. Rockford, 408 U.S. 104, 110, 92 S. Ct. 2294, 33 L. Ed. 2d 222 [1972] . . . .” [Citations omitted; internal quotation marks omitted.]). Simply put, “[w]hile some ambiguous statutes are the result of poor draftsmanship, it is apparent that in many instances the uncertainty is merely attributable to a desire not to nullify the purpose of the legislation by the use of specific terms which
Section 53a-94 (a), by its plain terms, indisputably prohibits intentional, nonconsensual restraint of a person, by means of physical force, when that restraint is coupled with the intent to prevent that person’s liberation. See footnote 3 of this opinion. It further is clear that the statutory definition of “restraint” encompasses both movement of a person from one place to another and confinement of a person in the place where a restriction of movement commences. General Statutes § 53a-91 (1); see also footnote 3 of this opinion. The Appellate Court agreed with the defendant’s argument that, although he held the victim in place against her will through physical force, he did so for such a brief period of time that the statute did not afford him adequate notice that his behavior would be regarded as criminal and, moreover, to convict him of kidnapping on the basis of a brief restraint would allow for arbitrary enforcement of § 53a-94 (a). State v. Winot, supra, 95 Conn. App. 342-43. We are not persuaded.
For many years prior to the events underlying this appeal, Connecticut’s appellate courts routinely rejected challenges to kidnapping convictions based on claims that the movement or confinement at issue was minimal and/or merely incidental to the commission upon the victim of another assault type crime. See State v. Salamon, 287 Conn. 509, 531, 949 A.2d 1092 (2008) (citing cases). We reasoned, in part, that “because the statutory definitions of the terms ‘restrain’ and ‘abduct’ contain no time or distance specifications, the offense of kidnapping does not require proof that the victim was confined for any minimum period of time or moved
Substantial vagueness jurisprudence provides that when a criminal statute is imprecise in describing the actions it proscribes, the presence of a specific intent requirement can temper that imprecision, thus clarifying the meaning of the statute, narrowing its application, and “purg[ing] a potentially vague [provision] of constitutional infirmity.” State v. Schriver, 207 Conn. 456, 460, 542 A.2d 686 (1988). “[A] scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the [party] that his conduct is proscribed.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S. Ct. 1186, 71 L. Ed. 2d 362, reh. denied, 456 U.S. 950,102 S. Ct. 2023, 72 L. Ed. 2d 476 (1982); see also United States v. National Dairy Products Corp., 372 U.S. 29, 35, 83 S. Ct. 594, 9 L. Ed. 2d 561 (necessary specificity of warning afforded when statutory elements include both intent to achieve result and act done in furtherance of that result), reh. denied, 372 U.S. 961, 83 S. Ct. 1011, 10 L. Ed. 2d 13 (1963). In short, “where the punishment imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the accused cannot be said to suffer from lack of warning or knowledge that the act which he does is a violation of law.” Screws v. United States, 325 U.S. 91,102, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); see also Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 342, 72 S. Ct. 329, 96 L. Ed. 367 (1952) (“requirement of the presence of culpable intent
We conclude that this court’s repeated pronouncements that there are no minimum time or distance requirements to establish a restraint within the meaning of § 53a-94 (a),*
In the present case, any potential for vagueness of § 53a-94 (a) as applied to the defendant’s conduct, standing alone, was counteracted by the overwhelming evidence that he possessed the requisite specific intent to prevent the victim’s liberation. The events of July 23, 2002, were not the victim’s first encounter with the defendant; rather, he was convicted of attempting to kidnap the victim only four days earlier. See, e.g., State v. Thomas W., 115 Conn. App. 467, 475, 974 A.2d 19 (jury reasonably could be expected to conclude that defendant’s viewing of child victim in bathroom was for purpose of sexual gratification in light of earlier incident in which defendant exposed himself and masturbated in victim’s presence), cert, granted on other
We note in closing that our disposition of this matter “is informed by the understanding that the fundamental purpose of the void for vagueness doctrine is to ensure fair warning in order to avoid traps for the innocent. . . . The defendant has made no plausible argument, nor can we conceive of one, that [on July 23, 2002] he acted in reliance on the belief that his conduct was lawful, or that a person of ordinary intelligence would have no reason to know that he was engaging in prohibited conduct.” (Citation omitted; emphasis added.) State v. Payne, 240 Conn. 766, 779, 695 A.2d 525 (1997), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004). Rather, the defendant in his brief implies only that he was charged improperly, i.e., that he ought to have been charged with either unlawful restraint or attempt to commit kidnapping,
II
The defendant argues that we may affirm the Appellate Court’s judgment
The state objected, arguing, inter alia, that “the [mother’s] statement was hearsay and that offering it for impeachment purposes was a mere subterfuge for introducing substantively inadmissible evidence [as contemplated by § 6-4 of the Connecticut Code of Evidence].
On appeal to the Appellate Court, the defendant argued that the mother’s statement was admissible under Whelan and was not barred by § 6-4 of the Connecticut Code of Evidence. The Appellate Court disagreed, concluding that the trial court properly excluded the statement as hearsay because it purported to report the statements of the victim. Id., 356-57. According to the Appellate Court, “[i]t is clear that the defendant’s primary purpose in calling the [victim’s] mother to testify, after being informed that she would recant, was to impeach her. In impeaching her, the defendant’s objective was to get the statement before the jury with the intent that it be used substantively . . . .’’Id., 357. Alternatively, the Appellate Court determined that the statement was inadmissible because it amounted to irrelevant extrinsic evidence offered to impeach the victim on a collateral matter, namely, the dates of the charged offenses. Id., 357 n.16. The Appellate Court held, therefore, that the statement properly was excluded. Id., 357. This appeal followed.
The defendant argues that, pursuant to Whelan, he had the right to present the signed, sworn statement of the victim’s mother as substantive evidence when she indicated that she would repudiate that statement if called to testify at trial, because the statement was in writing and had been signed under oath by the mother, and the mother had personal knowledge of what the victim had told her.
We begin our analysis by setting forth the applicable legal principles. “The federal constitution require[s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The sixth amendment . . . [guarantees] the right to offer the testimony of witnesses, and to compel their attendance, if necessary, [and] is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so that it may decide where the truth lies. . . . When defense evidence is excluded, such exclusion may give rise to a claim of denial of the right to present a defense. ... A defendant is, however, bound by the
Finally, “we note that [t]he admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. ... On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 643, 945 A.2d 449 (2008); accord State v. Saucier, 283 Conn. 207, 217-19, 926 A.2d 633 (2007) (Adopting the “ ‘hybrid’ ” approach to hearsay claims and concluding that “[w]e review the trial court’s decision to admit evidence, if premised on a correct view of the law . . . for an abuse of discretion. ... In other words, only after a trial court has made the legal determination that a particular statement is or is not hearsay, or is subject to a hearsay exception, is it vested with the discretion to admit or to bar the evidence based upon relevancy, prejudice, or other legally appropriate grounds related to the rule of evidence under which admission is being sought.” [Cita
Prior to 1986, Connecticut courts adhered to the common-law rule disallowing a party from impeaching or discrediting its own witnesses, in the absence of certain exceptions. See State v. Graham, supra, 200 Conn. 15. That year, however, in Graham, we determined that there was “no longer justification for the common law rule prohibiting a party from impeaching his own witness,” and held that, henceforth, “[a] party may impeach his own witness in the same manner as an opposing party’s witness,” for example, by “using prior inconsistent statements.” Id., 17. We emphasized, however, that a party “may not use a prior inconsistent statement under the guise of impeachment for the primary purpose of placing before the jury evidence which is admissible only for credibility purposes in hope that the jury will use it substantively.” Id., 18. In that circumstance, we explained, the “impeachment would become a subterfuge and the court should not permit it.” Id. The holding of Graham, along with the foregoing caveat, thereafter was codified as § 6-4 of the Connecticut Code of Evidence.
Shortly after deciding Graham, we decided Whelan. Prior to deciding Whelan, we “adhered to the traditional view that a prior inconsistent statement of a nonparty witness is inadmissible hearsay if offered to prove the truth of the matters asserted therein and, therefore, is
The rule of Whelan had implications for the rule of Graham, as the commentary to § 6-4 of the Connecticut Code of Evidence explains: “[I]f the prior inconsistent statement [offered to impeach a witness] is substantively admissible under State v. Whelan, [supra, 200 Conn. 753] ... or under other exceptions to the hearsay rule, the limitation on impeachment will not apply because impeachment with the prior inconsistent statement cannot result in introducing otherwise inadmissible evidence.” (Citation omitted.) In other words, if the prior inconsistent statement is admissible pursuant to Whelan or another hearsay exception, there can be no subterfuge because the statement properly may be used for substantive purposes, not just impeachment.
The defendant argues, in short, that the trial court improperly excluded the written statement of the vic
Specifically, because the mother had personal knowledge of what the victim said to her, the mother’s signed, sworn statement recounting the victim’s statements regarding the events of July 19 and 23, 2002, met the criteria of Whelan, and, therefore, was not itself hearsay. State v. Pierre, 277 Conn. 42, 59, 890 A.2d 474 (trial witness’ written statement to police recounting statements made in his presence by codefendants met criteria of Whelan), cert, denied, 547 U.S. 1197, 126 S. Ct. 2873, 165 L. Ed. 2d 904 (2006); State v. Woodson, 227 Conn. 1, 22, 629 A.2d 386 (1993) (trial witness’ tape-recorded statement to police recounting admissions made to him by defendant met criteria of Whelan). The victim’s statements to her mother, however, that is, her accounts of the events, constituted another level of hearsay within her mother’s Whelan statement. See State v. Lewis, 245 Conn. 779, 802, 717 A.2d 1140 (1998) (third party’s statements to informant, recounted in informant’s statement to police, constitute multiple levels of hearsay). “When a statement is offered that contains hearsay within hearsay, each level of hearsay must itself be supported by an exception to the hearsay rule in order for that level of hearsay to be admissible.” Id.; see also Conn. Code Evid. § 8-7; C. Tait, Connecticut Evidence (3d Ed. 2001) § 8.62.2, p. 750. Accordingly, when “prior statements [admissible under Whelan] are admitted for substantive purposes, hearsay contained
The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to affirm the judgment of conviction of kidnapping in the second degree. The judgment is affirmed in all other respects.
In this opinion NORCOTT, PALMER, VERTE-FEUILLE and McLACHLAN, Js., concurred.
We granted the state’s petition for certification to appeal limited to the following issue: “Did the Appellate Court properly conclude that General Statutes § 53a-94 is unconstitutional as applied to the facts of this case?” State v. Winot, 279 Conn. 905,901 A.2d 1229 (2006). The defendant’s petition for certification to appeal was denied. State v. Winot, 279 Conn. 904, 901 A.2d 1229 (2006).
The defendant also was convicted of attempt to commit kidnapping in the second degree in violation of General Statutes §§ 53a-49 (a) (2) and 53a-94 (a) and risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The Appellate Court rejected the defendant’s multiple challenges to evidentiary rulings and upheld the attempted kidnapping conviction; State v. Winot, 95 Conn. App. 332, 357, 897 A.2d 115 (2006); but reversed the risk of injury conviction on the basis of evidentiary insufficiency. Id., 362.
General Statutes § 53a-94 (a) provides: “A person is guilty of kidnapping in the second degree when he abducts another person.” Pursuant to General Statutes § 53a-91 (2), “ ‘[ajbduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a-91 (1) defines “ ‘[rjestrain,’ ” in relevant part, 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. ...”
The defendant did not argue that the restraint he employed was incidental to his commission of another crime against the victim.
The defendant did not raise separate vagueness claims under the federal and state constitutions. We previously have equated vagueness doctrine under the two documents and have declined to analyze vagueness claims any differently under the Connecticut constitution. See Ramos v. Vernon, 254 Conn. 799, 845-47, 761 A.2d 705 (2000); Packer v. Board of Education, 246 Conn. 89, 98-99, 717 A.2d 117 (1998). We adhere to that approach in the present case.
Additionally, we reasoned, “because there is no general prohibition against a person being convicted of multiple crimes arising out of the same act or acts, it is of no moment that the confinement or movement that provides the basis of a kidnapping conviction is merely incidental to the commission of another crime against the victim.” State v. Salamon, supra, 287 Conn. 532.
In Salamon, we examined more closely the contours of the intent to prevent a victim’s liberation. Although we did not attempt to provide a comprehensive definition of that intent, we determined that the legislature meant to exclude from its scope an intent to confine or move a victim that is wholly incidental to the commission of another crime which, by its nature, necessitates some restraint of the victim. State v. Salamon, supra, 287 Conn. 542. We did not otherwise limit the definition of “intent to prevent . . . liberation”; General Statutes § 53a-91 (2); or restrict the jury’s role in determining whether it has been proven. Indeed, we emphasized that the holding in Salamon was not a complete refutation of the principles established by our prior kidnapping jurisprudence, specifically, that no minimum period of confinement or degree of movement is required to establish kidnapping. State v. Salamon, supra, 546. We noted that “[w]hether 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” and that, “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 [of whether the defendant intended to prevent the victim’s liberation] must be made by the jury.” (Emphasis in original.) Id., 547-48. We reversed the defendant’s kidnapping conviction and remanded the case for such a determination. Id., 549-50.
Subsequent to our decision in Salamon, we heard two appeals that similarly challenged kidnapping convictions on the ground that the restraint at issue was brief and wholly incidental to the commission of another crime, which, in each case, was sexual assault. See State v. DeJesus, 288 Conn. 418, 426, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 612, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, supra, 437, superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009). In deciding these cases, we determined that their facts implicated the new rule announced in Salamon and, therefore, required reversal of the defendants’ kidnapping convictions. See State v. DeJesus, supra, 428; State v. Sanseverino, supra, 287 Conn. 625-26. We concluded further that the correct remedy was to remand each case for a new trial in which the jury properly would be instructed as to the rule of Salamon and the state would have the opportunity to present evidence and to argue
Upon review of those briefs, contrary to the view of the dissenting justices, we are not persuaded that the rule of Salamon and, therefore, the remedy established by DeJesus, is implicated by the facts of the present appeal. First, the defendant did not claim, before either the trial court or the Appellate Court, that § 53a-94 (a) was unconstitutionally vague as applied because his restraint of the victim was incidental to his commission of another crime, but rather, only because the restraint was of short duration. Compare State v. DeJesus, supra, 288 Conn. 426-27 (defendant argued that restraint was wholly incidental to commission of sexual assault); State v. Sanseverino, supra, 287 Conn. 619 (same); State v. Salamon, supra, 287 Conn. 516 (defendant argued that conduct constituted physical assault to which any restraint was incidental).
Second, there was no evidence presented at trial suggesting that the defendant, when he grabbed the victim’s arm, was in the process of committing another crime against her to which the restraint potentially was incidental. Compare State v. DeJesus, supra, 288 Conn. 422-23 (evidence of sexual assault during restraint); State v. Sanseverino, supra, 287 Conn. 615 (same); State v. Salamon, supra, 287 Conn. 515 (evidence that defendant grabbed victim by neck, causing her to fall, punched her and shoved his fingers down her throat while holding her down by her hair, causing her injury); State v. Misner, 410 N.W.2d 216, 223 (Iowa 1987) (because there was substantial evidence to support claim that confinement and movement of hostages was incidental to other crime, court should have so instructed); People v. Rappuhn, 78 Mich. App. 348, 354, 260 N.W.2d 90 (1977) (where there was evidence of forced sexual activity, incidental instruction was warranted); with Brown v. State, 132 Ga. App. 399, 402, 208 S.E.2d 183 (1974) (because evidence did not disclose any other crime involved, unnecessary for court to decide whether incidental rule would apply); People v. Kittle, 140 Ill. App. 3d 951, 954-55, 489 N.E.2d 481 (1986) (noting that factors of incidental analysis refer to separate offense and therefore are inapplicable when no such offense committed or contemplated). More specifically, contrary to the dissent’s assertion that the evidence “disclose[d] conduct that could constitute another crime,” there was no evidence that the defendant injured or struck the victim. Accordingly, a jury could not find that the defendant’s restraint of the victim was incidental to the commission of assault in the third degree or breach of the peace in the second degree. See General Statutes §§ 53a-61 (a) (1) and 53a-181 (a) (2). Moreover, as we explain hereinafter, the evidence was overwhelming that the defendant, when he
Third, we disagree with the defendant that he is entitled to an incidental instruction in connection with the charge of risk of injury to a child because his conviction for that crime was reversed by the Appellate Court for insufficiency of the evidence and, therefore, he will not face retrial. State v. Winot, supra, 95 Conn. App. 362. Given that circumstance, a remand of this matter for an instruction on the incidental rule in relation to risk of injury would be illogical and wholly confusing to the jury. See Walker v. Commonwealth, 47 Va. App. 114, 122-24, 622 S.E.2d 282 (2005) (incidental rule inapplicable where defendant acquitted of robbery), aff'd, 272 Va. 511, 636 S.E.2d 476 (2006); see also People v. Robbins, 131 Mich. App. 429, 433, 346 N.W.2d 333 (1984) (incidental rule inapplicable where trial court granted defendant’s motion for directed verdict on underlying assault charge); State v. French, 139 Vt. 320, 321, 428 A.2d 1087 (1981) (incidental rule inapplicable where defendants acquitted of sexual assault); but see People v. Gonzales, 80 N.Y.2d 146, 152, 603 N.E.2d 938, 589 N.Y.S.2d 833 (1992) (analysis unaltered even if defendant acquitted of rape or robbery).
Case law decided subsequent to the events underlying the defendant’s kidnapping conviction extended the logic of these holdings even further. See State v. Luurtsema, 262 Conn.179, 202-204, 811 A.2d 223 (2002) (movement of victim from couch to floor and confinement limited to brief period during which defendant attempted sexual assault adequate to sustain kidnapping conviction); State v. Ortiz, 83 Conn. App. 142, 159-60, 848 A.2d 1246 (kidnapping statute not unconstitutionally vague as applied to defendant’s movement of victim out of police substation doorway followed by brief confinement during physical assault), cert. denied, 270 Conn. 915, 853 A.2d 530 (2004). These holdings, as well as most of those cited in the main text, were undermined by our decision in Salamon, but only to the extent that the restraints involved were completely incidental to the accompanying crimes, which the defendant has not claimed here, and not merely because of their brevity. We reemphasize that Salamon did not refute the previously established principle that, pursuant to the terms of Connecticut’s kidnapping statute, no minimum period of confinement or degree of movement must be established to prove the commission of that crime. State v. Salamon, supra, 287 Conn. 546.
In deciding Salamon, we noted that a challenge based on this predicate remained viable under the vagueness doctrine. State v. Salamon, supra, 287 Conn. 532 n.21, 546 n.31; State v. DeJesus, 288 Conn. 418, 433 n.12, 953 A.2d 45 (2008); State v. Sanseverino, 287 Conn. 608, 623 n.14, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, supra, 437, superseded in part after reconsideration by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009).
Connecticut courts frequently have relied on this reasoning to reject vagueness challenges to statutes with specific intent requirements. See, e.g., State v. Dyson, 238 Conn. 784, 798-99, 680 A.2d 1306 (1996) (first degree kidnapping statute not unconstitutionally vague because it requires specific intent to terrorize); State v. Cavallo, 200 Conn. 664, 668-69, 513 A.2d 646 (1986) (statute disallowing tampering with witness not unconstitutionally vague because it requires specific intent to cause witness to testify falsely or to refrain from testifying at all); State v. Adgers, 101 Conn. App. 123, 132, 921 A.2d 122 (requirement in harassment statute that mailings be sent “ ‘with intent to harass, annoy or alarm’ ” victim buttressed conclusion that statute not unconstitutionally vague), cert, denied, 283 Conn. 903, 927 A.2d 915 (2007).
In order to provide the requisite notice and fair warning to a defendant that his conduct is criminal, judicial opinions need not involve precisely the same factual scenario as the defendant’s case; Rose v. Locke, supra, 423 U.S. 51; or even “ ‘fundamentally similar’ ” facts. United States v. Lanier, 520 U.S. 259, 268, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997); see, e.g., State v. Sorabella, 277 Conn. 155,193-94, 891 A.2d 897 (rejecting vagueness claim after holding, for first time, that defendant may be convicted of attempted sexual assault without actually having met victim), cert. denied, 549 U.S. 821, 127 S. Ct. 131, 166 L. Ed. 2d 36 (2006). Accordingly, it is of no consequence that all of our previous kidnapping jurisprudence involved restraints of more substantial duration than that at issue here.
The defendant did not raise any distinct claim in his appeal before the Appellate Court, as to either his conviction of kidnapping in the second degree or attempt to commit kidnapping in the second degree, that his conduct actually constituted some other crime. Accordingly, that court did not consider such a claim. As a consequence, this case gives us no occasion to explore in detail the precise delineation between an attempt to commit kidnapping and a completed kidnapping.
More precisely, the defendant requests that we modify the Appellate Court’s judgment, from a directed judgment of acquittal on the charge of kidnapping in the second degree to a reversal of that conviction followed by a remand and retrial on that charge.
The state argues at the outset that we should not review the defendant’s claim because it has been waived. Specifically, it claims that, although the defendant petitioned this court for certification to appeal from the Appellate Court’s judgment, he did not request review of the issue presented here and, therefore, improperly has circumvented this court’s discretionary review process. Moreover, according to the state, the defendant’s proposed alterna
We disagree with the state that the defendant has waived his claim. A party need not first seek certification for review of an issue in order to raise it as an alternative ground for affirmance. Russell v. Mystic Seaport Museum, Inc., 252 Conn. 596, 599-600 n.3, 748 A.2d 278 (2000). All that is necessary is that the alternative ground was raised and briefed in the appeal before the Appellate Court. See Practice Book § 84-11 (a). Additionally, pursuant to Practice Book § 84-11 (b), “[a]ny party may also present for review any claim that the relief afforded by the appellate court in its judgment should be modified, provided such claim was raised in the appellate court either in such party’s brief or upon a motion for reconsideration.” (Emphasis added.) See, e.g., Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 625-26, 904 A.2d 149 (2006) (reviewing appellees’ claim that they were entitled to judgment as matter of law rather than new trial). At the Appellate Court, the defendant sought reversal of his conviction of kidnapping in the second degree on the ground that § 53a-94 (a) was void for vagueness or, alternatively, because that conviction was obtained unfairly due to multiple allegedly improper evidentiary rulings, including the one at issue here. Accordingly, the defendant may seek modification of the Appellate Court’s judgment pursuant to Practice Book § 84-11 (b).
Generally, “[t]he credibility of a witness may be impeached by evidence of a prior inconsistent statement made by the witness.” Conn. Code Evid. § 6-10 (a).
It is not disputed that the victim’s mother did not witness, and, further, had no personal knowledge of, the incidents involving the defendant and the victim on July 19 and July 23,2002. The mother’s statement only purported to recount what the victim had told her following each incident.
In short, a statement admissible pursuant to Whelan satisfies a hearsay exception and, therefore, is admissible to prove the truth of the matter asserted therein, and not merely for impeachment purposes. See State v. Mukhtaar, 253 Conn. 280, 306, 750 A.2d 1059 (2000).
Section 6-4 of the Connecticut Code of Evidence provides: “The credibility of a witness may be impeached by any party, including the party calling the witness, unless the court determines that a party’s impeachment of its own witness is primarily for the purpose of introducing otherwise inadmissible evidence.”
Although the defendant in his brief challenges the exclusion of both the mother’s trial testimony and her written statement, we construe his claim as pertaining mainly to the question of the admissibility of the statement as substantive evidence, in the event that the mother had been permitted to repudiate her sworn testimony, as she indicated she would during the defendant’s offer of proof. Because the mother’s proposed testimony, as demonstrated by the offer of proof, was consistent with the victim’s testimony and, therefore, would not have been useful to the defendant either
Additionally, even without the mother’s testimony and statement, the defendant otherwise was able to introduce evidence of the victim’s inconsistent reporting of the dates of the subject events, through the cross-examination of both the victim and Officer Calkins on that topic. See State v. Kelly, 256 Conn. 23, 76, 770 A.2d 908 (2001) (no violation of constitutional right to present defense where subject matter of precluded testimony was presented through other witnesses); State v. Shabazz, 246 Conn. 746, 758 n.7, 719 A.2d 440 (1998) (same), cert. denied, 525 U.S. 1179, 119 S. Ct. 1116, 143 L. Ed. 2d 111 (1999).
As explained in the commentaiy to § 6-4 of the Connecticut Code of Evidence, this court, “[i]n Graham and subsequent decisions . . . has supplied a two-pronged test for determining whether impeachment serves as a mere subterfuge for introducing substantively inadmissible evidence. A party’s impeachment of a witness it calls by using the witness’ prior inconsistent statements is improper when: (1) the primary purpose of calling the witness is to impeach the witness; and (2) the party introduces the statement in hope that the jury will use it substantively. [See, e.g.], State v. Graham, supra, 200 Conn. 18.” (Citations omitted.)
This rule has been codified in § 8-5 of the Connecticut Code of Evidence, which provides in relevant part: “The following [is] not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial:
“(1) Prior inconsistent statement. A prior inconsistent statement of a witness, provided (A) the statement is in writing or otherwise recorded by audiotape, videotape or some other equally reliable medium, (B) the statement or recording is duly authenticated as that of the witness, and (C) the witness has personal knowledge of the contents of the statement. . . .”
The defendant, in his brief, alludes to the victim’s statements as possibly meeting the requirements of the spontaneous utterance exception to the rule against hearsay. See Conn. Code Evid. § 8-3 (2). He did not so argue to the trial court, however, and it is well established that a party may not claim one ground for evidentiary error at trial and then argue a different ground on appeal. See State v. Jose <?., 290 Conn. 331, 342-46, 963 A.2d 42 (2009). “This rule limiting appellate review of evidentiary claims to the ground asserted at trial applies with equal force to Whelan issues.” State v. Simpson, supra, 286 Conn. 646.
It is clear that the defendant, by arguing the applicability of Whelan, sought to introduce the victim’s statements, as recounted in her mother’s statement, substantively. He continues to argue on appeal that the mother’s statement, had it been admitted, “would not only [have] substantially undercut [the victim’s] testimony, but it would [have] supported] the defendant’s denials of touching or hurting any girl .... It would also [have] preclude [d] his conviction for the completed offense of kidnapping in the second degree, and undermine [d] the state’s closing argument that the defendant lied to police.”
Even if, however, the mother’s statement was offered only to impeach the victim’s credibility, as the defendant originally had sought to do by presenting the mother’s testimony, we agree with the Appellate Court that exclusion still would have been proper because the statement was extrinsic evidence of the victim’s prior inconsistent statements as to a collateral matter only, namely, the precise dates on which each of the charged offenses occurred. “As a general rule, extrinsic evidence of a prior inconsistent statement may not be admitted to impeach the testimony of a witness on a collateral matter. . . . Thus, on cross-examination, a witness’ answer
No statute of limitations or alibi defenses were at issue in this case, and “[i]t is a well-established rule in [Connecticut] that it is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the statute of limitations . . . .” (Citations omitted; internal quotation marks omitted.) State v. Romero, supra, 269 Conn. 505; see also State v. Morrill, 197 Conn. 507, 552, 498 A.2d 76 (1985) (same); State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978) (same). “[WJhere time is not of the essence or gist of the offense, the precise time at which it is charged to have been committed is not material. ” (Internal quotation marks omitted.) State v. Laracuente, 205 Conn. 515, 519, 534 A.2d 882 (1987), cert. denied, 485 U.S. 1036, 108 S. Ct. 1598, 99 L. Ed. 2d 913 (1988). In this regard, the impeachment evidence the defendant sought to introduce pertained to a collateral matter and, therefore, simply was not relevant. Moreover, even had it been admissible substantively, it is unclear how it could have precluded the defendant’s conviction of kidnapping in the second degree, as it tended to show only that the offense had been committed on a different day, not that it had not been committed at all.
Dissenting Opinion
with whom, ZARELLA, J., joins, dissenting. I disagree with the majority’s determination that the
As the majority recognizes in footnote 7 of its opinion, in State v. Salamon, supra, 287 Conn. 542, we determined that, in defining kidnapping, “the legislature meant to exclude from its scope an intent to confine or move a victim that is wholly incidental to the commission of another crime which, by its nature, necessitates
Notably, following our decision in DeJesus, we granted a motion for reconsideration of our decision in State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), in which, after deciding that the facts of Sansev-erino implicated the rule announced in Salamon, we had concluded that the defendant was entitled to a judgment of acquittal rather than a new trial on the kidnapping charge because it seemed so apparent that the defendant’s restraint had been wholly incidental to his commission of a sexual assault. See State v. Sansev-erino, supra, 291 Conn. 578. Upon reconsideration, however, the court changed its approach, concluding instead that the proper remedy was to remand the case to afford the state the opportunity to retry the defendant on the kidnapping charge at which trial the jury properly would be instructed as to the rule of Salamon and the
Despite this case law, in the present case, the majority concludes that the remedy established by DeJesus is not implicated because, inter alia, there was “no evidence presented at trial suggesting that the defendant, when he grabbed the victim’s arm, was in the process of committing another crime against her to which the restraint was incidental.” I disagree. The evidence did indeed disclose conduct that could constitute another crime, i.e., assault in the third degree, breach of the peace, creating a public disturbance or disorderly conduct, to which a jury reasonably could find the restraint was wholly incidental.
Accordingly, I respectfully dissent.
In State v. Salamon, supra, 287 Conn. 528-48, we reconsidered our longstanding interpretation of our kidnapping statutes, General Statutes §§ 53a-91 through 53a-94a, encompassing even restraints that merely were incidental to and necessary for the commission of another substantive offense, such as robbery or sexual assault. We ultimately concluded that “[o]ur legislature . . . intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” Id., 542.
In light of this conclusion, I do not address the majority’s determination that the Appellate Court improperly concluded that the kidnapping in the second degree statute, General Statutes § 53a-94 (a), was unconstitutionally vague as applied to the defendant’s conduct. See Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 635 n.15, 904 A.2d 149 (2006) (“[t]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case” [internal quotation marks omitted]); Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986) (same); see also State v. Cofield, 220 Conn. 38, 49-50, 595 A.2d 1349 (1991) (citing same principle).
General Statutes § 53a-61 (a) provides in relevant part: “A person is guilty of assault in the third degree when: (1) With intent to cause physical injury to another person, he causes such injury to such person or to a third person . . . .”
General Statutes § 53a-181 (a) provides in relevant part: “A person is guilty of breach of the peace in the second degree when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person ... (2) assaults or strikes another . . . .”
General Statutes § 53a-181a (a) provides in relevant part: “A person is guilty of creating a public disturbance when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he (1) engages in fighting or in violent, tumultuous or threatening behavior . . . .” General Statutes § 53a-182 (a) provides in relevant part: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, such person: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . . .”
I note that the decision to charge the defendant with any of these offenses would be solely within the state’s discretion. See State v. Kinchen, 243 Conn. 690, 699, 707 A.2d 1255 (1998) (“There can be no doubt that [tjhe doctrine of separation of powers requires judicial respect for the independence of the prosecutor. . . . Prosecutors, therefore, have a wide latitude and broad discretion in determining when, who, why and whether to prose
Whether the state decides to charge the defendant with these other offenses, however, is irrelevant to the analysis of the question before this court. “Applying [the pertinent] standard to the facts in Salamon, we concluded that, although the defendant had not been charged with assault, the judgment of conviction of kidnapping in the second degree had to be reversed and the case remanded for a new trial because the defendant was entitled to a jury instruction explaining that a kidnapping conviction could not he if the restraint was merely incidental to the assault.” State v. Sanseveri.no, supra, 287 Conn. 624.
Certainly, this evidence is no more clear-cut than the evidence in Salamon that we concluded required a remand. See State v. Salamon, supra, 287 Conn. 549-50 (citing evidence that defendant grabbed victim by neck, causing her to fall, punched her and shoved his fingers down her throat while holding her down by her hair).
Reference
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- State of Connecticut v. Gregory B. Winot
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