State v. Courchesne
State v. Courchesne
Concurring in Part
with whom NORCOTT, J., joins, concurring in part and dissenting in part. Today, the majority subjects the defendant to another trial for capital felony and murder by adopting, for the first time in the state of Connecticut, the bom alive rule. In so doing, the majority, in an opinion of more than 160 pages, fails to demonstrate that the murder statute encompasses the acts alleged to have been committed, adds a substantive element of proof that does not appear in the statutes governing murder, thus making the killing of a fetus that dies after birth a new substantive offense not contained in our Penal Code, fails to establish that the bom alive rule was ever adopted by the legislature, provides no convincing support for its view that the rule was a part of the common law of Connecticut and resorts to the legislative history of an act enhancing the penalty for an assault on a pregnant woman to conclude that the legislature has accepted the rule under our murder and capital felony statutes. In addition, the majority ignores the plain language of the murder statute, ignores or fails to address our precedent in the area of what constitutes the common law of Connecticut, disregards the due process rights of the defendant by relying on the legislature’s purported acceptance of the rule more than four years after the crime was committed, fails to employ the rule of lenity to resolve the ambiguities in our murder and capital felony statutes as applied to
I cannot agree with this deeply flawed approach because, no matter how horrific or despicable the crime, it does not justify ignoring our precedent and the constitutional protections guaranteed to all defendants. Accordingly, I concur in part I of the majority opinion, in which the majority concludes that the trial court properly denied the defendant’s motion to suppress his written confessions and other evidence tying him to the murder of Demetris Rodgers, but respectfully dissent with respect to parts II through V,
I
Justice Oliver Wendell Holmes once observed in a similar context: “It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since,
It is well documented that the bom alive rule evolved during a time of limited medical knowledge, when it was necessary to establish that a fetus was alive at the time of the criminal act. See, e.g., C. Forsythe, “Homicide of the Unborn Child: The Bom Alive Rule and Other Legal Anachronisms,” 21 Val. U. L. Rev. 563, 575
Recognizing the evidentiary basis for the bom alive rale and the advances in medical science that have made the rale obsolete,
The majority’s adoption of the bom alive rule has at least three deleterious consequences. First and fore
Second, the bom alive rule, stripped of its relevance as an evidentiary tool, is logically incoherent and thus introduces a significant incongruity into our criminal law. As interpreted by the majority, the mle contains the inherent contradiction that a viable fetus that is fatally injured but subsequently bom alive is considered
This, in turn, raises serious due process concerns regarding the right to fair notice because whether criminal liability will attach for the death of a fetus in any particular case will not be evident to the perpetrator at the time the crime is committed. See State v. Aiwohi, 109 Haw. 115, 136, 123 P.3d 1210 (2005) (Acoba, J., concurring). The defendant in the present case also will have been denied his due process rights because the majority’s retroactive application of its newly adopted construction of our murder statute will have deprived him of notice and fair warning regarding the consequences of his actions.
In summary, because the bom alive rule developed as a rule of causation and is no longer necessary due
II
The majority nonetheless embraces the bom alive rale, concluding that, as long as the fetus that is fatally injured is subsequently bom alive, the perpetrator can be charged with the murder of a person. Recognizing that this appears to be problematic, however, the majority states that Connecticut’s murder statute does not require that the fetus be a person at the time of the criminal conduct but only that it become a person before it dies by being bom alive. This interpretation of the murder statute is not only in direct conflict with the rale’s original purpose of establishing that the fetus was alive when the fatal injury was inflicted, but requires a major rewriting of General Statutes § 53a-54a.
The majority claims that there is nothing in our Penal Code or § 53a-54a (a) suggesting that application of the bom alive rale is barred by the requirement of a temporal nexus between the defendant’s criminal conduct
The statute’s reference to the death “of such person or of a third person” further suggests that the unintended victim, as well as the intended victim, must be a person when the fatal injury is inflicted because the term “such person” relates back to the time of the criminal act and is linked with the term “third person” by the word “or.” This court previously has stated that, “[a]mong the definitions of the word ‘or’ is ‘the synonymous, equivalent, or substitutive character of two words or phrases . . . .’ Webster’s Third New International Dictionary.” Seymours. Seymour, 262 Conn. 107, 112, 809 A.2d 1114 (2002). It is thus very clear that the intended and unintended victims of the defendant’s criminal conduct must occupy an equivalent status as persons at the time the injury is inflicted. Indeed, if the victim is not a person when the injury is inflicted, it is hard to understand, without engaging in logical and linguistic acrobatics, how the defendant’s conduct can cause the victim’s subsequent death. Furthermore, the majority cites no other statute in our Penal Code that lacks the requirement of a temporal nexus between the criminal conduct in question and the status of the victim as a person. Accordingly, the language in the statute clearly instructs that a defendant cannot be found guilty of murder unless the intended and unintended victims are persons when the injuries are inflicted.
The majority also relies on four cases from other jurisdictions. These include Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997), in which the court stated that “[i]t is not necessary that all of the elements of a criminal offense be immediately satisfied at the time of the defendant’s conduct”; id., 139; and State v. Cotton, 197 Ariz. 584, 588-89, 5 P.3d 918 (App. 2000), State v. Hammett, 192 Ga. App. 224, 225, 384 S.E.2d 220 (1989), and Jones v. Commonwealth, 830 S.W.2d 877, 880 (Ky. 1992), all of which concluded that it is not the status of the victim at the time of the injury that determines the nature of the crime but the victim’s status at the time of death. In all four jurisdictions, however, the statutes in question lacked the element of intent that supplies the requisite temporal link between the criminal conduct and the status of the victim as a person in Connecticut’s murder statute. See State v. Cotton, supra, 586 (defendant charged under Arizona’s second degree murder statute, which provides in relevant part that offense is committed when person “without premeditation . . . [and] [u]nder circumstances manifesting extreme indifference to human life . . . recklessly engages in conduct which creates a grave risk of death and thereby causes the death of another person,” but
The significance of the element of intent in Connecticut’s murder statute, and what distinguishes it from the foregoing statutes, is that it is specific and must exist
Furthermore, all four jurisdictions have since enacted fetal homicide or feticide statutes and thus have repudiated the rationale of the bom alive rule in order to avoid the legal inconsistencies that inevitably arise when the criminal conduct is severed from the status of the victim as a person at the time of the fatal injury.
The majority also declares that it is “perfectly clear” that no temporal nexus is required because New York’s “homicide statutes . . . are materially identical to our homicide statutes”; footnote 42 of the majority opinion; and a New York appellate court applied the bom alive
The majority asserts that it is unaware of any authority in support of the view that a temporal nexus is required between the criminal conduct and the victim’s status as a person. I find this assertion surprising when there is so much authority to be found. The reason why the overwhelming majority of states have abandoned the bom alive rule and adopted fetal homicide laws, and why two other states have enacted laws expressly limiting the definition of a “person” to one who has been bom and is alive at the time of the criminal act; see Colo. Rev. Stat. § 18-3-101 (2) (2009) (“ ‘[p]erson,’ when referring to the victim of a homicide, means a human being who had been bom and was alive at the time of the homicidal act”); Or. Rev. Stat. § 163.005 (3) (2009) (“ ‘[h]uman being’ means a person who has been bom and was alive at the time of the criminal act”); is that they wished to restore the temporal connection between the criminal conduct and the status of the
The majority claims that the enactment by other states of fetal homicide statutes that amend the definition of “person” to include an unborn child or fetus “does not exclude from its purview the infliction of injuries on a viable fetus that is bom alive and that
The majority claims, to the contrary, that the bom alive rule is “well established in the common law of this state . . . .” This claim is without merit. The majority ignores the fact that, even if the bom alive rule had been accepted as part of the common law of this state prior to 1969, which I submit it had not, “[a\doplion of the [P]enal [C]ode [in 1969]
The common law, as distinguished from statutory law, “comprises the body of those principles and rales of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming, and enforcing such usages and customs . . . .” Black’s Law Dictionary (6th Ed. 1990). This means that, in order to demonstrate that the bom alive rale is “well established in the common law of this state,” there must be evidence that the rule was a well known usage or custom in the colony or the state of Connecticut, or that reviewing courts have issued judgments and decrees enforcing the rale over the past
The majority relies on a single treatise, written in 1796 by a former Chief Justice of the Connecticut Supreme Court, Zephaniah Swift,
This leaves State v. Anonymous (1986-1), 40 Conn. Sup. 498, 516 A.2d 156 (1986) (Anonymous'), in which the issue before the court was “whether an unborn but viable fetus is a ‘human being’ within the meaning of the Connecticut statutes defining murder.” (Emphasis added.) Id., 499. In concluding that such a fetus is not a “human being,” the court first examined the legislative history of Connecticut’s Penal Code and noted that the murder section was based in part on the revised New York Penal Law and in part on the Model Penal Code; id., 500; which define the terms “person” and “human being,” respectively, as one “who has been bom and is alive.” N.Y. Penal Law § 125.05 (1) (McKinney 2009); accord Model Penal Code § 210.0 (1) (1980). The court thus concluded that “[i]t is obvious that neither the
Anonymous has little, if any, precedential value in the present context because the issue before the trial court was whether an unborn fetus, rather than a fetus that is fatally injured but is subsequently bom alive, is a “human being” under Connecticut’s murder statute, and the court specifically stated that any redefinition of the term “person” must be left to the legislature because that body alone has the authority to define crimes. State v. Anonymous (1986-1), supra, 40 Conn.
The majority also seeks support for its view in the Model Penal Code, but its reasoning is internally inconsistent and reflects a misunderstanding of the code. On the one hand, the majority concedes that “it is not entirely clear” whether the Model Penal Code intended the definition of “human being” to apply to a fetus that is bom alive but later dies from injuries inflicted in útero. Footnote 35 of the majority opinion. The majority farther concedes that “it [is] more likely that the [related] commentary to the Model Penal Code was intended to clarify that the killing of a fetus in útero does not constitute the crime of homicide, and that [the Model Penal Code] definition [of ‘human being’] does not expressly address the more specific issue of whether it is a homicide when an infant, having been injured in útero, is bom alive and then dies of his or her injuries.” Id. On the other hand, the majority asserts that, “[b]ecause our statutory scheme is patterned after the Model Penal Code,” we must presume that our legislature would have “expressly repudiated]” the bom alive rule if it had not intended it to apply.
Even if the Model Penal Code’s definition of “human being” could be constmed as an implicit adoption of the bom alive mle, which I believe it cannot, the Connecticut legislature declined to embrace that definition or the definition of “person” in the New York Penal Law when it adopted this state’s Penal Code in 1969. See General Statutes § 53a-3 (1) (defining “person” for purposes of Penal Code as “a human being, and, where appropriate, a public or private corporation, a limited liability company, an unincorporated association, a partnership, a government or a governmental instrumentality”). Accordingly, even though portions of our Penal Code may be patterned after the Model Penal Code and the legislature may have been familiar with the Model Penal Code commentary, the legislature’s decision to reject the definitions of “person” and “human being” in the New York Penal Law and Model Penal Code, respectively, necessarily constitutes a rejection of any affirmative implications regarding the bom alive mle purportedly arising therefrom.
In addition, the majority ignores the crucial fact that the precise issue before this court never has been litigated in Connecticut, and, therefore, the rule never has been recognized and adopted in this state, a conclusion absolutely required by the cases on which the majority itself relies.
In clear disregard of our precedent, the majority ignores significant portions of our analysis in Dacey and relies on the case law of several foreign jurisdictions, including Arkansas, Maryland, Minnesota and North Dakota to guide its common-law analysis. See id. To the extent that the majority acknowledges Dacey, it takes a small passage from Graham v. Walker, 78 Conn. 130, 133, 61 A. 98 (1905), which also is quoted in Dacey, that the English common law “ ‘was brought here by the first settlers, and became the common law of Connecticut so far as it was not unadapted to the local circumstances of this country.’ ” The majority also quotes selectively from Dacey for the proposition that, at times, our view of the common law of England has been ambivalent and that the common law does not necessarily represent the common law of our state. The majority then concludes that Connecticut has demonstrated no ambivalence with respect to the common-law bom alive rule. The majority, however, omits all of the surrounding language in Dacey, in which the court explains that the common law of England “was
In Valeriano, we determined that the common-law year and a day rale had never been adopted in this state and that, even if it had, it had been abrogated by
The majority nonetheless claims that “[c]ourts in other jurisdictions have . . . consistently concluded that the death of an infant who is bom alive from injuries inflicted in útero constitutes homicide.” (Internal quotation marks omitted.) Such a comparison, which might have been compelling forty or fifty years ago, is now passé. See State v. Lamy, supra, 158 N.H. 521 (describing bom alive rale as “outdated anachronism often producing anomalous results”). Most other jurisdictions that have adopted the bom alive rale did so at a time in our nation’s history when the health of the fetus
The majority further justifies its decision on the ground that the legislative history of P.A. 03-21 (aggravated assault statute)
The majority states,
The majority further declares that “it is abundantly clear that . . . the legislature fully considered and rejected the possibility of abolishing the bom alive rale and adopting a viability rale instead.” This assertion is wrong in at least two respects. First, it implies that the bom alive rale is presently followed in Connecticut because “the legislature . . . rejected the possibility of abolishing” it. As previously stated, I disagree that such a conclusion can be drawn from an objective examination of this state’s common law or the legislative history of the aggravated assault statute. Second, it suggests that the legislature expressly considered the possibility of eliminating the bom alive rale when it enacted the aggravated assault statute, when in fact it did not.
The only references to the bom alive rale during the legislative proceedings on the fetal homicide and aggravated assault bills were made by Clarke D. Forsythe, president of Americans United for Life, and Bill O’Brien, legislative vice president of Connecticut Right to Life Corporation. Both Forsythe and O’Brien
With respect to language in the aggravated assault statute limiting its application to “the termination of pregnancy that does not result in a Uve birth”; P.A. OS-21; the language implies nothing more than it says. The statute was enacted in direct response to the sensational killing of a pregnant woman and the acute pubhc concern that foUowed regarding the lack of a penalty for the death of her unborn fetus. See 46 S. Proc., Pt. 4, 2003 Sess., p. 1009, remarks of Senator Andrew J.
Insofar as the majority relies on the testimony at the legislative hearings to conclude that the enactment of the aggravated assault statute also represented legislative affirmation of the bom alive mle, it misunderstands the compromise ultimately forged to bridge the stark differences expressed by pro-choice and pro-life advocates who spoke before the judiciary committee. In often eloquent language, pro-life advocates argued that an unborn fetus should be recognized as an independent entity deserving of legal protection and, therefore, that the fetal homicide bill should be passed. See, e.g., Conn.
After considering the foregoing arguments, the legislature was unwilling to choose sides. It thus crafted a solution in which each side got some, but not all, of what it sought in order to gamer broad public support. See, e.g., 46 S. Proc., Pt. 4, 2003 Sess., p. 1010, remarks of Senator Williams (“[T]here’s broad support for this bill. The National Organization of Women and the Connecticut Coalition [for] Choice are joined by the Conference of Catholic Clergy in a unique alliance in support of this legislation.”); id., p. 1013, remarks of Senator Catherine W. Cook (praising “extraordinary work” of former state Representative Peter Nystrom in preceding year “in crafting that very unusual compromise between the pro-life folks and the pro-abortion folks”); id., p.
As previously stated, no member of the judiciary committee engaged in a discussion of the bom alive rule, even when Forsythe and O’Brien mentioned the rule during the committee hearings. In the exchange to which the majority refers involving O’Brien and Representative Farr, Farr did not affirm the existence of the rule but merely asked O’Brien to clarify his comments
In addition to its common-law analysis, which is entirely irrelevant in light of the fact that adoption of the Penal Code in 1969 abrogated our common law of crimes; see, e.g., State v. Ross, supra, 230 Conn. 197; the majority maintains that the bom alive rule fills a “gap” in the law; footnote 54 of the majority opinion; because, but for the existence of that mle, there would be no penalty for the infliction of fatal injuries on a fetus that is subsequently bom alive. I agree that the aggravated assault statute was not intended to address situations in which an assault causes the death of a fetus after it is bom alive. I also believe, however, that the current lack of a penalty in Connecticut for causing such a death does not represent a gap in the law. The legislature merely has determined that an assault of a pregnant woman that results in the termination of her pregnancy is a class A felony. As the legislative history of the aggravated assault statute demonstrates, the legislature declined to grant the fetus independent legal rights in the face of strong opposition by pro-choice advocates, and, therefore, it never has enacted a law directly imposing any type of penalty for causing the death of a fetus, either before or after it is bom. The majority’s mischaracterization of the statute as imposing such a penalty in support of its assertion that a gap in the law exists reflects, at best, a serious misunderstanding of the legislative history and, at worst, a misguided attempt to create a theoretical justification for adopting the bom alive rule.
Contrary to the majority’s claim, it is the majority’s adoption of the bom alive mle, not my interpretation of the relevant statutes and legislative history, that will “[violate] several cardinal principles of statutory construction.” These include the well established canon
To the extent that any lingering doubt remains as to how the murder statute should be construed, I believe that the court must rely on the well established rule of lenity, which directs that any ambiguity in a capital felony statute must be interpreted in favor of the defendant; see State v. Harrell, 238 Conn. 828, 832-33, 838, 681 A.2d 944 (1996); a point I also made in my dissenting opinion in State v. Courchesne, 262 Conn. 537, 597-99, 609-13, 816 A.2d 562 (2003) (Zarella, J., dissenting). In Courchesne, the question before the court was whether, when a defendant has been convicted of capital felony for the “murder of two or more persons at the same time or in the course of a single transaction” under General Statutes (Rev. to 1997) § 53a-54b (8), and the state seeks a death sentence, the state is required to prove the existence of the aggravating factor enumerated in General Statutes § 53a-46a (i) (4), namely, that
As I stated in Courchesne, “[t]he rule of lenity, which embodies the fundamental constitutional principles of due process and the separation of powers; see, e.g., United States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 30 L. Ed. 2d 488 (1971); provides that our death penalty statute should not be applied unless the legislature ‘expressly so intend[s].’ ” (Emphasis in original.) State v. Courchesne, supra, 262 Conn. 598 (Zarella, J., dissenting), quoting State v. Harrell, supra, 238 Conn. 832. The reason why the rule of lenity has become an important due process consideration in this and other jurisdictions is that, “when choice has to be made between two readings of what conduct [the legislature] has made a crime, it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite. . . . This principle is founded on two policies that have long been part of our tradition. First, a fair warning should be given to the world in language that the common world will understand, of what the law intends to
The provision now before the court is General Statutes § 53a-54a (a), which provides in relevant part: “A person is guilty of murder when, with intent to cause the death of another person ... he causes the death of such person or of a third person . . . .” General Statutes § 53a-3 (1) defines “person” as “ahúman being . . . .” The majority states that the statutory provisions are unclear and that the pertinent legislative history “offers no guidance with respect to the issue [of] . . . whether a person who murders a pregnant woman also may be found guilty of the murder of the baby if the baby is bom alive and later dies from the injuries inflicted while the baby is in útero, in the course of the intentional killing of the mother.” The trial court, Damiani, J., likewise indicated in its memorandum of decision on the defendant’s motion to dismiss for lack of probable cause that there is no express statutory authority in Connecticut for the proposition that the definition of “person” under the murder statute includes a fetus that is bom alive and later succumbs to injuries inflicted in útero. See State v. Courchesne, supra, 46 Conn. Sup. 66-67. Consequently, the majority and the
In closing, I return to the words of Justice Holmes, who offered the following additional thoughts when reflecting on the question of whether well established rules of law should be perpetuated: “[I]f we want to know why a mle of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. . . . [W]e find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened [skepticism, that is, toward a deliberate reconsideration of the worth of those mies. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and
See State v. Courchesne, 262 Conn. 537, 555-56 and n.15, 816 A.2d 562 (2003) (declining to apply rule of lenity to interpretation of capital felony statutes).
Because I would not address any of the defendant’s penalty phase claims on the basis of my disagreement with parts II through V of the majority opinion, I decline to take any position with respect to part VI, in which the majority addresses certain of the defendant’s penalty phase claims.
“It is a well settled rule that the law varies with the varying reasons on which it is founded. This is expressed by the maxim, cessante ratione, cesset ipsa lex. This means that no law can survive the reasons on which it is founded. It needs no statute to change it; it abrogates itself. If the reasons on which a law rests are overborne by opposing reasons, which in the progress of society gain a controlling force, the old law . . . must cease to apply as a controlling principle to the new circumstances.” (Internal quotation marks omitted.) State v. Muolo, supra, 118 Conn. 378-79.
In State v. Lamy, 158 N.H. 511, 969 A.2d 451 (2009), a case on which the majority relies, the New Hampshire Supreme Court acknowledged that the bom alive rule is obsolete, stating, “[w]e recognize, as have many other courts, that the bom alive doctrine may be an outdated anachronism often producing anomalous results. . . . However, because the legislature explicitly chose to adopt the rule as statutory law, we cannot mold, change, [or] reverse the doctrine as we could were it still common law. ... In cases of criminal law, [i]t is the province of the legislature to enact laws defining crimes and to fix the degree, extent and method for punishment. . . . Should the legislature find the result in this case as unfortunate as we do, it should follow the lead of many other states and revisit the homicide statutes as they pertain to a fetus.” (Citations omitted; internal quotation marks omitted.) Id., 521. This court, unlike the New Hampshire court, is not bound by legislative acceptance of the bom alive rule. The majority nonetheless embraces it in “blind imitation of the past”; O. Holmes, supra, 10 Harv. L. Rev. 469; even though the rule has been abandoned by the majority of our sister states as “an outdated anachronism often producing anomalous results.” State v. Lamy, supra, 521.
“[T]he expression corpus delicti, as understood in homicide cases, means the body of the crime, and consists of two component parts, the first of which is the death of the person alleged to have been killed, and the second that such death was produced through criminal agency.” State v. Sogge, 36 N.D. 262, 271, 161 N.W. 1022 (1917).
The majority assails the idea that the bom alive rule evolved as a rule of evidence, quoting from the work of two modem commentators who believe that it is “a substantive rule for defining legal personhood.” Footnote 47 of the majority opinion, citing B. Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (Oxford University Press 1992) c. 3, pp. 105-107, and K. Saveli, “Is the ‘Bom Alive’ Rule Outdated and Indefensible?,” 28 Sydney L. Rev. 625, 633 (2006). I am not surprised that a few commentators who support the rule would attempt to diminish the large body of nineteenth century law and analysis on which Forsythe, Taylor and other respected attorneys and experts on medical jurisprudence base their views. Once advanced medical technology has made the rule obsolete, there is no other way to defend or retain it except by transforming it into a substantive element of the crime of murder and severing the temporal connection between the criminal act and the legal status of the victim at the time of the fatal injury. In this regard, both Steinbock, a philosopher, and Saveli express reluctance to accept the evidentiary nature of the bom alive rule because each is advocating for its retention and advancing a theory that the unborn fetus has no legally protected interests. See K. Saveli, supra, 627 (arguing that “a conception of personhood that pays due regard to the intrinsic and relational aspects of [fetal] being has greater potential both to explain the existing criminal law, and to guide future developments, than does a theory based solely on the intrinsic properties of the [fetus],” and acknowledging that her personal “theory” that personhood requires relationship to external world is “consistent with retaining the ‘bom alive’ rule”); see also B. Steinbock, supra, c. 1, p. 41, and c. 3, p. 107. Accordingly, Steinbock and Saveli have no interest in acknowledging the evidentiary basis of the bom alive rule because doing so would make their respective philosophical theories, neither of which, to my knowledge, appears to have been accepted by any court of law, more difficult to defend.
These advances include amniocentesis, ultrasonography and fetal heart rate monitoring. See J. Williams, Obstetrics (22d Ed. 2005) pp. 328, 390, 464-65.
In Commonwealth v. Lawrence, 404 Mass. 378, 383-84, 397, 536 N.E.2d 571 (1989), the court reaffirmed its earlier decision in Cass and upheld the defendant’s conviction of involuntary manslaughter for causing the death of a twenty-seven week old fetus in the course of murdering the mother.
“The principles that govern statutory construction are well established. When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine that meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter . . . .” (Internal quotation marks omitted.) Friezo v. Friezo, 281 Conn. 166,181-82, 914 A.2d 533 (2007). “Because statutory interpretation is a question of law, our review is de novo.” (Internal quotation marks omitted.) State v. Orr, 291 Conn. 642, 650, 969 A.2d 750 (2009).
State v. Cotton, 197 Ariz. 584, 5 P.3d 918 (App. 2000); State v. Hammett, 192 Ga App. 224, 384 S.E.2d 220 (1989); Jones v. Commonwealth, 830 S.W.2d 877 (Ky. 1992); Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997).
The Georgia court acknowledged the more expansive nature of the statute in that state when it observed that “[n]othing in [the statute] limits consideration of the status of the victim to the moment at which the injury is inflicted, since the statute explicitly states that second degree vehicular homicide is committed when a person ‘causes the death of another person.’ ” (Emphasis in original.) State v. Hammett, supra, 192 Ga. App. 225.
The majority also relies substantially on the outmoded rationale of State v. Cotton, supra, 197 Ariz. 584, in part IV of its opinion, in which it considers the due process issues raised by the present case.
That statute provides in relevant part: “A person is guilty of manslaughter in the second degree when:
“1. He recklessly causes the death of another person . . . N.Y. Penal Law § 125.15 (McKinney 2009).
The majority criticizes Aiwohi, describing it as the only case cited in this opinion for the proposition that a temporal nexus is required between the criminal conduct and the victim’s status. See footnote 67 of the majority opinion. The majority is mistaken. I also rely on State v. Hammett, supra, 192 Ga. App. 225, in which the court determined that the vehicular homicide statute at issue contained no language that required a temporal nexus, and, therefore, the defendant in that case was subject to prosecution. See footnote 11 of this opinion. I also cite statutes from Colorado and Oregon that require a temporal nexus. See Colo. Rev. Stat. § 18-3-101 (2) (2009); Or. Rev. Stat. § 163.005(3) (2009). The principal reason whythere are so few contemporary cases that discuss the issue is because the legislatures in the majority of our sister states have enacted fetal homicide statutes, thus making further judicial construction of the relevant murder statutes under the bom alive rule unnecessary. See footnote 15 of this opinion. To the extent that the court in Aiwohi noted that “an overwhelming majority of the jurisdictions confronted with the prosecution of a third party for conduct perpetrated against a pregnant mother, causing the death of the subsequently bom child, uphold the convictions of the third parties”; State v. Aiwohi, supra, 109 Haw. 123; every one of the cases that the court in Aiwohi cited were from jurisdictions that have rejected the bom alive rule by adopting a fetal homicide statute, or involved a manslaughter or reckless homicide statute that did not require proof of intent, unlike the murder statute in this case. Accordingly, the majority’s comments are unpersuasive.
The majority misrepresents my views when it claims that (1) I “concede” that the bom alive rule has been “repudiated” in other jurisdictions as unnecessarily narrow or restrictive because it does not extend to the killing of a fetus that dies in útero, and (2) my purported belief that the rule also should be repudiated in Connecticut as too narrow is “nonsensical” because it requires an assumption that the legislature intended to create an irrational statutory scheme under which it would be a class A felony to kill a fetus that dies in útero and no crime at all to kill a fetus that is bom alive and that subsequently dies from injuries sustained in útero. Footnote 58 of the majority opinion. The majority completely misunderstands my discussion of this matter, and, consequently, it is the majority, not this opinion, that “sets up the proverbial straw man” to attack the opposition. Id.
As previously stated, I believe jurisdictions that have recognized and subsequently abandoned or repudiated the bom alive rule in favor of fetal homicide statutes have done so not merely to expand the class of victims injured in útero, but to restore the temporal connection between the element
The majority’s repeated assertions that I believe this court should “reject” the bom alive rule incorrectly perpetuate the idea that the rule presently exists in Connecticut, a proposition with which I disagree.
The legislature adopted the Penal Code in 1969, and it became effective on October 1, 1971. See, e.g., State v. Skakel, 276 Conn. 633, 776, 888 A.2d 985 (Katz, J., concurring), cert. denied, 549 U.S. 1030, 127 S. Ct. 578, 166 L. Ed. 2d 428 (2006).
See 2 Z. Swift, A System of the Laws of the State of Connecticut (1796).
The fact that this court sometimes has relied on Swift’s treatise in other contexts is irrelevant. Even if the treatise is consulted, it explains that the purpose of the bom alive rule was to determine whether the fetus was alive at the time of the criminal act, and not, as the majority insists, to impose a penalty for the killing of a fetus merely because it was bom alive and thus became a person before it died. See 2 Z. Swift, supra, p. 267.
I use the term “nonviable” fetus throughout this opinion to refer to a previable fetus, or a fetus that has not yet reached the stage in its development that it would be capable of living outside the mother’s womb.
The court in Anonymous cited cases from California, Florida, Illinois, Kentucky, Louisiana, Michigan, New Jersey, Utah and West Virginia. See State v. Anonymous (1986-1), supra, 40 Conn. Sup. 503. All but New Jersey have enacted fetal homicide or feticide statutes.
The majority finds fault with my failure to explain why this state would not have recognized the bom alive rule under the common law. Such speculation on my part is beside the point. The issue before this court never has been raised under our homicide statutes, and, consequently, the bom alive rule never has been judicially recognized or rejected in Connecticut. Consequently, the only relevant question is whether this court should adopt the rule in the present case.
The majority reaches this conclusion on the basis of the following commentary in the Model Penal Code: “Section 210.0 (1) defines the term ‘human being’ to mean a person ‘who has been bom and is alive.’ The effect of this language is to continue the common-law rule limiting criminal homicide to the killing of one who has been bom alive. Several modem statutes follow the Model Code in making this limitation explicit. Others are silent on the point, but absent express statement to the contrary, they too may be expected to carry forward the common-law approach.
“Thus, defining ‘human being’ to exclude a fetus serves the valuable function of maintaining abortion as an area of distinct criminological concern not covered by the law of homicide.” (Emphasis added.) Model Penal Code § 210.1, comment 4 (c) (1980).
On the basis of this commentary, the majority concludes that, because the Connecticut legislature has made no explicit statement regarding the bom alive rule, it may be presumed that the mle has been adopted in this state. I disagree for all of the reasons discussed in this opinion, including that the legislature did not employ the definition of “human being” on which this portion of the Model Penal Code commentary is based and, additionally, that the focus of the commentary is on the killing of a fetus, not on the killing of a fetus that is fatally injured but subsequently bom alive.
See State v. Muolo, supra, 118 Conn. 378 (defining our common law as “the prevailing sense of the more enlightened members of a particular community, expressed through the instrumentality of the courts” [emphasis added]); Brown’s Appeal from Probate, 72 Conn. 148, 151, 44 A. 22 (1899) (“[a]s our jurisprudence developed, the courts applied the principles of the
See footnote 37 of this opinion.
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.” (Emphasis added.) The commission’s comment further explains: “The purpose of this saving clause is to make clear that the provisions of sections 53a-5 to 53a-23, which define the principles of criminal liability and defenses, are not necessarily exclusive. A court is not precluded by sections 53a-5 to 53a-23 from recognizing other such principles and defenses not inconsistent therewith. This does not mean, however, that the court is free to fashion additional substantive offenses, for the [c]ode precludes, by repealing section 54-117, the notion of common law crimes.” (Emphasis added.) Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-4 (West 2007), comment, p. 324.
For several reasons, I disagree with the majority’s assertion that this court, in Ullmann v. State, 230 Conn. 698, 647 A.2d 324 (1994), “expressly disavowed [Valeriano’s] narrow reading ... of the applicability of Swift’s Digest to Connecticut law . . . .” Footnote 41 of the majority opinion. First, this court did not conclude in Valeriano that Swift was never applicable or relevant in construing Connecticut law, but stated that, “[ujnder the circumstances,” which required the court to interpret the concept of proximate cause under Connecticut’s felony murder statute, reliance on Swift’s Digest was “a weak position.” Valeriano v. Bronson, supra, 209 Conn. 91-92 n. 10. Second, the issue in Ullmann involved the interpretation of a contempt statute, not a provision from the Penal Code. See Ullmann v. State, supra, 699. Thus, the court in Ullmann could not have disavowed our conclusion
The majority attacks my puiported assertion that the bom alive rule is not deeply rooted in the common law. As a fair reading of this opinion demonstrates, however, I make no such assertion but merely state that the bom alive rule is not deeply rooted in Connecticut law. As previously explained, our legal precedent has established that “the common law of England ... is not necessarily the common law of Connecticut”; State v. Muolo, supra, 118 Conn. 378; and that Connecticut has defined the common law in its own terms as “the prevailing sense of the more enlightened members of a particular community, expressed through the instrumentality of the courts, as to those rules of conduct which should be definitely affirmed and given effect under the sanction of organized society, in view of the particular circumstances of the time . . . .” (Emphasis added; internal quotation marks omitted.) Dacey v. Connecticut Bar Assn., supra, 184 Conn. 25-26. Consequently, the majority misrepresents my views, and its conclusions reflect a basic misunderstanding of the legal precedent on which they are based.
Public Act 03-21, which is codified as amended at General Statutes § 53a-59c, provides: “(a) A person is guilty of assault of a pregnant woman resulting in termination of pregnancy when such person commits assault in the first degree as provided under subdivision (1) of subsection (a) of section 53a-59 of the general statutes and (1) the victim of such assault is pregnant, and (2) such assault results in the termination of pregnancy that does not result in a live birth.
“(b) In any prosecution for an offense under this section, it shall bo an affirmative defense that the actor, at the time such actor engaged in the conduct constituting the offense, did not know that the victim was pregnant.
“(c) Assault of a pregnant woman resulting in termination of pregnancy is a class A felony.”
Raised House Bill No. 5747 (2002). Hereinafter, all references to the fetal homicide bill are to Raised House Bill No. 5747.
As I previously discussed, the majority makes conflicting assertions with respect to this issue.
The majority’s assertion that the legislature rejected the possibility of “abolishing the bom alive rule and adopting a viability rule instead” because areportonthe aggravated assault statute prepared by the office of legislative research “indicates that the legislature, in making its determination, was well aware of the trial court’s express reliance on the bom alive rule in the present case, as well as the application of the rule by the court in State v.
In light of this legislative history, the majority’s claim that “there is only one possible reason why the legislature opted to include within the protection of [the aggravated assault statute] only those fetuses that are not bom alive, namely, the bom alive rule . . . which operates to protect an infant who suffers injuries in útero but who is born alive and then dies from those injuries,” and its corresponding claim that I “[do not posit] any other conceivable reason why [the statute] excludes from its purview an infant who is bom alive but who subsequently dies from injuries sustained in útero,” misrepresent the record as well as my opinion. Footnote 54 of the majority opinion. The majority also goes on to assert that it is “unwilling to assume” that the legislature could have enacted the statute in response to the specific event in question, namely, the killing of a fetus in útero, without considering the bom alive rule, thus ignoring the fact that the rule is inapplicable in that context and that the statute not only was enacted in response to a very specific crime, but ultimately became known as Jenny’s Law in honor of the victim. Id. I also disagree with the majority’s statement that the legislature would not have enacted the statute if it had not intended to recognize implicitly the bom alive rule. Such comments are completely
The majority reasons that the bom alive rule does not have the same effect as the fetal homicide bill that the legislature rejected because, under the fetal homicide bill, a fetus would have been accorded the same treatment as a person, whereas, under the bom alive rule, “the protection of the homicide statutes is extended only when the fetus is bom alive and, consequently, is no longer a fetus but a child.” Footnote 62 of the majority opinion. This analysis, however, is logically incoherent because, as previously noted, it requires severance of the temporal connection between the criminal act and the status of the victim, and transforms the rule into a substantive element of the crime, neither of which was contemplated under the traditional bom alive rule.
The majority grossly inflates and, in my view, misrepresents, the remarks by Forsythe and O’Brien at the judiciary committee hearings. The hearing on the fetal homicide bill generated approximately 110 pages of transcribed testimony by approximately thirty witnesses. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2002 Sess., pp. 2224-28, 2308-18, 2331-33, 2335-36, 2338-62, 2382-89, 2402-39, 2448-65. Only two witnesses, Forsythe and O’Brien, mentioned the bom alive rule in discussing the bill. Forsythe testified in his initial presentation that he had authored professional articles addressing issues involving the bom alive rule and fetal homicide; id., p. 2402; and that the “lack of [a] remedy” in Connecticut for the killing of a fetus in útero was “due to the outdated and obsolete common law bom alive rule.” Id., p. 2403; see also id., p. 2404 (referring to “the outdated bom alive rule”). Forsythe described the rule as “a rale of location, a rale of evidence”; id., p. 2403; and, in light of modem medical knowledge, as a rule that leads to “absurd results.” Id., p. 2404. Forsythe also indicated that several other states had abolished the bom alive rale by adopting fetal homicide laws. See id., pp. 2412, 2414. Together, these few remarks represented less than one out of fifteen pages of his transcribed testimony and constituted nothing more than his personal opinion that the bom alive rule was part of the common law of this state. Significantly, committee members asked no questions and made no comments in response to Forsythe’s references to the bom alive rule, which were buried in his discussion of the fetal homicide bill. Those few questions that were directed to Forsythe concerned his knowledge of fetal homicide laws in other jurisdictions, which purport to treat the death of a fetus in the same manner as the death of a person, prosecutions for the death of a fetus in other jurisdictions, differences among the states regarding fetal viability limitations under their respective homicide laws, and the applicability of constitutional law relating to abortion. Id., pp. 2404^-2409. O’Brien provided only three pages of transcribed testimony in which he never discussed the bom alive rule. See id., pp. 2417-20. O’Brien was asked only one question about whether he believed the fetal homicide bill should contain a provision on viability, to which he responded in the negative. Id., p. 2420.
To the extent that the majority relies on the concept of a “gap” to justify the imposition of a penalty for the infliction of fatal injuries on a fetus that is subsequently bom alive, its reasoning is flawed. Footnote 54 of the majority opinion. Any new law may be viewed as filling a “gap” because a new law, by definition, is intended to resolve an issue that never has been addressed. Thus, recognition of the fact that every new law is intended to fill a gap renders the concept of a gap to justify adoption of the bom alive rule in the present case essentially meaningless.
I distinguish the majority’s inteipretation of the bom alive mle, which no longer functions as a rale of causation, from the common-law year and a day rule, a rale of causation that “bars a conviction for homicide if the victim does not die within one year and one day of the conduct that caused the death.” Valeriano v. Bronson, supra, 209 Conn. 77. “The year and a day rale can be traced to [a thirteenth century English statute]. The reason assigned for that rale was that if the person alleged to have been murdered die[d] after that time, it [could not] be discerned, as the law presumes, whether he died of the stroke or poison, etc., or a natural death; and in case of life, rule of law ought to be certain. Louisville, E. & St. Louis R. Co. v. Clarke, 152 U.S. 230, 239, 14 S. Ct. 579, 38 L. Ed. 422 (1894), quoting 3 E. Coke, Institutes (2d Ed. 1648) p. 53.” (Internal quotation marks omitted.) Valeriano v. Bronson, supra, 77-78 n.3. As I noted previously, Connecticut never has recognized this common-law rale.
Just as I stated in State v. Courchesne, supra, 262 Conn. 611-12 n.8 (Zaretta, J., dissenting), I do not take up, in the present case, the question of whether the rule of lenity should be applied before or after resorting to other sources of statutory interpretation because I do not believe such sources assist in clarifying the statutes at issue.
Opinion of the Court
Opinion
At approximately 11 p.m. on September 15, 1998, the defendant, Robert Courchesne, and an
The defendant was apprehended and charged in connection with the deaths of Rodgers and Antonia. Specifically, the defendant was charged with two counts of murder in violation of General Statutes § 53a-54a (a)
On appeal to this court,
I
SUPPRESSION CLAIMS
The defendant first claims that the trial court improperly denied his motion to suppress certain statements that he made to the police implicating himself in Rodgers’ murder in violation of his rights under the fourth,
The following facts are necessary to our resolution of the defendant’s suppression claims. The defendant filed a motion to suppress all oral and written statements that he had made to the police — in which he allegedly confessed to murdering Rodgers — on the ground that those statements had been obtained illegally. Thereafter, the trial court, O’Keefe, J., conducted
The state’s first witness, Kennelly, testified that, sometime in the early morning hours of September 16, 1998, Waterbury police received information that the defendant was the last person to be seen with Rodgers before she was found mortally wounded. Acting on this information, Kennelly and Ariola set up a surveillance of the defendant’s house on Sumac Street in Waterbury at approximately 8 a.m. that day. The officers, who were not in uniform, positioned their unmarked police car a short distance away from the defendant’s house so that they could observe any vehicles coming down the street. At approximately 10:15 a.m., the defendant pulled up to the front of his house in a Ford Escort with a female passenger later identified as Wilson. According to Kennelly, at that point, he and Ariola immediately exited their police vehicle and approached the defendant’s vehicle. After identifying himself and Ariola, Kennelly informed the defendant that they were investigating Rodgers’ death and asked the defendant if he “would be kind enough” to go with them to the police station to answer some questions. The defendant replied, “sure, no problem,” and exited his vehicle without being asked to do so. Kennelly characterized the defendant’s demeanor as “calm, cooperative [and] rational,” and further observed that the defendant did not appear to be under the influence of drugs or alcohol.
The defendant then entered Kennelly’s vehicle, and Kennelly transported him to the station. Although Kennelly did not tell the defendant that he did not have to go to the station, Kennelly testified that the defendant was, in fact, free to decline to do so. After the defendant had arrived at the station, he was placed in an interview room and read his Miranda
Pelosi testified for the state that, in the early morning hours of September 16, 1998, Waterbury police learned from Rodgers’ mother and Rodgers’ boyfriend that Rodgers had been with the defendant immediately prior to her death and that Rodgers knew that the defendant was a narcotics user. Sometime between 9 and 10 a.m. that morning, Pelosi drove his unmarked police car to the defendant’s Sumac Street address to participate in the surveillance. Upon his arrival there, Pelosi parked his vehicle at the other end of the street from where Kennelly and Ariola were parked and waited for the defendant. At approximately 10 a.m., Pelosi observed the defendant and Wilson pull into the defendant’s driveway. At that time, Kennelly and Ariola exited their vehicle and approached the defendant’s vehicle. Kennelly then spoke briefly to the defendant. According to
Wilson testified at the suppression hearing for the defendant. She explained that, at approximately 10 a.m. on the day following Rodgers’ murder, she and the defendant, with whom she resided, arrived on Sumac Street in her Ford Escort and noticed that many people in the neighborhood were standing in front of then-houses. Before reaching his residence, the defendant pulled over to ask one of his neighbors whether she had seen Rodgers. The neighbor responded, “[N]o, cause you all murdered her.” The defendant then proceeded to drive down the street toward his residence. When he arrived there, a police car appeared. According to Wilson, the defendant immediately attempted to turn around and to leave, but the police told him “to stop,” and then “blocked him in.” Wilson further testified that the police “made” her and the defendant get out of the vehicle. When asked if she had any choice in the matter, she replied, “I didn’t know. I just did what they told
Oliver testified that she was standing outside her house on Sumac Street in the morning hours of September 16, 1998, when she saw the defendant and Wilson drive up the street. The defendant pulled his vehicle over next to Oliver, and Wilson asked Oliver if she had seen Rodgers. Oliver responded that she had not. The defendant then continued driving toward his house, but a police car was parked nearby. When the defendant saw the police car, he tried to back up and to leave. At that point, however, the police car pulled up beside the defendant’s car, causing him to stop. Oliver could not hear any conversation but observed the defendant exit his vehicle and subsequently enter the officer’s car. Shortly thereafter, Wilson also got out of the vehicle and entered another police car that also had arrived at the scene. Both police cars then departed.
Ariola testified that the only car participating in the surveillance was the car that he and Kennelly were driving and that the officers had parked their car about three houses beyond the defendant’s house on the opposite side of the street. After the defendant arrived with Wilson in Wilson’s Ford Escort, the defendant pulled in front of his residence, waited “[a] few seconds” and then started to drive away. Before the defendant could drive away, however, Ariola moved his car into the middle of the street and stopped so close to the defendant’s car that the defendant could not get by him. The defendant made no further attempts to drive away. Ariola testified that, if the defendant had asked the officers to move, there would have been “no reason” to prevent him from backing up. The officers then exited their car and approached the defendant’s vehicle; Kennelly approached along the driver’s side and Ariola approached along the passenger’s side. After the officers identified themselves, Kennelly told the defendant
The final defense witness was Vega, the defendant’s next-door neighbor. Vega testified that, on the morning of the surveillance, he was standing in his front yard and saw four “marked” police cars block the defendant’s vehicle as the defendant approached his home. According to Vega, the police officers opened the defendant’s car door, “pointed a gun at [the defendant],” and “pulled him out” of the car. Immediately thereafter, the defendant, who was not handcuffed, was placed in one of the police vehicles. Vega stated that he was approximately 600 feet from the scene when he observed the events that formed the basis of his testimony.
Following this testimony, the trial court, O’Keefe, J., denied the defendant’s motion to suppress. In an oral ruling, the court found that the “confrontation or . . . meeting” between the police and the defendant on the morning of September 16,1998, did not have the “indicia of an arrest.” In support of this conclusion, the court observed that the officers did not run up to the defendant or draw their weapons when they approached him.
“Our standard of review of a trial court’s findings and conclusions in connection with a motion to suppress is well defined. A finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .... [When] the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision .... We undertake a more probing factual review when a constitutional question hangs in the balance. ... In the present case, in which we are required to determine whether the defendant was seized by the police, we are presented with a, mixed question of law and fact that requires our independent review.” (Citations omitted; internal quotation marks omitted.) State v. Burroughs, 288 Conn. 836, 843-44, 955 A.2d 43 (2008). “When considering the validity of a . . . stop, our threshold inquiry is twofold. . . . First, we must determine at what point, if any . . . the encounter between [the police officer] and the defendant constitute [d] an investigatory stop ór seizure. . . . Next, [i]f we conclude that there was such a seizure, we must then determine whether [the police officers] possessed a reasonable and articulable suspicion at the time the seizure occurred.” (Citations
“Under the fourth amendment to the United States [constitution ... a police officer is permitted in appropriate circumstances and in an appropriate manner to detain an individual for investigative purposes if the officer believes, based on a reasonable and articulable suspicion that the individual is engaged in criminal activity, even if there is no probable cause to make an arrest. Alabama v. White, 496 U.S. 325, 330-31, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990); Terry v. Ohio, [392 U.S. 1, 22, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)]; State v. Mitchell, 204 Conn. 187, 194-95, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 293, 98 L. Ed. 2d 252 (1987). Reasonable and articulable suspicion is an objective standard that focuses not on the actual state of mind of the police officer, but on whether a reasonable person, having the information available to and known by the police, would have had that level of suspicion.
“[I]n justifying [a] particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, supra, 392 U.S. 21 .... In determining whether a detention is justified in a given case, a court must consider [whether], relying on the whole picture, the detaining officers had a particularized and objective basis for suspecting the particular person stopped of criminal activity. When reviewing the legality of a stop, a court must examine the specific information available to the police officer at the time of the initial intrusion and any rational inferences to be derived therefrom. ... A recognized function of a constitutionally permissible stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. . . . State v. Lipscomb, 258 Conn. 68, 75-76, 779
“In addition, [e]ffective crime prevention and detection . . . [underlie] the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for proposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest. Terry v. Ohio, supra, 392 U.S. 22. Therefore, [a]n investigative stop can be appropriate even [when] the police have not observed a violation because a reasonable and articulable suspicion can arise from conduct that alone is not criminal. ... In evaluating the validity of such a stop, courts must consider whether, in light of the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Internal quotation marks omitted.) State v. Colon, 272 Conn. 106, 149-50, 864 A.2d 666 (2004), cert. denied, 546 U.S. 848, 126 S. Ct. 102, 163 L. Ed. 2d 116 (2005).
This court also has recognized that “[t]he test enunciated by the United States Supreme Court [regarding] whether an investigative stop passes constitutional muster balances the nature of the intrusion [on] personal security against the importance of the governmental interest inducing the intrusion. See United States v. Hensley, [469 U.S. 221, 228, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)]. A strong law enforcement interest has been particularly recognized in the context of felonies or violent crimes, because ‘it is in the public interest that the crime be solved and the suspect detained as promptly as possible.’ Id., 229. Furthermore, when the situation in which a suspect has been detained has
“The determination of whether a reasonable and articulable suspicion exists rests on a two part analysis: (1) whether the underlying factual findings of the trial court are clearly erroneous; and (2) whether the conclusion that those facts gave rise to such a suspicion is legally correct.” (Internal quotation marks omitted.) State v. Santos, supra, 267 Conn. 504 — 505.
The state does not directly address the propriety of the court’s finding that the encounter between the defendant and the police officers in the street in front of the defendant’s house did not constitute a seizure. The state contends, however, that, even if we assume, arguendo, that the officers’ conduct did constitute a seizure, the court properly concluded that the seizure was a lawful Terry stop. In particular, the state contends that the stop satisfied the requirements of Terry because it was based on the officers’ reasonable, articulable suspicion that the defendant was involved in Rodgers’ murder and because the stop was limited in scope and duration, lasting no longer than necessary to effectuate its purpose of inquiring whether the defendant would be willing to answer some questions about Rodgers and the circumstances surrounding her death. The defendant does not challenge the court’s finding that the facts in existence at the time of the stop gave rise to a reasonable, articulable suspicion on the part of the police officers to justify a Terry stop.
In response, the state maintains that the only aspect of the stop that even arguably could be characterized as involving a degree of compulsion or force was the officers’ use of their unmarked police vehicles to prevent the defendant from driving away. The state contends, however, that, when viewed in light of the totality of circumstances, the officers’ blocking the defendant’s vehicle so that he could not leave before the officers were able to speak to him was a reasonable means of maintaining the status quo so that the officers could complete the purpose of the investigatory stop. In other words, the state asserts that the challenged police action did not transform the stop into an arrest.
“A Terry stop that is justified at its inception can become constitutionally infirm if it lasts longer or becomes more intrusive than necessary to complete the investigation for which that stop was made. . . . Like the determination of initial justification, this inquiry is fact-bound.” (Citations omitted; internal quotation marks omitted.) State v. Mitchell, supra, 204 Conn. 197. Whether the detention of a suspect exceeds the scope of a permissive investigative stop, however, is a question of law. See, e.g., State v. Nash, 278 Conn. 620, 641, 899 A.2d 1 (2006).
“One function of a constitutionally permissible Terry stop is to maintain the status quo for a brief period of time to enable the police to investigate a suspected crime. A police officer who has proper grounds for stopping a suspect has constitutional permission to immobilize the suspect briefly in order to check a description or an identification, [as] long as his conduct is strictly tied to and justified by the circumstances [that] rendered its initiation permissible. . . . Determination of the means that are reasonably necessary to maintain the status quo necessarily depends on a fact-bound examination of the particular circumstances of the particular governmental intrusion on the personal security of a suspect.” (Citations omitted; internal quotation marks omitted.) State v. Braxton, 196 Conn. 685, 689, 495 A.2d 273 (1985). “A police officer who has articulable grounds to believe that a crime has been committed and to detain someone who may be implicated in that crime must be permitted to make reason
The defendant claims that two or three armed officers surrounded him, ordered him out of his vehicle and used undue force in detaining him. The defendant’s characterization of what occurred, however, is not fully consistent with the trial court’s findings concerning the officers’ conduct. As we previously have indicated, although the court made only limited factual findings with respect to the encounter between the police and the defendant, it determined that the confrontation had none of the indicia of an arrest because the officers “didn’t have any guns out, [and] they didn’t run up to [the defendant].” The court further found that, although the officers “did stop [the defendant’s] car” by pulling in front of it, that action was the only way for them to get the defendant’s attention so that they could talk to him. At no time did the police ever handcuff the defendant or otherwise inform him that he was not free to leave. Moreover, Kennelly testified that he had asked the defendant if he would be willing to accompany him to the station for questioning. Although one witness, namely, Vega, testified that the officers actually had drawn their guns, the court did not credit his testimony and was not required to do so. None of the other witnesses, including Wilson, the defendant’s girlfriend, described any conduct on the part of the officers that could be construed as unduly coercive, threatening or oppressive. Although it is true that Kennelly and Ariola approached the defendant’s vehicle from both sides, this was not unreasonable in view of the fact that the defendant was accompanied by Wilson, who was sitting in the front passenger seat. Because the suppression hearing testimony fully supports the trial court’s factual findings and its conclusion concerning the propriety of the Terry stop, we see no reason to disturb those findings and conclusions.
Connecticut courts have found the patdown of a suspect, the search of a suspect’s vehicle and the approach of officers with their guns drawn to be within the permissible bounds of a Terry stop depending on the circumstances. Thus, in State v. Wilkins, 240 Conn. 489, 692 A.2d 1233 (1997), for example, this court held that an investigatory detention was lawful when a uniformed officer, following a traffic stop of a vehicle during which its two occupants engaged in furtive conduct, approached the vehicle with his gun drawn, ordered the occupants out and, thereafter, conducted a patdown search of the occupants and a limited search of their vehicle for weapons. Id., 493-94, 501-504; see also State v. Casey, 45 Conn. App. 32, 41-44, 692 A.2d 1312 (actions of police officers did not exceed permissible limits of investigative detention under Terry, even though police officers removed defendant and other suspects from vehicle at gunpoint, searched vehicle, defendant and other suspects twice, handcuffed defendant and other
Guided by the general principles articulated in the foregoing cases and the policy considerations underlying Terry, we reject the defendant’s claim that the officers engaged in conduct that was more intrusive or more coercive than necessary to effectuate a legitimate Terry stop. In view of the fact that the officers were investigating a murder that had occurred in the area only a few hours earlier and the fact that the defendant was the last person seen with the victim, the officers’ conduct in detaining him briefly was not unreasonable. The only police conduct that fairly may be characterized as coercive was the action undertaken by the officers in blocking the defendant’s vehicle to ensure that he would not leave the area before they could speak to him. In light of the defendant’s attempt to leave almost immediately after he pulled up to his house, we agree with the trial court that blocking the defendant’s vehicle likely was the most efficacious way to maintain the status quo so that the police could gain the defendant’s attention. Other courts agree that such action ordinarily
Furthermore, as we previously indicated, the officers, who were driving an unmarked car and were not in uniform, approached the defendant’s vehicle without drawing their guns and merely requested that the defendant accompany them to the police station for questioning about the murder. Thus, other than Vega, whose testimony the trial court expressly discredited, no witness described the officers as having engaged in any conduct that reasonably may be deemed to be unduly intimidating or coercive under the circumstances with which the police officers were confronted when they stopped the defendant.
The defendant cites several cases for the proposition that the officers used a level of force and coercion that exceeded the limits of a lawful Terry stop. The officers in those cases, however, used far more coercive techniques than those that were employed by the officers in the present case. See Park v. Shiflett, 250 F.3d 843, 851-52 (4th Cir. 2001) (defendant’s liberty was curtailed to degree associated with formal arrest because he would not have felt free to leave after being thrown
The defendant also claims that he did not agree voluntarily to go to the police station to be questioned about the murder. He contends that his purported consent to speak to the police was the fruit of his illegal seizure and that, even if it was not, his agreement merely reflected his submission to lawful authority. We reject the defendant’s contentions.
We first address the defendant’s claim that his consent was invalid because it was the fruit of an illegal seizure. “Courts have frequently held that a purportedly voluntary consent given after an illegal arrest or search is nonetheless a tainted fruit when that consent was given very soon after the illegal police action. See, e.g., United States v. Recalde, 761 F.2d 1448, 1459 (10th Cir. 1985) (consent given promptly after illegal arrest invalid); United States v. Gooding, 695 F.2d 78, 84 (4th Cir. 1982) (consent occurring ‘within the same brief continuous encounter’ as illegal seizure invalid); State v. Raheem, 464 So. 2d 293, 297-98 (La. 1985) (consent given within forty minutes of arrest invalid). These decisions imply that a consent given in very close temporal proximity to the official illegality is often a mere submission or resignation to police authority and not necessarily an act of free will.” State v. Cates, 202 Conn. 615, 621-22, 522 A.2d 788 (1987). In light of our determination that the defendant’s detention was lawful under
The defendant next asserts that, even if he was the subject of a lawful investigatory stop, he did not consent voluntarily to go to the police station for questioning bécause, under the totality of the circumstances, his agreement to do so was the product of police coercion. The defendant also contends that the evidence demonstrates that he merely was submitting to lawful authority. We reject these claims.
It is well established that “[t]he question [of] whether consent ... has . . . been freely and voluntarily given, or was the product of coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances. . . . and, ultimately, requires a determination regarding the putative consenter’s state of mind.” (Citation omitted; internal quotation marks omitted.) State v. Reynolds, 264 Conn. 1, 44, 836 A.2d 224 (2003), cert. denied, 541 U.S. 908, 124 S. Ct. 1614, 158 L. Ed. 2d 254 (2004). “The state must affirmatively establish that the consent was voluntary; mere acquiescence to a claim of lawful authority is not enough to meet the state’s burden. ... As a question of fact, it is normally to be decided by the trial court [on] the evidence before that corut together with the reasonable inferences to be drawn from that evidence.
. . . We may reverse [the trial court’s factual] findings on appeal only if they are clearly erroneous.” (Internal quotation marks omitted.) State v. Azukas, 278 Conn. 267, 275, 897 A.2d 554 (2006). “We are particularly mindful that all of these factual findings revolve principally around the credibility of the witnesses who appeared before the trial court, the evaluation of which is left to the trial court’s sound discretion because of its function to weigh and interpret the evidence before it.” Id., 277.
Similarly, in State v. Colon, supra, 272 Conn. 107, we observed that the defendant, Ivo Colon, voluntarily had accompanied the police to the station, where he confessed to the fatal beating of a two year old child.
Other courts also have concluded that a defendant’s consent to accompany the police to the station was voluntary when the defendant appeared willing to do so and there was no evidence of coercion. See, e.g., United States v. Mendenhall, 446 U.S. 544, 557-58, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (respondent voluntarily agreed to accompany federal agents to airport office after being approached on concourse and asked by agents if she would do so and there was no threat or show of force); United States v. Kimball, 25 F.3d 1, 8 (1st Cir. 1994) (defendant voluntarily consented to accompany officers to police station because, even though he was not told that he was free to leave or free to refuse further questioning, he expressly agreed to go to station when asked several times, never indicated any unwillingness to do so, and officers did not handcuff, physically restrain, threaten to arrest, coerce or
Turning to the present case, we conclude that the trial court properly found that the defendant voluntarily had agreed to go to the police station for questioning. There is no evidence that the officers forced or otherwise pressured the defendant to accompany them to the station. In fact, the testimony indicated that the defendant was cooperative with the police, who were not in uniform and did not display their weapons, and that he got out of his vehicle without being asked to do so. The defendant never was restrained, his demeanor was described as calm, and he did not appear to be under the influence of alcohol or drugs. Finally, and perhaps most importantly, the evidence that the state adduced demonstrated that the police had asked the defendant if he would be willing to accompany them
The defendant nevertheless has identified twenty-five “circumstances,” or reasons,
The defendant also claims that his consent was involuntary because the officers (1) blocked him from leaving the scene, (2) were armed, (3) approached on both sides of his vehicle, (4) did not allow him to move his vehicle from the middle to the side of the road, (5) sought his consent immediately after he was seized, (6) were blunt in their manner, and (7) had him ride to the pohce station in the backseat of their vehicle instead of having him drive his own vehicle. We disagree with the defendant’s contention that these facts required a finding that his consent had not been obtained voluntarily. Although these facts are relevant to the determination of whether the defendant’s consent was voluntary, they are not necessarily dispositive of that issue, and the trial court was not bound to treat them as such. Indeed, in light of the other facts that demonstrate the defendant’s willingness to accompany the police, the trial court reasonably concluded that the defendant had agreed to do so voluntarily.
II
BORN ALIVE RULE
The defendant next claims that, in denying his motion to dismiss the murder count and the two capital felony counts predicated on Antonia’s death, the trial court, Damiani, J., improperly invoked the bom alive mle in connection with its determination that Antonia was a “person” within the meaning of this state’s murder and capital felony statutes. The defendant contends that there is no precedent in this state pursuant to which a defendant may be held hable for a homicide that is founded on an injury inflicted on a fetus and, even if such authority existed, the mle is obsolete and should not be followed. The defendant further claims that the bom alive mle is inconsistent with, and thus abrogated by, our Penal Code, because, under the Penal Code, “criminal liability [is premised] on attendant circumstances that must exist at the time the [crime was committed].” The defendant maintains that, in light of this principle, he could not have murdered Antonia within the meaning of the Penal Code because of the lack of a temporal nexus between his criminal conduct and her status as a person. In a related vein, the defendant, relying on his contention concerning the inapplicability of the bom alive mle, further maintains that his intent to kill Rodgers could not be transferred to Antonia under the transferred intent provisions of § 53a-54a (a) because he engaged in the conduct resulting in Antonia’s death when Antonia was not a person. Finally, the defendant claims that the trial court’s “novel” application of the “twin legal fictions” of the bom alive mle and the doctrine of transferred intent, as a basis for concluding that the state could prosecute him for mur
The following facts and procedural history are relevant to our resolution of these claims. On February 11, 1999, the trial court, Damiani, J., conducted aprobable cause hearing on the two counts of murder and the two counts of capital felony with which the defendant had been charged. Because three of the counts require proof by the state that Antonia was bom alive, namely, the counts alleging the murder of Antonia, the murder of a person under the age of sixteen (Antonia) and the murder of two or more persons (Rodgers and Antonia) in a single transaction, the state adduced testimony from Richard S. Palmer, the emergency department physician who delivered Antonia via cesarean section.
On the same day as the probable cause hearing, the defendant filed a motion to dismiss the capital felony charges and the charge relating to Antonia’s murder, and made a request for a finding of no probable cause. In the motion to dismiss, the defendant asserted that these charges were legally deficient because, inter alia, (1) Antonia was a fetus when the defendant inflicted the injuries that resulted in her death, and, as a matter of law, a fetus is not a person under this state’s murder and capital felony statutes, (2) the evidence was insufficient to establish the requisite “concurrence between the [necessary] mens rea and the actus reus of the charged offenses,” and (3) prosecuting the defendant under the bom alive rule violates his right to notice under the relevant due process and ex post facto provisions of the federal constitution.
On May 19,1999, the trial court denied the defendant’s motion to dismiss and request for a finding of no probable cause. State v. Courchesne, 46 Conn. Sup. 63, 757 A.2d 699 (1999). In its memorandum of decision, the trial court characterized the fundamental question presented as “whether the defendant can be tried for mur
In reaching its determination, the trial court also relied on the common-law bom alive rule. See id., 67-69. The court explained that, under that rule, “the death of a fetus could stand as a basis for murder as long as the fetus was bom alive and subsequently died of injuries
Thereafter, the defendant waived his right to a jury trial for purposes of the guilt phase of the case, and his case was tried before the panel. On September 17, 2001, following that trial, the panel issued a written decision finding the defendant guilty of all charges. With respect to the counts of the information relating to Antonia’s murder, the panel found that the definition of “person” under Connecticut law “includes those who are bom and are alive,” and, therefore, for purposes of § 53a-3 (1), a human being is “a person who has been ‘bom alive.’ ” After observing that “[t]he law of the case is consistent with this . . . [conclusion],” the panel further stated that “the state has proven beyond a reasonable doubt that Antonia . . . was bom alive” and, consequently, that she is “a person” within the meaning of this state’s murder and capital felony statutes. The panel further explained that the state had proven that the defendant, with the intent to cause the death of Rodgers, had caused the death of Antonia in violation of the provision of § 53a-54a (a) pursuant to which a person is guilty of murder “when, with intent to cause
The defendant subsequently filed a motion for articulation of several legal conclusions and factual findings made by the panel in its written decision. The panel granted the motion only as to one legal conclusion,
Before turning to the merits of the defendant’s claims, we first set forth the applicable standard of review.
The defendant’s claim also raises an issue of statutory interpretation over which our review is plenary. E.g., Stiffler v. Continental Ins. Co., 288 Conn. 38, 42, 950 A.2d 1270 (2008). “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. ... In seeking to determine the meaning, General Statutes § l-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of
With these principles in mind, we commence our review of the defendant’s claim with an examination of the relevant statutory language. General Statutes § 53a-54a (a) provides in relevant part that “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .” “Person” is defined for the purpose of the homicide statutes as a “human being . . . .” General Statutes § 53a-3 (1). The term “human being,” however, is not defined statutorily. Moreover, as the trial court correctly observed, the legislative his
When the language and legislative history of a criminal statute do not resolve the question of statutory interpretation presented by a particular case, this court “may turn to the parallel statutory provisions set forth in the Model Penal Code and the [revised] New York . . . Penal Law, effective September 1, 1967, for guidance”; (internal quotation marks omitted) State v. Havican, 213 Conn. 593, 601, 569 A.2d 1089 (1990); because “[t]he drafters of [our Penal Code] relied heavily [on] the Model Penal Code and various state criminal codes, especially the [P]enal [Law] of New York. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 1, 1969 Sess., p. 11.” State v. Hill, 201 Conn. 505, 516-17, 523 A.2d 1252 (1986); see also State v. Henry, 253 Conn. 354, 363, 752 A.2d 40 (2000) (“[w]e note that our Penal Code is modeled after the New York Penal [Law]”); State v. Desimone, 241 Conn. 439, 456, 696 A.2d 1235 (1997) (legislature relied on “the interpretations of the American Law Institute’s Model Penal Code and the New York [P]enal [Law] . . . when it revised the state [P]enal [C]ode in 1969” [internal quotation marks omitted]); State v. Anonymous (1986-1), supra, 40 Conn. Sup. 500 (“[t]he murder section of [this state’s] [P]enal [C]ode was based partly on the [revised] New York
“In its simplest statement, the ‘bom alive rule’ prescribes that only one who has been bom alive can be the victim of homicide. Causing the death of a fetus, whether viable or not, was not considered homicide at common law. If, however, the fetus was bom and then died of injuries inflicted prior to birth, a prosecution for homicide could be maintained. Requirements for proof of live birth were . . . stringent: ‘the fetus must have been totally expelled from the mother and have shown clear signs of independent vitality.’ ” Commonwealth v. Booth, 564 Pa. 228, 240, 766 A.2d 843 (2001). “At least two reasons, both deriving from the state of medical knowledge in centuries past, may be discerned for such requirements. First, owing to the high incidence of prenatal mortality and stillbirths, it was exceedingly difficult to determine that a fetal death or stillbirth had resulted from a defendant’s act and not from natural causes. Second, because the fetus was considered to be dependent [on], and therefore essentially a part of, its mother, a prosecution for homicide could not be maintained unless it could be shown that the fetus had become a person separate from its mother.” Id., 241. As one court in Australia recently explained: “The law presumed that all children were bom dead and the fact of live birth had to be established by evidence. . . . Usually such proof was not difficult, but problems arose when a child died soon after birth and there was no, or little, direct evidence of what had happened at or immediately after birth.” (Citations
The commentaries of one of Connecticut’s most prominent legal scholars, former Chief Justice Zephaniah Swift, a member of this court from 1808 until 1819, reveal that the bom alive rule was a component of the state’s homicide laws from its earliest days. See 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) p. 299. In his scholarly and authoritative treatise on Connecticut law, Swift states: “The [s]tatute respecting murder enacts, that if any person shall commit any wilful murder, upon malice, hatred or cruelty, not in a man’s just and necessary [defense], nor by casualty against his will, or shall slay or kill another through guile, or by poisoning, or other such atrocious practices, he shall be put to death. The common law definition of murder is when a person of sound memory and discretion, unlawfully killeth any reasonable creature in being, and in the public peace, with malice aforethought, either express or implied. It is evident that the statute is made in affirmance of the common law. . . .
“The person killed, to constitute murder, must be actually in existence. To kill a child in its mother’s womb, is not murder, but a great misdemeanor, but if the child be bom alive, and then die by reason of the injury it suffered in the womb, it will be murder in him who caused it.” Id., pp. 298-99. A similar assertion concerning the vitality of the bom alive rule also is contained in a second commentary, namely, A Digest of the Laws of the State of Connecticut, that also was originally authored by Swift. Swift stated therein: “Felonious [h]omicide is of two kinds, [m]urder and [m]an-slaughter. Murder is defined to be where a person of sound memory, and discretion, unlawfully kills any reasonable creature, in being, and in the peace, with malice aforethought express or implied. . . .
“Although some of those decisions were based [on] statutes expressly defining homicide to include the deaths of those who have been bom alive, the absence of such language does not dictate a contrary inteipretation. In [State] v. Cornelius, 152 Wis. 2d 272, [448 N. W.2d 434 (App. 1989)], the defendant argued that, notwithstanding the inclusion of the bom alive mle in the statutory definition of ‘human being,’ he could not be prosecuted for homicide for the death of a child resulting from the infliction of prenatal injuries. [Id., 279.] In rejecting the claim, the court noted that Wisconsin (like Arizona [and Connecticut]) had abolished common law crimes in favor of a criminal code. See [id.] Nevertheless, the court observed that common law mies not in conflict with the code were retained . . . and thus concluded that it would have employed the bom alive mle in interpreting the homicide statute even absent a statutory reference to the mle. See id.” State v. Cotton, 197 Ariz. 584, 589, 5 P.3d 918 (App. 2000); see also id., 586, 590-91 (infant who died twenty-four hours after birth from injuries sustained in útero when mother was shot in head was “person” within meaning of Arizona homicide statutes). This is trae in Connecticut, as well. See, e.g., Gore v. People’s Savings Bank, 235 Conn. 360, 382, 665 A.2d 1341 (1995) (statute shall not be constmed as altering common law unless statutory language clearly so requires); Dart & Bogue Co.
As the defendant correctly notes, recent advances in medical science have prompted a number of state courts to depart from the bom alive rule in favor of a rule of viability, under which “a viable fetus can be the victim of a homicide,” regardless of whether it is bom alive. (Emphasis added.) Commonwealths. Morris, 142
Notwithstanding the recent trend in other jurisdictions toward recognizing a viable fetus as a person for purposes of the homicide statutes of those jurisdictions,
“(c) Assault of a pregnant woman resulting in termination of pregnancy is a class A felony.”
Public Act 03-21, also known as “Jenny’s Law,” was enacted in response to the December 31, 2001 murder of Jenny McMechen, who was thirty-six weeks pregnant at the time she was shot to death by Michael Latour. See State v. Latour, 276 Conn. 399, 401, 886 A.2d 404 (2005). Because the fetus she was carrying died in útero, the bom alive rule operated to bar the state from treating the death of the fetus as murder, and, presumably as a consequence, Latour was charged with only one count of murder, that is, the murder of McMechen. See id. Indeed, at the time McMechen was murdered, our Penal Code contained no provision pertaining to the
Clarke D. Forsythe, president of Americans United for Life and a leading opponent of the common-law bom alive rule,
“The lack of remedy in the law is due to the outdated and obsolete common law bom alive mle which pre
“It is a rule of location, a rule of evidence . . . that has no gestation[ai] time limitation and thus, a charge of homicide can be brought if a criminal assault results in miscarriage at any time [during] gestation, as long as the child dies after expulsion from the womb. . . .
“[W]hile [the rule] may have made medical sense four centuries ago when it was created in 1601 in English courts, it has been rendered obsolete by modem medical science. With modem medical science, the application of the bom alive rule leads to absurd results. Here in Connecticut, a prenatal assault that results in a miscarriage and death after birth at one month gestation can be charged as a homicide even though the fetus is only a month old. While a prenatal assault, as in the case of . . . McMechen, at eight months or nine months that results in a stillbirth, can never result in a charge of homicide.” (Emphasis added.) Id., pp. 2403-2404; see also id., pp. 2417-19, remarks of Bill O’Brien, legislative vice president of Connecticut Right to Life Corporation. Thus, those testifying in favor of the bill acknowledged that its passage would serve to abrogate the bom alive rule, which, they also acknowledged, was embodied in the common law of this state. Members of the judiciary committee both for and against the bill questioned these witnesses at some length in an effort to understand the rationale underlying the bill, its ramifications, and the extent to which other states had enacted similar legislation.
On March 25, 2002, Substitute House Bill No. 5747, entitled “An Act Concerning Assault of a Pregnant Woman,” was reported favorably out of the judiciary committee. The bill was described by one senator as a “compromise” between the pro-life and pro-choice groups. See 46 S. Proc., Pt. 4, 2003 Sess., p. 1013, remarks of Senator Catherine W. Cook; see also id., p. 1010, remarks of Senator Donald E. Williams, Jr. (noting “broad support” for bill and describing “unique alliance” between pro-choice and pro-life groups in supporting proposed legislation). Although the House passed the substitute bill, the Senate never acted on it before the expiration of the 2002 legislative session.
The substitute bill was resurrected in the 2003 session as Senate Bill No. 355. A hearing on the bill was held on February 10, 2003. Susan Lloyd Yolen, chairperson of the Connecticut Coalition for Choice, testified that “the language contained in [the bill] is the positive result of compromise that took place last [s]ession. In the generally acrimonious battle over reproductive rights, which has often centered on the questions of what status and rights are accorded to the fetus, the wording of this bill stands as a rare example of accord. Sponsors of last year’s bill assured the pro-choice community that it was not their intent to establish language that would erode abortion rights . . . [but that] would help mitigate the injustice done when a woman, pregnant with a wanted child, is harmed or killed by an assailant, and her pregnancy is ended. The resulting language was the result of a good faith effort to reach agreement on
Although many of those who had testified the previous year in support of the 2002 bill also testified in support of the 2003 bill, some complained that the bill did not go far enough because it did not define the term “person” in our Penal Code to include a viable fetus and, thus, did not serve to abolish the bom alive mle. For example, O’Brien testified that the bill “continues Connecticut’s adherence to [the] medically obsolete . . . bom alive rule which was [recognized] in 1601.” Id., p. 424. O’Brien explained that “[a] child no longer needs to be bom alive for science to prove whether or not the child was alive at a certain time in the womb” and implored the legislature to “move Connecticut’s courts and the law out of the [1600s] and abandon the bom alive mle to join other more technologically sophisticated states in the [twenty-first] century in using modem medical science to determine if an unborn child’s injuries or death resulted from some natural cause or from an assault.” Id.; see also id., pp. 668-69, 671, remarks of Clarke Forsythe (arguing that “the [legislature should abolish the obsolete and outdated bom alive mle in Connecticut” and suggesting different language in 2003 bill that would serve to abolish mle while protecting reproductive freedoms of women). Thus, some continued to advocate for the abolition of the bom alive rale, and members of the judiciary committee continued to be actively involved in that discussion.
“This new crime does not affect the murder statutes. Under Connecticut case law, a person cannot be charged with murder of a baby unless the baby is bom alive and lives for some period of time.” (Emphasis added.) Office of Legislative Research, Research Report No. 2003-R-0488, supra.
In light of the centuries old bom alive rule — which, as we have explained, has been universally recognized by courts and commentators throughout the country as deeply rooted in the common law — and the passage of and legislative history surrounding P.A. 03-21, we conclude that the trial court properly determined that
We note, furthermore, that, under the position that the defendant advances, he would not be subject to any greater penalty because Rodgers was eight and one-half months pregnant with Antonia than he would have been if she had not been pregnant at the time of her death. This result is a necessary consequence of the defendant’s contention that the bom alive mle was not embodied in our statutory scheme when he attacked and killed Rodgers; the defendant would be subject to criminal liability for Rodgers’ murder and nothing more. We are unwilling to presume that the legislature intended such a result, especially in light of the clear legislative history of P.A. 03-21.
Justice Zarella, like the defendant, contends that we should decline to recognize the bom alive rale because it is obsolete. It is true that the rale gained widespread acceptance at a time when it was not possible to determine whether a fetus was alive in útero. In part for that reason, the law required the state to prove a live birth to guard against the possibility that the fetus was not alive when the defendant engaged in the prohibited conduct. Of course, advances in medical science have
We are not at liberty to follow the lead of other states in adopting a broader construction of our murder statute to include the killing of a fetus, however, because, as we previously discussed, our legislature took a markedly different approach from the majority of states when, in 2003, it made it a crime under P.A. 03-21 to commit an assault against a pregnant woman that causes the termination of pregnancy that does not result in a live birth. For the reasons that follow, the enactment of P.A. 03-21 provides yet another convincing reason why recognition of the bom alive rale is the only appropriate approach to take with respect to the constmction of our murder statute, as that statute is applied to the factual scenario presented.
“[Consequently, before opting to recognize unborn children as potential homicide victims] the legislature must weigh very carefully a countervailing concern: the potential erosion of constitutionally protected reproductive freedoms. Many pro-choice advocates understandably worry that fetal homicide laws encroach on reproductive freedoms and could ultimately result in the outlawing of abortion altogether. Couched in these terms, it is unsurprising that many oppose passage of a fetal homicide law, not because they do not wish to protect the life of a fetus, but because the issue implicates the politics of reproductive rights.” D. Curran, note, “Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws,” 58 Duke L.J. 1107, 1109-10 (2009).
The legislative history and debate surrounding the enactment of P.A. 03-21
Disregarding the unmistakable import of P.A. 03-21 and the legislative debate that preceded its enactment,
Moreover, in light of the policy decision of the legislature that led to the enactment of P.A. 03-21, judicial abrogation of the bom alive rule would lead to a result that is both unprecedented and absurd; in that event, a person who fatally injures a fetus that dies in útero would be subject to severe criminal penalties under P.A. 03-21, whereas that same person would be subject to no criminal sanction for inflicting those same injuries if the fetus is bom alive and subsequently dies from the injuries inflicted in útero. Of course, no state ever has approved — or ever would approve of — such a result, yet that is the result that Justice Zarella would have us achieve by rejecting the bom alive rule. Justice Zarella nevertheless accuses us of “invadfing] the legislative prerogative” and “violat[ing] the separation of powers” by declining to ascribe to the legislature such a bizarre and irrational intent. On the contrary, it is the
Not surprisingly, the interpretation that Justice Zarella advances violates several cardinal principles of statutory construction. For example, this court repeatedly has stated “that the legislature, in amending or enacting statutes, always [is] presumed to have created a harmonious and consistent body of law . . . .” (Internal quotation marks omitted.) In re Judicial Inquiry No. 2005-02, 293 Conn. 247, 262, 977 A.2d 166 (2009). Moreover, “[j]ust as the legislature is presumed to enact legislation that renders the body of the law coherent and consistent, rather than contradictory and inconsistent . . . courts must discharge their responsibility, in case by case adjudication, to [ensure] that the body of law— both common and statutory — remains coherent and consistent.” (Internal quotation marks omitted.) Loughlin v. Loughlin, 280 Conn. 632, 644, 910 A.2d 963 (2006). Thus, “we are required to read statutes together when they related to the same subject matter .... Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction.” (Emphasis added; internal quotation marks omitted.) Teresa T. v. Ragaglia, 272 Conn. 734, 748, 865 A.2d 428 (2005). In other words, “[t]he General Assembly is always presumed to know all the existing statutes and the effect that its action or non-action will have [on] any one of them. And it is always presumed
The statutory interpretation that Justice Zarella urges is wholly incompatible with each and every one of these fundamental principles because that interpretation requires us to presume either that the legislature enacted P.A. 03-21 with the intent to achieve an absurd result or that the legislature was oblivious to the bizarre consequences of its action. For obvious reasons, neither presumption is tenable. Indeed, it is particularly indefensible to indulge in a presumption that achieves such a bizarre and irrational result when, as in the present case, an alternative interpretation — one that has deep roots in the common law and is firmly predicated on the pertinent legislative history and genealogy — leads to a perfectly reasonable and logical result.
Justice Zarella nevertheless seeks to justify his refusal to recognize the decision of the legislature to treat the killing of a fetus in útero as an aggravated assault on the mother and the killing of an infant who
Indeed, to whatever extent one reasonably might disagree with the distinction that the legislature has
Under § 53a-54a (a), a person commits the crime of murder when, with the intent to cause the death of another person, he causes the death of that person or of a third person. Thus, “the statute on its face allows transferred intent for the crime of murder without limitation as to the number of people killed. The clear meaning of the statute leads to the result that, when a person engages in conduct with the intent to kill someone, there can be a separate count of murder for every person actually killed by the conduct.” (Emphasis added.) State v. Hinton, supra, 227 Conn. 309. Although § 53a-54a (a) requires that the murder victim be a “person,” there is nothing in that provision requiring a temporal nexus between the victim’s status as a person and the conduct that brings about the person’s death.
For example, in Cuellar v. State, supra, 957 S.W.2d 134, the defendant, Frank Flores Cuellar, was convicted
On appeal, Cuellar claimed, inter alia, that the trial court improperly had denied his motion to dismiss the manslaughter charge on the ground that “the victim of the offense was a fetus at the time of [Cuellar’s] conduct and, therefore, was not an ‘individual’ within the legal meaning of that term.” Cuellar v. State, supra, 957 S. W.2d 136. The court noted that the case presented “the question of whether the [Texas] Penal Code authorizes a conviction only when a victim meets the definition of an individual at the time of the alleged misconduct, or whether a conviction may also be authorized if a victim attains the status of an individual after the alleged misconduct.” Id., 137. In concluding that the law authorized Cuellar’s conviction, the court relied on the bom alive
We note, finally, that, under the doctrine of legislative acquiescence, we may infer that the failure of the legislature to take corrective action within a reasonable period of time following a definitive judicial interpretation of a statute signals legislative agreement with that interpretation. See, e.g., Mahon v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 665-66, 935 A.2d 1004 (2007). “Although we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) Id., 665. Under this court’s recent decision in State v. Fernando A., 294 Conn. 1, 20 n.15, 981 A.2d 427 (2009), we also are free to apply the doctrine to officially published decisions of the Superior Court. Fernando A. is relevant to the present case because the bom alive mle has been recognized in two published Superior Court decisions, namely, State v. Anonymous (1986-1), supra, 40 Conn. Sup. 498, which was decided more than twenty years ago, and State v. Courchesne, supra, 46 Conn. Sup. 63, which was decided more than ten years ago. Thus, under Fernando A., we would be permitted to presume that the failure of the legislature to abrogate the bom alive mle by amending our Penal Code constitutes legislative approval of the mle. We need not rely on the presumption available to us under Fernando A., however, in light of the legislative history and genealogy of P.A. 03-21 because, as we previously explained, that history and genealogy demonstrates, first, that the legislature was aware of both Anonymous and Courchesne when it enacted P.A. 03-21, and, second, that it enacted P.A. 03-21 with a full appreciation that, although that
In sum, the bom alive rule is well established in the common law of this state, and P.A. 03-21 reflects the
Ill
TRANSFERRED INTENT UNDER § 53a-54a (a)
We next address the defendant’s related contention that the trial court misapplied the doctrine of transferred intent by permitting the state to rely on that legal principle in establishing that the defendant had murdered Antonia. Specifically, the defendant asserts that his intent to kill Rodgers could not be transferred to Antonia because, at the time he assaulted and killed Rodgers, Antonia was not yet a person within the meaning of § 53a-54a (a). According to the defendant, the transferred intent principle “has never been applied to situations in which the defendant’s intent to kill a person is transferred to another entity that had not legally attained the status of a ‘person’ at the time the defendant acted.” Our recognition of the applicability of the bom alive mle to the law of homicide also is dispositive of the defendant’s transferred intent claim.
The doctrine of transferred intent operates to render a defendant culpable of the murder of a third person when the defendant causes the death of that third person with the intent to cause the death of someone else. See, e.g., State v. Higgins, 265 Conn. 35, 51-52, 826 A.2d 1126 (2003); State v. Henry, supra, 253 Conn. 359. The principle, which is reflected in the express language of § 53a-54a (a), represents a policy determination by the legislature that a defendant who engages in such conduct is no less culpable than if he had killed his intended victim.
The defendant has provided no persuasive reason why these two principles, each of which represents the public policy of this state as determined by the legislature, should not be applied in tandem for purposes of interpreting our statutory scheme. In the absence of any such reason, we reject his claim that the transferred intent provisions of § 53a-54a (a) are inapplicable to the present case.
DUE PROCESS AND EX POST FACTO CLAIMS
The defendant next claims that the application of the bom alive rule to his conduct, rather than prospective application only, violates his right to fair notice under the due process and ex post facto clauses of the United States constitution. See footnote 29 of this opinion. He further contends that the court’s “novel integration” of the bom alive rule and the doctrine of transferred intent “created an unconstitutionally vague theory of murder as applied to [his] conduct . . . .’’In other words, the defendant contends that a reasonable person in his position, at the time he assaulted Rodgers, could not be presumed to have known that his actions violated the murder and capital felony statutes with respect to Antonia. We also disagree with these claims.
“The basic principle that a criminal statute must give fair warning of the conduct that it makes a crime has often been recognized by [the United States Supreme] Court.” Bouie v. Columbia, 378 U.S. 347, 350-51, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964). “The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 98 L. Ed. 2d 989 (1954). “It is settled that the fair-warning requirement embodied in the [d]ue [p]rocess [c]lause prohibits the [s]tates from holding an individual criminally responsible for conduct which he could not reasonably understand to be proscribed.” (Internal quotation marks omitted.) Rose v. Locke, 423 U.S. 48, 49, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975).
The defendant invokes what is best described as a combination of the first and third of these manifestations of the fair warning doctrine in challenging the constitutionality of the bom alive rale as applied to the present case.
In essence, therefore, the due process clause “requires only that the law give sufficient warning that men may conduct themselves so as to avoid that which is forbidden, and thus not lull the potential defendant into a false sense of security, giving him no reason even to suspect that his conduct might be within its scope.” (Internal quotation marks omitted.) Rubin v. Garvin, 544 F.3d 461, 469 (2d Cir. 2008). “Furthermore, the unavoidable ambiguities of language do not transform every circumstance in which judicial construction is necessary into a violation of the fair notice requirement: ‘The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into
Subsequent to Rogers, this court, in State v. Miranda, supra, 260 Conn. 93, observed that the fair warning principles articulated in Rogers andBouie are “in accordance with our fair warning jurisprudence. We consistently have held that [w]hile we also recognize that criminal statutes are to be construed strictly, the language in a criminal statute need not be given its narrowest possible construction. ... A statute is not unconstitutional merely because a person must inquire further as to the precise reach of its prohibitions. ... In addition, [references to judicial opinions involving the statute, the common law, legal dictionaries, or treatises
Furthermore, because this court routinely relies on settled principles of statutory interpretation to ascertain the meaning of an ambiguous statute, our reasoned application of those ordinary tools of construction no doubt will result in an interpretation of the statute at issue that is both foreseeable and defensible for purposes of due process. See State v. Miranda, supra, 260 Conn. 109 (“To reach the conclusion that we did, we relied on ordinary tools of statutory construction. Those tools of statutory construction demonstrated that by reference to the law as it then existed, it was neither unexpected nor indefensible to [interpret the statute in the manner that we did].”). This same standard applies to the defendant’s closely related vagueness claim. In view of the fact that a statute is not unconstitutional merely because it is ambiguous or requires further investigation, the defendant can prevail on his claim under the vagueness doctrine only if he can demonstrate that the statutory meaning cannot be fairly ascertained upon application of established principles of statutory interpretation. See, e.g., State v. Ehlers, 252 Conn. 579, 591, 750 A.2d 1079 (2000) (“[i]f the meaning of a statute can fairly be ascertained through judicial construction ... it need not be stricken for vagueness” [internal quotation marks omitted]). In other words, a statute that is not clear on its face will
Our inquiry under the ex post facto clause proceeds along similar lines. “The ex post facto prohibition forbids . . . the [s]tates [from] enacting] any law [that] imposes a punishment for an act [that] was not punishable at the time it was committed ... or imposes additional punishment to that then prescribed. . . . Through this prohibition, the [fjramers sought to assure that legislative [a]cts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. . . . Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 67 L. Ed. 2d 17 (1981). [T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. Id., 29.” (Internal quotation marks omitted.) Washington v. Commissioner of Correction, 287 Conn. 792, 805, 950 A.2d 1220 (2008).
We have recognized that the judicial construction of a statute can operate like an ex post facto law and thus violate a criminal defendant’s right to fair warning as to what conduct is prohibited. See, e.g., Johnson s. Commissioner of Correction, 288 Conn. 53, 58-59 n.4, 951 A.2d 520 (2008). “The United States Supreme Court has observed, [a]s the text of the [ex post facto] [c]lause makes clear, it is a limitation [on] the powers of the [legislature, and does not of its own force apply to the [j]udicial [b]ranch of government. . . . Rogers v.
“[A] judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction. . . . Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994). [Thus], when [a] court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law. Id., 313 n.12.” Washington v. Commissioner of Correction, supra, 287 Conn. 810-11. In determining whether a judicial construction of a statute effectively operates as a prohibited ex post facto law, “[t]he question . . . is whether [the] decision was so unforeseeable that [the defendant] had no fair warning that it might come out the way it did.” (Internal quotation marks omitted.) Id., 809. Put differently, “[t]he key test in determining whether the due process clause precludes the retrospective application of a judicial decision ... is whether the decision was sufficiently foreseeable so that the defendant had fair warning that the interpreta
Applying these principles to the present case, we find no merit to the defendant’s first contention that he lacked fair notice that his actions violated the murder and capital felony statutes with respect to Antonia. Our previous analysis leading to the rejection of the defendant’s claim concerning the inapplicability of the bom alive rule and, in particular, our reasons for concluding that the term “person,” as used in this state’s murder statute, includes an infant who suffers injuries in útero, is bom alive and subsequently dies from those injuries, necessarily are fatal to the defendant’s due process and ex post facto claims. See State v. Winot, 294 Conn. 753, 759, 988 A.2d 188 (2010) (criminal statute not void for vagueness if its meaning can be discerned by resort to extratextual sources and tools of constmction); Washington v. Commissioner of Correction, supra, 287 Conn. 803-804, 810-11 (retroactive application of judicial inteipretation of statute did not operate as functional equivalent of ex post facto law and violate due process when interpretation was based on reasoned application of tools of constmction and thus could not be considered unforeseeable and indefensible); State v. Miranda, supra, 260 Conn. 109-10 (in concluding that fair notice component of due process was not violated by retroactive application of judicial constmction of criminal statute, court observed that constmction had been reached by resort to ordinary tools of statutory constmction). In light of the fact that the bom alive rule has been embodied in our Penal Code since the code’s adoption nearly four decades ago, our recognition of the rale reasonably cannot be characterized as a departure from settled law, let alone a radical and unforeseeable change in the law.
In Rogers, the petitioner, Wilbert K. Rogers, was convicted of second degree murder in Tennessee state court for the stabbing death of the victim. Rogers v. Tennessee, supra, 532 U.S. 454. The victim, who had suffered life threatening injuries to his heart, survived for approximately fifteen months, after which he died from those injuries. Id. On appeal to the Supreme Court of Tennessee, Rogers claimed that Tennessee’s common-law year and a day mle, pursuant to which a defendant cannot be convicted of murder unless the victim has died as a result of the defendant’s conduct within one year and one day of that conduct, precluded his conviction for the murder of the victim. State v. Rogers, 992 S.W.2d 393, 394 (Tenn. 1999). Although the Tennessee statutes did not expressly refer to the year and a day rale, the Supreme Court of Tennessee acknowledged that it had recognized the viability of the rule in 1907, and both parties agreed that the rule was part of the state’s common law. See id., 396, 399. After observing that the rule had been legislatively or judicially abolished in most jurisdictions and that the original justifications for the rule no longer existed, the court abolished the rule. Id., 398, 401. The court affirmed
The United States Supreme Court affirmed the judgment of the Supreme Court of Tennessee; Rogers v. Tennessee, supra, 532 U.S. 467; stating that “[t]here is . . . nothing to indicate that the Tennessee’s court abolition of the rule in [Rogers’] case represented an exercise of the sort of unfair and arbitrary judicial action against which the [d]ue [pjrocess [c]lause aims to protect. Far from a marked and unpredictable departure from prior precedent, the court’s decision was a routine exercise of common law decisionmaking in which the court brought the law into conformity with reason and common sense. It did so by laying to rest the archaic and outdated rule that had never been relied [on] as a ground of decision in any reported Tennessee case.” Id., 466-67. The court in Rogers reiterated that Bouie “restricted due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.’ ” Id., 461, quoting Bouie v. Columbia, supra, 378 U.S. 354.
In Miranda, the defendant, Santos Miranda, who was twenty-one years old, resided with his sixteen year old girlfriend and her two year old son and four month old daughter. State v. Miranda, supra, 260 Conn. 97. Although Miranda was not the biological father of either child, he took care of them and considered himself to be their stepfather. Id. Several months after Miranda had started living with his girlfriend, her four month old daughter was taken to the hospital, where it was determined that she previously had sustained a number of serious and apparently unrelated injuries, including multiple rib fractures that were approximately two to three weeks old, two skull fractures that were approxi
On appeal, the Appellate Court affirmed Miranda’s conviction for risk of injury to a child but reversed his assault convictions, concluding that he had no legal duty to act under the circumstances. State v. Miranda, 41 Conn. App. 333, 341, 675 A.2d 925 (1996). We granted the state’s petition for certification to appeal and “concluded that, [on the basis of] the trial court’s findings that [Miranda] had established a familial relationship with the [child’s] mother and [the] two children, had assumed responsibility for the welfare of the children, and had taken care of them as though he were their father, [Miranda] had assumed a legal duty to protect the [child] from abuse.” State v. Miranda, supra, 260
On remand, the Appellate Court affirmed Miranda’s conviction for risk of injury to a child. See State v. Miranda, 56 Conn. App. 298, 313, 742 A.2d 1276 (2000). With respect to Miranda’s assault convictions, however, the Appellate Court concluded that convicting him of assault in the first degree would be a violation of due process because a person of ordinary intelligence in his circumstances would not have known that he had a duty to protect the child. Id., 305-306, 308. The Appellate Court therefore reversed the judgment of conviction with respect to the assault counts and remanded the case with direction to render judgment of not guilty with respect to those counts. Id., 313-14.
Following our granting of certification, and in reliance on the then recent opinion of the United States Supreme Court in Rogers, we concluded that the Appellate Court improperly had determined that Miranda’s assault convictions deprived him of due process of law.
As we have indicated, it is readily apparent that the holdings in Rogers and Miranda represented a relatively broad and sweeping modification of then existing law, whereas our holding in the present case merely reflects our recognition and application of a well established common-law doctrine in accordance with settled principles of statutory construction. Indeed, in Rogers, the United States Supreme Court concluded that the Tennessee Supreme Court’s abolition of the common-law year and a day rule could be applied retroactively to a defendant whose conduct occurred before the court’s repudiation of that common-law rule. Under Rogers, therefore, the fair notice requirement is not necessarily violated even when a state’s highest court reverses course completely with respect to an existing rule or interpretation and applies that change in the law retroactively to conduct that occurred prior thereto. In con
Moreover, in light of the holding of the United States Supreme Corut in Rogers, even if the bom alive rule previously had not been recognized in this state, our decision to do so today would constitute nothing more than a clarification or iUumination of our murder statute as applied to the facts of this case, based on our considered view of what the legislature likely intended. In such circumstances, the conclusion of the corut in Rogers concerning the Tennessee Supreme Court’s repudiation of the year and a day rule would be equally applicable to our recognition of the bom alive rule: “Far from a marked and unpredictable departure from prior precedent, the court’s decision was a routine exercise of common law decisionmaking in which the court brought the law into conformity with reason and common sense.” Rogers v. Tennessee, supra, 532 U.S. 467. Thus, even in the absence of evidence of the bom alive rule in this state’s common-law history, our decision to adopt the rule could not possibly be characterized as “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” (Internal quotation marks omitted.) Id., 462.
Our holding in Miranda also represents a significantly less foreseeable or predictable application of the common law to a statutory provision than our application of the bom alive rule in the present case. In fact,
Simply put, it is not possible to abide by the fair notice principles articulated and applied by the United States Supreme Court in Rogers and by this court in Miranda — cases that represent binding precedent— and also to conclude that our recognition of the bom
Justice Schaller’s analysis suffers from another fatal infirmity, namely, his assertion that the trial court incorrectly concluded that State v. Anonymous (1986-1), supra, 40 Conn. Sup. 498, placed the defendant on notice of the bom alive rule because the court’s discussion of the rule in Anonymous was merely dictum.
In Anonymous, the state had sought an arrest warrant in contemplation of charging the accused with the murder of a viable fetus in útero. Id. As the court in Anonymous stated, “[t]hat application require[d] [the] court to decide whether an unborn but viable fetus is a ‘human being’ within the meaning of the Connecticut statutes defining murder.” Id. In concluding that it did not, the court observed, first, “that the codes from which our Connecticut law was drawn [namely, the New York Penal Law and the Model Penal Code] limit the words ‘human being’ to those who have been bom alive . . . .” Id., 501. The court further observed that the fact that these two bodies of law have adopted the bom alive standard “supports the position that Connecticut’s legislature did not intend to define a ‘human being’ as an unborn but viable fetus.” Id.
The court thereafter turned to the common law and, after noting that “[our] legislature, in enacting the murder statute, [presumably] was familiar with the general mies of common law on [the] subject when it enacted . . . [our] [PJenal [C]ode”; id., 502; explained that, as a principle of statutory construction, “[a] statute should not be construed as altering the common law mle, farther than the words of the statute import, and should not be construed as making any innovation [on] the common law which the statute does not fairly express.” (Internal quotation marks omitted.) Id., quoting State v. Kish, 186 Conn. 757, 764, 443 A.2d 1274 (1982). The court, citing to Sir Edward Coke, explained that “it is
The court in Anonymous then considered the possible due process consequences of applying retroactively “a new interpretation” of our murder statute that would include within its purview a viable fetus. State v. Anonymous (1986-1), supra, 40 Conn. Sup. 503-504. Turning to Cass and Home, the court explained that even those courts “have agreed with majority jurisdictions that to apply a new interpretation of the words ‘human being’ retroactively to include a viable but unborn fetus would violate constitutional principles that prohibit retroactive criminal laws.” Id.; see Commonwealth v. Cass, supra, 392 Mass. 807-808; State v. Horne, supra, 282 S.C. 447. After quoting with approval from a third case, namely, Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617, 87 Cal. Rptr. 481 (1970), in which the Supreme Court of California had rejected the state’s request to abolish the bom alive mle and to expand the definition of “person” in the California homicide statutes to include a viable fetus; id., 631; the court in Anonymous stated that, “to charge the accused with the murder of the unborn but viable fetus would violate the accused’s due process rights.” State v. Anonymous (1986-1), supra, 504.
Finally, the court in Anonymous observed that its decision to invoke the bom alive mle applied “only to the crime of murder and not to tort law.” Id., 505. The court explained: “American courts [that] have extended the benefits of tort law to fetuses have also, in the absence of specifically inclusive language, uniformly refused to change the bom-alive rule in criminal cases .... The rationale is that [differing objectives and considerations in tort and criminal law foster the development of different principles governing the same factual situation.” (Citation omitted; emphasis added;
As the foregoing discussion clearly demonstrates, the court in Anonymous declined to expand the definition of the term “person” under our murder statute to include an unborn but viable fetus because of its predicate determination that the bom alive rule had been incorporated into the statute, and that to abolish the rule in favor of a broader definition of “person” would be incompatible with an accused’s due process right to fair notice. See id., 503-504. Consequently, the court’s recognition of the bom alive rule in Anonymous was necessary to its conclusion and, therefore, part of its holding rather than dictum. See footnote 79 of this opinion. That the court’s recognition of the bom alive rule in Anonymous was a critical aspect of its holding is reflected by the fact that a multitude of courts and commentators have identified Anonymous as a case in which the court recognized and applied the bom alive rule. See, e.g., Vo v. Superior Court, 172 Ariz. 195, 203, 836 P.2d 408 (App. 1992); State v. Courchesne, supra, 46 Conn. Sup. 72; State v. Lamy, supra, 158 N.H. 517 and n.3; State v. Beale, 324 N.C. 87, 92, 376 S.E.2d 1 (1989); Commonwealth v. Booth, supra, 564 Pa. 238 n.7; J. Brobst, “The Prospect of Enacting an Unborn Victims of Violence Act in North Carolina,” 28 N.C. Cent. L.J. 127, 135 (2006); M. Fleming, “Feticide Laws: Contemporary Legal Applications and Constitutional Inquiries,” 29 Pace L. Rev. 43, 48 n.27 (2008); T. Hartsoe, “Person or Thing — In Search of the Legal Status of a Fetus: A Survey of North Carolina Law,” 17 Campbell L. Rev. 169, 212 and n.233 (1995); C. Ramsey, “Restructuring the Debate over Fetal Homicide Laws,” 67 Ohio St. L.J. 721, 739 n.84 (2006); M. Kime, note, “Hughes v. State;
Thus, as the court stated in State v. Courchesne, supra, 46 Conn. Sup. 63, because Anonymous “expressly followfed] the common-law [bom alive] rule”; id., 71; the published decision in that case “can be considered to have actually given notice that the defendant’s actions concerning Antonia constituted murder separate from that of her mother [Rodgers].”
We also reject the defendant’s claim that applying the bom alive rule in combination with the doctrine of transferred intent violated his rights under the due process and ex post facto clauses. The bom alive rule and the doctrine of transferred intent are well established. The bom alive rule has deep roots in our common law, as we have explained, and our murder statute, namely, § 53a-54a (a), expressly incorporates the transferred intent principle. We can think of no reason why the application of these two doctrines renders the defendant’s conviction constitutionally infirm merely because the defendant’s conduct implicated both doctrines and, consequently, together formed the basis of the defendant’s culpability for the murder of Antonia. The application of these doctrines to the defendant was not unforeseeable, novel or otherwise unfair.
“[I]t is simply ludicrous to suppose that a particular statute fails to provide fair notice of forbidden conduct if it does not expressly anticipate every possible criminal contingency. . . . [I]t is fatuous for [the perpetrator] to complain that he did not receive fair notice that he was acting in a criminal manner [and could be held criminally liable if the pregnant woman’s baby was bom alive but subsequently died].” (Citation omitted.) People v. Hall, supra, 158 App. Div. 2d 79-80; see also United States v. Spencer, supra, 839 F.2d 1342-44 (rejecting claim that defendant could not have foreseen that kicking and stabbing pregnant woman in stomach could result in murder conviction for death of baby ten minutes after birth); State v. Cotton, supra, 197 Ariz. 589-90 (application of homicide statutes to conduct that resulted in postpartum death of baby did not violate defendant’s due process rights).
We acknowledge that, under our interpretation of the relevant statutory scheme, a person who assaults a pregnant woman and causes the death of the fetus in útero will be subject to a lesser sanction than a person who commits the same assault when the fetus is bom alive and subsequently dies of injuries resulting from that assault.
In Cotton, the defendant, Lawrence Cotton, was charged with two counts of second degree reckless murder after he accidentally shot and killed his girlfriend, who was eight and one-half months pregnant. Id., 586. The baby was bom alive but died one day after being bom. Id. Cotton urged the Arizona Court of Appeals to extend its reasoning in Vo v. Superior Court, supra, 172 Ariz. 195, in which the court had concluded that the definition of “person” under the Arizona first degree murder statute did not include a fetus. Id.; see State v. Cotton, supra, 197 Ariz. 587. In Vo, the court “held that the trial court should have dismissed minder charges against the defendants for the death of a fetus that occurred after one of the defendants shot the pregnant mother”; State v. Cotton, supra, 587; reasoning that, “in enacting the statute, the legislature had not expressed an intent to deviate from the common law principle that only persons ‘bom alive’ could be the victims of homicide.” Id., citing Vo v. Superior Court, supra, 200, 206. The court in Vo had “found support for [its] conclusion ... in the fetal manslaughter statute . . . which, by defining the killing of an unborn child as a separate offense from the killing of a ‘person,’
Cotton nevertheless maintained that his case presented a scenario that was legally indistinguishable from Vo, and “that, if it was not murder for the . . . defendants [in Vo] to cause the death of an unborn child, it similarly should not be murder or manslaughter for [Cotton] to have harmed a fetus who later died of her injuries after birth.” State v. Cotton, supra, 197 Ariz. 587. The court disagreed, noting that Cotton had “caused the death not of a fetus, but of a child who had been bom.” Id. The court also rejected Cotton’s contention that Arizona’s fetal manslaughter statute “reflectfed] a legislative determination that the [s]tate’s other homicide statutes should not apply to situations in which fatal injuries are inflicted on a fetus, even if death does not result until after the child is bom.” Id., 588. The court explained: “By its terms, the fetal manslaughter statute applies only to the killing of an unborn child. It reflects a legislative decision to afford protection to unborn children that was not available under traditional homicide statutes because of the common law bom alive rule. . . . Absent any legislative history to the contrary, we presume that the legislature’s adoption of [the fetal manslaughter statute] merely reflects a desire to afford greater protection to the unborn fetus than was available under common law, not less protection to a child who, despite the homicidal conduct of another, happens to survive past birth.” Id.
Finally, Cotton asserted that it was fundamentally unfair and against public policy “to permit a [murder] conviction ... for inflicting prenatal injuries if the child survives, but to allow a conviction only for fetal manslaughter if the child dies before birth.” Id., 590. Cotton maintained “that such an interpretation would
“It is inconceivable that [the Arizona] legislature would have intended that the perpetrator escape responsibility for the child’s death in the former scenario, but not the latter. To the extent that Cotton is correct in arguing that the interplay between the fetal manslaughter statute and the murder statutes has created a perverse incentive not to render aid to a dying
We agree with the reasoning of the court in Cotton. If we were to determine, consistent with the defendant’s contention in the present case, that the definition of “person” under our murder and capital felony statutes does not include an infant who is bom alive and later dies from injuries inflicted in útero, we also would be required to conclude that the legislature, through its enactment of P.A. 03-21, intended to punish an assault on a pregnant woman that causes the termination of her pregnancy that does not result in a live birth, on the one hand, but intended no punishment for the same conduct if the fetus happens to be bom alive but dies shortly thereafter from its injuries, on the other hand. We will not assume that the legislature intended such an irrational and bizarre result, especially because the legislative history surrounding P.A. 03-21 definitively establishes a contrary legislative intent.
EVIDENTIARY SUFFICIENCY AND THE CORRECT LEGAL STANDARD FOR DETERMINING WHETHER ANTONIA WAS BORN ALIVE
The defendant next claims that, even if the panel properly concluded that the bom alive rule is applicable to the present case, he nevertheless is entitled to a judgment of acquittal with respect to the murder and capital felony charges pertaining to the death of Antonia because the evidence was insufficient to establish beyond a reasonable doubt that Antonia was bom alive under “prevailing Connecticut law defining what it means to be alive.”
We commence our review of the defendant’s claim with a summary of our analysis and holding in Guess. In Guess, the defendant, Barry Guess, repeatedly shot the victim, Melvin McCoy, who, after being transported to the hospital, was placed on life-support systems. See State v. Guess, supra, 244 Conn. 764-66. A short time later, it was determined that McCoy could not sustain either circulatory or respiratory function on his own. Id., 766. It also was determined that McCoy was “brain dead” because he exhibited no sign of any brain activity. Id. After McCoy’s parents authorized the hospital to remove him from life support, he was pronounced dead. Id.
A jury found Guess guilty of McCoy’s murder. Id., 763. Following his conviction, Guess appealed to the Appellate Court, claiming that the evidence was insufficient to support a finding of probable cause that he had killed McCoy because, Guess maintained, the legal cause of McCoy’s death was his removal from life-support systems rather than Guess’ shooting of McCoy. See id. In particular, Guess contended that, “because the legislature had not adopted the Uniform Determination of Death Act,
Upon our granting of Guess’ petition for certification to appeal, we concluded that, even if the legislature had not adopted the Uniform Determination of Death Act as the operative definition of death under the Penal Code, we could, “as a matter of common-law adjudication, define [the] term [death] in tandem with medical science and technology as they [had] evolved in recent years.” State v. Guess, supra, 244 Conn. 771. After noting the developments that had led to an expanded definition of death in the medical and legal fields; see id., 772-78; we “construe[d] the meaning of ‘death’ as that term is used in the Penal Code to include a brain-based definition of death”; id., 780; thus placing the common-law definition of death in conformance with the definition of that term under the Uniform Determination of Death Act. See footnote 88 of this opinion. We therefore determined, for purposes of our common law, that an individual is deemed to be dead if that person has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem. See State v. Guess, supra, 780.
In light of our determination in Guess concerning the applicability of the brain death standard, we concluded that the trial court in that case properly had found probable cause to charge Guess with the crime of murder. Id., 781. Specifically, we stated: “Because the trial court at the hearing in probable cause reasonably found that [Guess’] act of shooting [McCoy] caused extensive brain damage, leaving [McCoy] with no evidence of brain function, the court properly found that the state had established probable cause to charge [Guess] with the crime of murder.” Id.
On appeal to this court, the defendant in the present case concedes that the brain death standard that we adopted in Guess was not intended to supplant the traditional common-law definition but, rather, merely to supplement it as an alternative basis for establishing when death has occurred. He contends, nevertheless, that, because the court in Guess recognized that a person who is being sustained on life support may have died, that is, the person may be brain dead, even though that person continues to exhibit traditional signs of life, namely, circulatory and respiratory functions, the
In response, the state contends that evidence of brain function never has been required to prove a live birth. The state therefore asserts that the defendant’s reliance on Guess is misplaced and that Guess merely stands for the proposition that removing a person from life support does not bar a defendant’s conviction for murder when the evidence establishes that the defendant’s actions caused an irreversible cessation of that person’s brain function before the removal of life support. In the state’s view, Guess neither directly addressed nor implicitly resolved the issue raised by the present case, that is, whether an infant who, following her delivery, is placed on life support and sustained for forty-two days before being removed from life support, qualifies as a “person” within the meaning of our murder statute.
We agree with the state that Guess does not directly address the issue of what type of proof or evidence is required to establish that an infant who is delivered by cesarean section after suffering prolonged oxygen deprivation in útero and is immediately placed on life support is a “person” within the meaning of our murder statute. Indeed, Guess did not present a factual scenario that required us to consider that question. More importantly, it is clear that the panel in the present case did not apply Guess or otherwise consider what relevance,
Thus, although the claim of evidentiary insufficiency that the defendant raises in this court is predicated on the application of a test for determining whether a person is alive that requires due consideration of the principles articulated in Guess, it is apparent that, in the trial court, neither the parties nor the court had any such test in mind. For the reasons set forth in part V
A
Standard Utilized by the Trial Court and the Sufficiency of the Evidence Under That Standard
Before addressing the defendant’s claim under Guess, we first address his claim that the evidence was insuffi
The following additional facts and procedural history are relevant to our analysis of this issue. In finding that Antonia was bom alive, the panel made no specific factual findings of its own. Rather, the panel relied on the law of the case and, in particular, on the pretrial ruling of the court, Damiani, J., on the motion to dismiss that the defendant filed immediately prior to the probable cause hearing. The only witness to testify at the probable cause hearing regarding Antonia’s condition at birth was Palmer, the emergency department physician who delivered her. According to Palmer, after it was determined that Rodgers could not be resuscitated, he delivered Antonia by emergency cesarean section. After cutting and clamping the umbilical cord, he immediately handed Antonia to a physician’s assistant, who was a member of the pediatric staff standing by to take Antonia to the pediatric intensive care unit for resuscitation. Because Palmer transferred Antonia to the physician’s assistant so quickly, his observations of her were extremely limited. He did observe, however, that she was not breathing or making sounds. Approximately thirty minutes after the delivery, Palmer went to the pediatric intensive care unit to treat a laceration that Antonia had suffered during the cesarean section. At that time, her vital signs were stable and she was breathing with the assistance of a ventilator. Palmer thereafter completed the appropriate paperwork for the issuance of Antonia’s birth certificate, signifying that she had been bom alive. Over the next several weeks, Palmer often checked on Antonia, who continued to exhibit stable vital signs with the assistance of the venti
On cross-examination, defense counsel asked Palmer how much time had elapsed between Rodgers’ arrival at the hospital and Antonia’s birth. When the state’s attorney objected to the question on relevancy grounds, defense counsel explained that he was “trying to determine whether the child was bom alive or dead. And the time between when the mother came into the hospital and when the baby was delivered is very significant. The time clearly was of the essence because [Palmer] has already testified to the fact that [medical personnel] didn’t do any monitoring of the fetus in útero because of the situation.” The court then asked defense counsel why the question was relevant in view of the fact that Palmer already had testified “that the baby was bom alive.” Defense counsel responded: “He testified to that, but whether he had the basic facts to give that opinion, we don’t know. I’m just testing whether he has the evidence to support [it].” The state’s attorney interjected that “you don’t . . . have to be a doctor to know whether a baby is bom alive or dead .... The baby lived for [six] weeks.” The court overruled the state’s attorney’s objection but observed that Palmer had delivered Antonia and testified that she “was bom alive. [Palmer is] a human being. He has an infant or a baby in his hands or arms that he passes off, and he can tell if the baby is bom alive or not.” The court further observed that, in light of Palmer’s testimony, it did not view the amount of time that had elapsed between Rodgers’ arrival at the hospital and Antonia’s birth as “relevant, but . . . we’ll see where you are going.”
Thereafter, defense counsel showed Palmer a copy of Antonia’s birth certificate, which indicated that she
After defense counsel had finished questioning Palmer, the court indicated that it had a few questions. The court then asked Palmer what, in his medical opinion, constitutes a “fetal death . . . .” Palmer responded, “ [t]hat’s when the heart stops and the baby’s no longer viable.” The trial court also asked Palmer whether Antonia was breathing and had a heartbeat when he visited her thirty minutes after her birth. Palmer responded that, at that time, Antonia’s heart was beating and she “was breathing on a ventilator.”
“This interpretation of the statute’s applicability to the facts of the present case finds support in the [common-law] ‘bom alive’ rule.” State v. Courchesne, supra, 46 Conn. Sup. 67-68. The only other portion of the decision that is relevant to the court’s finding that Antonia was bom alive is the following explanation by the court as to why the doctrine of transferred intent applied in the bom alive context: “Obviously, there are many instances [in which] an adult victim has died some considerable time after the infliction of the fatal blow or wound. If the victim recovers and survives, whether by reason of medical or surgical treatment, or otherwise, there is no homicide; yet, if the victim dies from such wounds, it is murder. While such medical or surgical treatment may be a so-called intervening factor between the point of infliction of injury and [the] resultant survival or death, nevertheless, the issue of homicide is resolved by the initial circumstances that caused the death.
“There is no logical reason why any different mle should apply to an unborn fetus who is successfully delivered alive and lives independently] of his mother for a reasonable time; at least for [a] sufficient time so as not to be ‘stillborn,’ as that term is accepted by the medical profession and our society.”
On the basis of the foregoing, it is evident that the court determined that Antonia had been “bom and remained alive for forty-two days”; State v. Courchesne, supra, 46 Conn. Sup. 67; merely because she had demonstrated vital signs while being sustained on life support for that extended period of time. This is so because the state presented no other evidence at the probable cause hearing with respect to the bom alive issue. That the court relied solely on the fact that Antonia had been sustained on a ventilator for forty-two days in concluding that she had been bom alive also is evidenced by virtue of its questioning of Palmer regarding the meaning of “fetal death . . . .” Palmer responded that fetal death occurs “when the heart stops and the baby’s no longer viable.” The court then asked Palmer whether Antonia’s heart was beating and whether she was breathing when he examined her approximately thirty minutes after birth. Palmer responded in the affirmative but noted that she was breathing with the assistance of a ventilator. Thus, under the test that the court applied, an infant is bom alive, even if she is not breathing at birth, as long as her circulatory and respiratory functions are maintained by life-support systems for a period of time.
Following the trial court’s finding of probable cause, the guilt phase of the trial ensued before the panel. During the guilt phase, the state’s attorney presented essentially the same evidence that he had adduced at the probable cause hearing. In addition, the state adduced testimony from Carver, the state’s chief medical examiner, who had performed an autopsy on Antonia. Carver
The panel thereafter found the defendant guilty as charged. In doing so, the panel adopted the bom alive test that the court, Damiani, J., had applied. Specifically, in its memorandum of decision on the defendant’s motion for articulation, the panel stated in relevant part: “Judge Damiani issued a . . . comprehensive opinion resolving the issue of the ‘bom alive’ rule as it applies to murder and capital felony in the state of Connecticut. . . . [The panel] has adopted that mling and utilized Judge Damiani’s analysis in concluding as it did that the defendant is guilty of murder and capital felony as charged . . . .”
In light of the nature of the test that the panel applied, it is apparent that the evidence adduced by the state at trial was sufficient to meet that test. As we previously explained, the traditional common-law definition of death was satisfied by evidence establishing the irreversible cessation of circulatory and respiratory functions. Conversely, proof of “life” merely required evidence of circulatory and respiratory functions. See, e.g., People v. Selwa, 214 Mich. App. 451, 463-64, 543 N.W.2d 321 (1995) (“the definition of ‘fife’ logically
In the present case, the uncontroverted evidence established that Antonia was delivered in the emergency department at the hospital and subsequently placed on a ventilator that maintained her lung function, which, in turn, assisted her heart function. While on life support, Antonia grew at about the same rate as any other infant would have in the course of six weeks. Antonia remained on life support for forty-two days until it was withdrawn, after which she died. Because Antonia’s bodily functions, including her circulatory and respiratory functions, continued, independently of her mother, for six weeks following her delivery, the state’s evidence was sufficient to satisfy the standard that the panel applied during the guilt phase of the defendant’s trial.
In connection with his claim that he is entitled to a judgment of acquittal on the ground of evidentiary insufficiency, the defendant appears to presume that the panel applied a test pursuant to which the state was required to prove that Antonia lived or was able to live independently of her mother and independently of life support. This presumption is manifested by the defendant’s reliance on several cases that, he asserts, stand for that general proposition.
For purposes of our analysis, however, the decisive consideration is the fact that the defendant never claimed that such a test applied, that neither the court,
B
The Applicable Standard Under Guess
We turn, therefore, to the defendant’s claim that the state was required but failed to prove that Antonia was not brain dead for purposes of establishing that she was bom alive. We begin our analysis by noting our disagreement with the state’s contention that the issue that we decided in Guess, namely, when life ends for purposes of proving causation in a homicide case, has no bearing on the question of when life begins for purposes of determining whether an infant has been bom alive under the bom alive rule. Although its relevance may not be readily apparent, our determination in Guess that a person may be dead even though he or she exhib
It is apparent, however, that application of the traditional common-law test to determine whether Antonia was bom alive, as the court, Damiani, J., and the panel did in this case, does not account for the possibility that Antonia could have been brain dead at birth even though her respiratory and circulatory functions were sustained for forty-two days with the assistance of life support.
In Guess, this court expanded the definition of death for purposes of the Penal Code to include brain death as well as the traditional test that requires proof of the irreversible cessation of circulatory and respiratory functions. See id., 780. We did so both because the medical and scientific communities have long accepted the brain based standard for defining death; id., 777; and in recognition of the fact that “medical science and technology [have] evolved to the point where a person’s heartbeat and respiration may be sustained mechanically even in the face of an irreversible loss of all brain functions, and where machines that artificially maintain cardio [pulmonary] [function] have come into widespread use.” Id., 772; see also State v. Lamy, supra, 158 N.H. 518 (“As medical technology has advanced . . . so too has the bom alive mle. Through the efforts of doctors and technology, a fetus can now be delivered with no heartbeat, no breathing, and no brain function, yet have [certain of] those functions artificially resuscitated and maintained some time later. Because of these advances, states employing the bom alive doctrine have required that the child show some spontaneous sign of life, as well as the ability to exist independently] of artificial support at some point in the future.”), citing Alaska Stat. § 11.41.140 (2008) (providing that “[a] person is ‘alive’ if there is spontaneous respiratory or cardiac function or, when respiratory and cardiac functions are maintained by artificial means, there is spontaneous brain function”). In such circumstances, when an individual is maintained on life support despite the complete absence of brain function, death has occurred under the brain death standard that we adopted in Guess even though, due to mechanical inter
The state contends that this evidentiary standard is unworkable in light of the medical exigencies that frequently exist at the time of birth. According to the state, requiring proof of brain function to establish that a baby had been bom alive “would make it far more difficult to establish homicide and, consequently, far more likely that the person who injured the baby could not be held accountable for causing her death.” Although we acknowledge that, depending on the circumstances, satisfying a brain death standard may require greater proof than would be necessary under the traditional bom alive rule, that fact alone does not dictate the test to be adopted because “brain death became the medically accepted standard for determining death some time ago.” State v. Guess, supra, 244 Conn. 777. Moreover, in the present case, if Antonia was, in fact, bom alive, there is every likelihood that the state will be able to prove it. Indeed, the hospital may have performed one or more tests over the forty-two days when Antonia was on life support that would establish the existence of brain function. Alternatively,, there may be evidence indicating that, at some point prior to the time that
We recognize that other courts have declined to adopt a brain death standard for purposes of the bom alive rule. See People v. Bolar, supra, 109 Ill. App. 3d 391 (“[The] contention that brain activity [is] required for a finding of live birth is a luxury that is impossible to afford. Testimony at trial indicated that this could only be conclusively established through use of an electroencephalogram. [Although] no testimony was adduced we believe that constraints of time, availability of equipment, and incompatibility with life-saving measures [render] this requirement totally impractical.”); see also Regina v. Iby, supra, 63 N.S.W.L.R. 289-90 (rejecting claim that common law should be adapted so that definition of life coincides with statutory definition of death, which includes brain death); cf. People v. Hall, supra, 158 App. Div. 2d 74 (looking at respiratory and circulatory functions, as well as voluntary movement of muscles, as signs that infant has been bom alive). We are not persuaded, however, by the analysis and conclusion
VI
PENALTY PHASE CLAIMS
The defendant also challenges the sufficiency of the evidence presented by the state at the penalty phase hearing. Specifically, the defendant first contends that
“[W]e have interpreted the aggravating factor set forth in § 53a-46a (i) (4) to require proof that the defendant engaged in intentional conduct that inflicted extreme physical or psychological pain [suffering] or torture on the victim above and beyond that necessarily accompanying the underlying killing, and that the defendant specifically intended to inflict such extreme pain [suffering or] torture . . . or . . . the defendant was callous or indifferent to the extreme physical or psychological pain, suffering or torture that his intentional conduct in fact inflicted on the victim. . . .
“In reviewing a claim that the evidence fail[ed] to support the finding of an aggravating factor specified in [§ 53a-46a (i)] ... we subject that finding to the same independent and scrupulous examination of the entire record that we employ in our review of constitutional fact-finding, such as the voluntariness of a confession ... or the seizure of a defendant. ... In such circumstances, we are required to determine whether the factual findings are supported by substantial evidence. . . .
“Furthermore, [i]n viewing evidence [that] could yield contrary inferences, the jury is not barred from drawing those inferences consistent with [the existence of the aggravating factor] and is not required to draw only those inferences consistent with [its nonexistence]. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . .
“[Finally], [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts [that] establishes [the existence of an aggravating factor] in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the defendant’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom.” (Citations omitted; inter
The evidence that the state presented at the penalty phase hearing established that the defendant had caused the death of Rodgers, who was eight and one-half months pregnant, by stabbing her multiple times with a kitchen knife while the two were seated in the defendant’s car. The defendant’s statement to the police indicates that, on the night of the murder, he spoke with Rodgers on the telephone and told her that he had the $365 that he owed her boyfriend for drugs. The defendant told Rodgers that he would pick her up and take her to an automated bank teller machine at his bank, where he would withdraw the money. In his statement, the defendant explained that he “really had no intention of paying [Rodgers] because [he] did not have any money, [and he] was trying to fool her.”
When they arrived at the bank, the defendant told Rodgers that he had forgotten his bank card. Rodgers became upset with the defendant, and, at that point, the defendant “just lost it . . . grabbed a kitchen knife [that he kept] in the driver’s door compartment and . . . started to stab [Rodgers] with [it].” Although she tried to get away, he “just kept stabbing her.” At some point, Rodgers escaped from the car and ran a short distance before she collapsed. The defendant then exited the car, intending “to chase her down.” When he saw that there were several other cars in the vicinity, however, he became scared, got back into his car and drove away. As he was fleeing, he thought it was possible that he had run Rodgers over with his car. All he could think about at the time, however, was not getting caught.
The state also presented expert testimony regarding the nature of the wounds that the defendant inflicted on Rodgers. One of the state’s associate medical exam
Having carefully considered the evidence adduced by the state, we conclude that it supported the jury’s finding that the defendant killed Rodgers in an especially heinous, cruel or depraved maimer. The jury reasonably could have found that the eight stab wounds, as well as the multiple wounds and blunt force trauma to Rodgers’ face, caused her to experience extreme physical and psychological pain and suffering above and beyond that which was necessary to accomplish the killing, and that she experienced such suffering for up to seven minutes. The jury also reasonably could have found that Rodgers’ psychological pain and suffering were compounded by the terror of being subjected to such a vicious, spontaneous attack while pregnant, and that her pregnancy caused her to suffer additional psychological pain out of extreme concern for her nearly full-term child. See State v. Medrano, 173 Ariz.
We also conclude that the evidence supports the jury’s finding that the defendant possessed the requisite intent to satisfy the aggravating factor. “It is axiomatic that the fact finder may infer intent from the natural consequences of one’s voluntary conduct.” (Internal quotation marks omitted.) State v. Colon, supra, 272 Conn. 338. In light of the nature and number of wounds that the defendant inflicted on Rodgers with the knowledge that she was pregnant, the jury reasonably could have found that the defendant intended to inflict extreme physical and psychological pain and suffering on her. The jury also could have found that the defendant exhibited extreme indifference to the mental suffering that Rodgers no doubt experienced from being repeatedly stabbed in the abdomen while eight and one-half months pregnant. The jury also could have inferred extreme indifference toward Rodgers’ suffering predicated on the defendant’s statement to police that, when fleeing the scene, he did not “even know if [he] ran her over. [He] just didn’t want to get caught.” Accordingly, we conclude that there was sufficient evidence to support the jury’s finding that the defendant murdered Rodgers with the intent to inflict extreme physical or psychological pain, suffering or torture on her above and beyond that necessary to accomplish the killing or that he was indifferent to the extreme pain, suffering or torture that he intentionally inflicted on her.
The defendant finally claims that, even if the evidence supports the finding of the jury that he murdered Rodgers in an especially heinous, cruel or depraved manner, the jury reasonably could not have found that that aggravating factor outweighed one or more mitigating factors. The state contends that, under our case law, the jury’s determination as to the weight to be accorded
The following additional facts and procedural history are relevant to our resolution of this claim. The defendant raised eighteen claims of mitigation, including two statutory mitigating factors under § 53a-46a (h).
We begin our analysis with the standard of review. This court previously has indicated that appellate
The state contends that, under Rizzo, the weighing process in which the jury engages is effectively unreviewable and that, consequently, we should decline to consider the defendant’s challenge to that process in the present case. We need not address the state’s threshold reviewability claim because we conclude that, in the present case, the jury reasonably could have found beyond a reasonable doubt that the aggravating factor that the state had proven outweighed the mitigating factors alleged by the defendant.
The evidence presented at the penalty phase hearing established that the defendant had induced Rodgers to get into his car under false pretenses and, thereafter, repeatedly had stabbed her in the chest and back as she fought for her life and the life of her unborn child. When Rodgers finally escaped from the car, the defendant got out of the car, knife in hand, intending to chase her down to make sure that she was dead. Only when he saw other cars in the vicinity and feared that he might be seen did he stop his vicious assault of Rodgers. In light of this undisputed evidence, in particular, the extensive nature of Rodgers’ injuries, which, in addition to the numerous stab wounds, included blunt force trauma wounds to the face, we cannot say that the jury reasonably could not have found beyond a reasonable
The judgment is reversed with respect to the defendant’s conviction of both counts of capital felony and the count with respect to the murder of Antonia Rodgers and the case is remanded for a new trial on those counts; the judgment is affirmed with respect to the defendant’s conviction of the murder of Demetris Rodgers.
In this opinion ROGERS, C. J., and KATZ and VERTE-FEUILLE, Js., concurred.
We hereinafter refer to Antonia Rodgers as Antonia and Demetris Rodgers as Rodgers throughout this opinion.
General Statutes § 53a-54a provides in relevant part: “(a) A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”
The charge with respect to the alleged murder of Antonia was predicated on a theory of transferred intent, that is, that the defendant, with the intent to kill Rodgers, also killed Antonia. See footnote 2 of this opinion.
General Statutes (Rev. to 1997) § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction . . . .”
In State v. Courchesne, 262 Conn. 537, 539, 816 A.2d 562 (2003), we incorrectly stated that the 1997 revision of § 53a-54b, as amended by Public Acts 1998, No. 98-126, § 1, was the applicable statute for purposes of the defendant’s case. Public Act 98-126 did not become effective until October 1, 1998, approximately two weeks after the defendant’s commission of the crimes charged in the present case. All references to § 53a-54b in this opinion are to the 1997 revision — the statute in effect on September 15, 1998— unless otherwise indicated.
General Statutes (Rev. to 1997) § 53a-54b provides in relevant part: “A person is guilty of a capital felony who is convicted of any of the following ... (9) murder of a person under sixteen years of age.”
Article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, provides in relevant part: “No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law . . . .”
Although article first, § 8, of the constitution of Connecticut, as amended by article seventeen of the amendments, was amended further by article twenty-nine of the amendments, article twenty-nine of the amendments did not amend the provision in article seventeen of the amendments securing the right to a probable cause hearing in cases involving crimes punishable by life imprisonment or death.
General Statutes § 54-46a (a) provides: “No person charged by the state, who has not been indicted by a grand jury prior to May 26,1983, shall be put to plea or held to trial for any crime punishable by death or life imprisonment unless the court at a preliminary hearing determines there is probable cause
The trial court specifically found probable cause to believe that the defendant had committed three of the four crimes with which he had been charged, namely, the murder of Antonia and capital felony under both subdivisions (8) and (9) of § 53a-54b; the court made no finding with respect to the charge concerning the murder of Rodgers; see State v. Courchesne, 46 Conn. Sup. 63, 77, 767 A.2d 699 (1999) (“probable cause is found as to counts two, three and four of the information”); presumably because any conviction on that charge alone could not lead to a sentence of life imprisonment or the death penalty. See Conn. Const,., amend. XVII (securing right to probable cause hearing for any crimes punishable by death or life imprisonment). Nevertheless, in determining that there was probable cause to believe that the defendant had committed the crime of capital felony by “murderpngj . . . two or more persons at the same time or in the course of a single transaction”; General Statutes (Rev. to 1997) § 53a-54b (8); it necessarily determined that there was probable cause to believe that the defendant had murdered Rodgers. See State v. Courchesne, supra, 76.
Judge D’Addabbo also served as the presiding judge of the three judge panel during the guilt phase of the proceedings.
General Statutes (Rev. to 1997) § 53a-46a provides: “(a) A person shall be subjected to the penalty of death for a capital felony only if a hearing is held in accordance with the provisions of this section.
“(b) For the purpose of determining the sentence to be imposed when a defendant is convicted of or pleads guilty to a capital felony, the judge or judges who presided at the trial or before whom the guilty plea was entered shall conduct a separate hearing to determine the existence of any mitigating factor concerning the defendant’s character, background and history, or the nature and circumstances of the crime, and any aggravating factor set forth in subsection (i). Such hearing shall not be held if the state stipulates that none of the aggravating factors set forth in subsection (i) of this section exists or that any factor set forth in subsection (h) exists. Such hearing shall be conducted (1) before the jury which determined the defendant’s
“(c) In such hearing the court shall disclose to the defendant or his counsel all material contained in any presentence report which may have been prepared. No presentence information withheld from the defendant shall be considered in determining the existence of any mitigating or aggravating factor. Any information relevant to any mitigating factor may be presented by either the state or the defendant, regardless of its admissibility under the rules governing admission of evidence in trials of criminal matters, but the admissibility of information relevant to any of the aggravating factors set forth in subsection (i) shall be governed by the rules governing the admission of evidence in such trials. The state and the defendant shall be permitted to rebut any information received at the hearing and shall be given fair opportunity to present argument as to the adequacy of the information to establish the existence of any mitigating or aggravating factor. The burden of establishing any of the aggravating factors set forth in subsection (i) shall be on the state. The burden of establishing any mitigating factor shall be on the defendant.
“(d) In determining whether a mitigating factor exists concerning the defendant’s character, background or history, or the nature and circumstances of the crime, pursuant to subsection (b) of this section, the jury or, if there is no jury, the court shall first determine whether a particular factor concerning the defendant’s character, background or history, or the nature and circumstances of the crime, has been established by the evidence, and shall determine further whether that factor is mitigating in nature, considering all the facts and circumstances of the case. Mitigating factors are such as do not constitute a defense or excuse for the capital felony of which the defendant has been convicted, but which, in fairness and mercy, may be considered as tending either to extenuate or reduce the degree of his culpability or blame for the offense or to otherwise constitute a basis for a sentence less than death.
“(e) The jury or, if there is no jury, the court shall return a special verdict setting forth its findings as to the existence of any factor set forth in subsection (h), the existence of any aggravating factor or factors set forth in subsection (i) and whether any aggravating factor or factors outweigh any mitigating factor or factors found to exist pursuant to subsection (d).
“(f) If the jury or, if there is no jury, the court finds that (1) none of the factors set forth in subsection (h) exist, (2) one or more of the aggravating factors set forth in subsection (i) exist and (3) (A) no mitigating factor exists or (B) one or more mitigating factors exist but are outweighed by
“(g) If the jury or, if there is no jury, the court finds that (1) any of the factors set forth in subsection (h) exist, or (2) none of the aggravating factors set forth in subsection (i) exists or (3) one or more of the aggravating factors set forth in subsection (i) exist and one or more mitigating factors exist, but the one or more aggravating factors set forth in subsection (i) do not outweigh the one or more mitigating factors, the court shall impose a sentence of life imprisonment without the possibility of release.
“(h) The court shall not impose the sentence of death on the defendant if the jury or, if there is no jury, the court finds by a special verdict, as provided in subsection (e), that at the time of the offense (1) he was under the age of eighteen years or (2) his mental capacity was significantly impaired or his ability to conform his conduct to the requirements of law was significantly impaired but not so impaired in either case as to constitute a defense to prosecution or (3) he was criminally liable under sections 53a-8, 53a-9 and 53a-10 for the offense, which was committed by another, but his participation in such offense was relatively minor, although not so minor as to constitute a defense to prosecution or (4) he could not reasonably have foreseen that his conduct in the course of commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person.
“(i) The aggravating factors to be considered shall be limited to the following: (1) The defendant committed the offense during the commission or attempted commission of, or during the immediate flight from the commission or attempted commission of, a felony and he had previously been convicted of the same felony; or (2) the defendant committed the offense after having been convicted of two or more state offenses or two or more federal offenses or of one or more state offenses and one or more federal offenses for each of which a penalty of more than one year imprisonment may be imposed, which offenses were committed on different occasions and which involved the infliction of serious bodily injury upon another person; or (3) the defendant committed the offense and in such commission knowingly created a grave risk of death to another person in addition to the victim of the offense; or (4) the defendant committed the offense in an especially heinous, cruel or depraved manner; or (5) the defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value; or (6) the defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value; or (7) the defendant committed the offense with an assault weapon, as defined in section 53-202a.”
All references throughout this opinion to § 53a-46a are to the 1997 revision unless otherwise indicated.
In State v. Courchesne, 262 Conn. 537, 542, 559, 816 A.2d 562 (2003), we concluded that, when a defendant has been convicted of capital felony for the murder of two persons in the course of a single transaction in violation of § 53a-54b (8), the state, in order to establish the aggravating factor set forth in § 53a-46 (i) (4), must prove only that the defendant committed one, rather than both, of the murders in an especially heinous, cruel or depraved manner.
For sentencing purposes, the court merged the defendant’s capital felony and murder convictions, murder being a lesser included offense of capital felony. In addition to the sentence of death that the trial court imposed on the defendant for his capital felony conviction under § 53a-54b (8), the court also sentenced the defendant to life in prison without the possibility of release for his capital felony conviction under § 53a-54b (9).
The defendant appealed directly to this court pursuant to General Statutes § 51-199 (b), which provides in relevant part: “The following matters shall be taken directly to the Supreme Court ... (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony . . . for which the maximum sentence which may be imposed exceeds twenty years . . . .”
Under the bom alive rule, “only one who has been bom alive can be the victim of homicide.” Commonwealth v. Booth, 564 Pa. 228, 240, 766 A.2d 843 (2001). Thus, at common law, a person who caused the death of a fetus — even a viable fetus — could not be prosecuted for homicide. Id. By contrast, the law considered it a homicide if the fetus was bom alive and then died of injuries that were inflicted in útero. Id.
See footnote 2 of this opinion.
The defendant raises numerous additional claims related to the penalty phase of the proceedings. We do not address some of these claims because they are not likely to arise at any subsequent penalty phase hearing. With respect to the remaining claims, although they may arise at a possible subsequent penalty phase hearing, we elect not to consider them unless and until, upon remand, the defendant is found guilty of the underlying capital felony charge and receives a sentence of death. To proceed otherwise would require us to determine that a penalty phase hearing is likely, a conclusion that we could reach only if we also were to presume that the defendant is likely to be found guilty of the underlying capital offense. We
The fourth amendment to the United States constitution provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirma
The eighth amendment to the United States constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The fourth and eighth amendments are applicable to the states through the due process clause of the fourteenth amendment to the United States constitution. See, e.g., Tuilaepa v. California, 512 U.S. 967, 970, 114 S. Ct. 2630, 129 L. Ed. 2d 750 (1994) (eighth amendment); Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (fourth amendment).
The defendant also asserts that his rights under article first, §§ 7, 8 and 9, of the Connecticut constitution were violated. Because the defendant has not provided a separate state constitutional analysis, we deem his state constitutional claim abandoned. See, e.g., State v. Simpson, 286 Conn. 634, 651 n.17, 945 A.2d 449 (2008).
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). “Under Terry ... an officer may forcibly stop a suspect and engage in a stop and frisk investigation if the officer has a reasonable and articulable suspicion that the suspect has committed or is about to commit a crime.” (Internal quotation marks omitted.) State v. Santos, 267 Conn. 495, 501 n.17, 838 A.2d 981 (2004).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Although the court stated that it would expand on its oral ruling in a subsequent written memorandum of decision, it did not issue such a decision. Instead, the court signed a transcript of its oral ruling in conformance with Practice Book § 64-1, which provides in relevant part: “(a) The court shall state its decision either orally or in writing ... (4) in ruling on motions to suppress under Section 41-12 .... If oral, the decision shall be recorded by a court reporter and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk’s office. ...”
We note that other courts have found reasonable and articulable suspicion when, as in the present case, the murder under investigation recently had occurred, it was committed in the same general vicinity in which the defendant was stopped, and the defendant was the last person to be seen with the victim prior to the murder. See, e.g., Burgeson v. State, 267 Ga.
The police received permission to enter the residence from the girlfriend’s father, who owned the home and also resided there. State v. Azukas, supra, 278 Conn. 271, 273.
We note that Colon never claimed that he did not voluntarily accompany the police to the station. We discussed that aspect of the investigation merely to explain, after concluding that Colon lawfully had been detained under Terry, that his subsequent statements to the police had not been otherwise tainted. See State v. Colon, supra, 272 Conn. 151-52 n.15.
The reasons that the defendant gave include the following: (1) The police did not inform the defendant that he was free to refuse to accompany them to the police station (station); (2) the clear “ ‘implication of obligation’ ” inherent in the request of the police that the defendant accompany them to the station; (3) the defendant never stated that his “ ‘consent’ ” was voluntary; (4) the police did not ask the defendant if he was voluntarily consenting to accompany them to the station; (5) the police did not inform the defendant that he was free to leave before telling him that they wanted him to accompany them to the station; (6) the police did not inform the defendant that he could answer their questions somewhere else other than the station; (7) the police did not advise the defendant of his Miranda rights before informing him that they wanted him to accompany them to the station; (8) the police did not inform the defendant that he was not under arrest before informing him that they wanted him to accompany them to the station; (9) the presence of two or three armed police officers at the scene; (10) the police blocked the defendant’s vehicle before informing him that they wanted him to accompany them to the station; (11) the armed police officers surrounded the defendant’s vehicle before informing him that they wanted him to accompany them to the station; (12) his “ ‘consent’ ” was obtained immediately after he was detained pursuant to Terry, (13) the defendant was ordered out of his vehicle; (14) the police conveyed a strong sense of urgency as demonstrated by the fact that the defendant abandoned his car in the middle of the street; (15) the defendant was not given an opportunity to move his vehicle out of the middle of the street and onto his property before responding to the request of the police that
We reject as irrelevant or unpersuasive the other “circumstances” that the defendant cites as allegedly demonstrating that his consent to go to the police station was involuntary. These include the fact that the police did not inform him of his Miranda rights before they asked him to go to the station, that there was no inclement weather or other conditions that prevented the police from interviewing the defendant in his car or some place other than the station, that the encounter occurred in front of his residence, that he was placed in a small interview room after he arrived at the station, and that he never was told that he could leave the station prior to being interrogated.
The fourteenth amendment to the United States constitution provides in relevant part: “No State shall . . . deprive any person of life, liberty or property, without due process of law . . . .”
The constitution of the United States, article one, § 10, provides in relevant part: “No State shall . . . pass any ... ex post facto Law . . . .”
The defendant also contends that dual application of the bom alive rule and the transferred intent provisions of § 53a-54a (a) violates his rights under the analogous provisions of the state constitution. Because he has not engaged in a separate state constitutional analysis, however, we do not address his claim under the state constitution. See, e.g., State v. Nash, 278 Conn. 620, 623-24 n.4, 899 A.2d 1 (2006) (this court will not review state constitutional claim unless defendant provides adequate, independent legal analysis of that claim).
As we previously indicated; see text accompanying footnote 1 of this opinion; Palmer first attended to Rodgers, whom he determined to be dead. He delivered Antonia approximately ten minutes after Rodgers’ arrival in the emergency department.
The panel denied the motion with respect to the following issues, conclusions and findings: (1) “[t]he legal definition of ‘bom alive’ as applied by the [panel] and its factual basis for finding that Antonia . . . was bom alive . . . and was therefore a person”; (2) “[t]he legal authority [on] which the [panel] held the defendant liable for [the three counts of the information relating to the murder of Antonia]”; (3) clarification as to “whether the bom alive rule was the law of Connecticut, incorporated into the definition of person, at the time the defendant acted, and to what extent, if at all, [the panel] adopted [the] analysis and ruling [of the court, Damiani, J.] on the issue”; (4) “[t]he manner in which the [panel] applied the transferred intent doctrine as defined in State v. Hinton, [supra, 227 Conn. 301]”; (5) “[Antonia’s] legal status at the time the defendant acted”; (6) “[w]hether the [panel] made any finding, aside from applying the doctrine of transferred intent, that the defendant intended to cause the death of Antonia, independent of his intent toward [Rodgers]”; and (7) “[wjhether the [panel] accepted and if so the legal basis for accepting [the] . . . conclusion [of the court, Damiani, J.] that the defendant’s narrowing death penalty scheme argument applies only to the penalty phase and not to the capital felony conviction.”
Because the panel adopted the factual findings and legal conclusions of the court, Damiani, J., our consideration of the defendant’s claim also requires us to review the merits of the court’s decision.
Because there is no dispute that the defendant knew that Rodgers was pregnant with Antonia when he killed Rodgers, we have no occasion to consider whether a defendant who murders a pregnant woman but who is unaware that she was pregnant at the time of that murder also may be liable for the murder of the baby.
This definition has not been amended since the adoption of the revised New York Penal Law in 1965.
We note that a number of courts have indicated that the Model Penal Code definition of “human being” as a “person who has been bom and is alive” represents a codification of the common-law bom alive rule. See State v. Lamy, 158 N.H. 511, 515, 969 A.2d 451 (2009); see also People v. Lage, Docket No. 08CA0617, 2009 Colo. App. LEXIS 989, *21 (May 28, 2009) (Connelly, J., concurring in part and dissenting in part). Indeed, the commentary to the Model Penal Code provides that “[§] 210.0 (1) defines the term ‘human being’ to mean a person ‘who has been bom and is alive.’ The effect of this language is to continue the common-law rule limiting criminal homicide to the killing of one who has been bom alive.” Model Penal Code § 210.1, comment 4 (c) (1980). The commentary goes on to state, however, that “[t]he significance of this definition of ‘human being’ is that it excludes from criminal homicide the killing of a fetus. This exclusion is warranted in order to avoid entanglement of abortion in the law of homicide.” Id. Thus, it is not entirely clear whether the Model Penal Code definition of “human being” is applicable when, as the state alleges in the present case, an infant is bom alive but dies from injuries that he or she had suffered in útero. This very issue was discussed by the Texas Court of Appeals in Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997, pet. ref d), which stated the following in interpreting the identical definitional provisions of the Texas Penal Code: “The ‘has been bom and is alive’ definition in the [Pjenal [Cjode does not address the precise issue before us. ‘Has been bom and is alive’ does not tell us at what point in time the individual needs to have been bom and be alive. The dissent seems certain that the victim’s status under the law is frozen at the moment of the alleged misconduct. We do not believe the statute provides a clear mandate of this interpretation. ” Id., 137. After explaining that the statutory ambiguity made it appropriate to consult extratextual factors, including the common law, for the purpose of ascertaining the meaning of the term “human being,” the court in Cuellar observed that “[tjhe Texas definition ‘has been bom and is alive’ closely resembles the ancient common law ‘bom alive’ doctrine.” Id. The court thereafter adopted the common-
In his concurring and dissenting opinion, Justice Schaller, focusing on the fact that our Penal Code contains no definition of the term “human being,” asserts, first, that the Model Penal Code definition of that term does, in fact, expressly contemplate the fact pattern in the present case and, second, that the failure of our legislature to adopt the Model Penal Code definition of the term must be viewed as its renunciation of that definition. Contrary to the contention of Justice Schaller, we consider it more likely that the commentary to the Model Penal Code was intended to clarify that the killing of a fetus in útero does not constitute the crime of homicide, and that that definition does not expressly address the more specific issue of whether it is a homicide when an infant, having been injured in útero, is bom alive and then dies of his or her injuries. Even if Justice Schaller is correct, however, that the Model Penal Code definition of the term “human being” was intended to encompass the particular factual scenario presented by this case, that fact would not alter or affect our interpretation of this state’s murder statute as embodying the bom alive rule because the commentary to the Model Penal Code also states: “Several modem statutes follow the Model [Penal] Code in making this limitation [that is, restricting homicide to the ldlling of one who has been bom alive] explicit. Others are silent on the point, but absent express statement to the contrary, they too may be expected to carry forward the common-law approach.” (Emphasis added.) Model Penal Code § 210.1, comment 4 (c) (1980). Because our statutory scheme is patterned after the Model Penal Code, we must presume that our legislature was familial- with this commentary and, consequently, that it would have acted in accordance with the commentary by expressly repudiating the Model Penal Code definition of the term “human being” if, in fact, the legislature had intended to adopt a different definition of the term. Indeed, as one prominent commentator has explained, “[sjeveral criminal codes define ‘person’ for purposes of the law of homicide as ... a human being who has been bom and was alive at the time of the homicidal act. . . .
“[When] the term ‘person’ or ‘human being’ or like term in the homicide statutes is not defined by statute, the courts have usually applied the common law ‘bom alive’ interpretation.” (Citations omitted; emphasis added.) 2 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 14.1 (c), pp. 419-20 n.13. This latter fact, along with the commentary to the Model Penal Code, refutes Justice Schaller’s contention that we should not recognize
As this court previously has observed, “[t]he common law is generally described as those principles, usage, and rules of action applicable to the government and security of persons and property which do not rest for their authority [on] any express and positive declaration of the will of the legislature.” (Internal quotation marks omitted.) Moore v. McNamara, 201 Conn. 16, 24, 513 A.2d 660 (1986); see also Western Union Telegraph Co. v. Call Publishing Co., 181 U.S. 92, 102, 21 S. Ct. 561, 45 L. Ed. 765 (1901) (“[a]s distinguished from law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgments and decrees of the courts recognizing, affirming and enforcing such usages and customs; and, in this sense, particularly the ancient unwritten law of England” [internal quotation marks omitted]); State v. Muolo, 118 Conn. 373, 378, 172 A. 875 (1934) (defining our common law as “the prevailing sense of the more enlightened members of a particular community, expressed through the instrumentality of the courts, as to those rules of conduct which should be definitely affirmed and given effect under the sanction of organized society, in view of the particular circumstances of the time, but with due regard to the necessity that the law should be reasonably certain and hence that its principles have permanency and its development be by an orderly process”).
We note that the same explication and acknowledgment of the bom alive rule also is contained in the last version of Swift’s Digest. See 2 Z. Swift, A Revision of Swift’s Digest of the Laws of Connecticut (1884) p. 294.
In his concurring and dissenting opinion, Justice Zarella asserts that we “subscribe to the view that all of the English common law has been assimilated into the common law of this state,” and that our conclusion in that regard “ignores” and “disregard[s]” our case law to the contrary. Justice Zarella’s assertion is incorrect. As we expressly stated, we recognize only that portion of the common law of England that we deem relevant and appropriate for purposes of this state. As we explain, we conclude that the bom alive rule was the common law of this state when our Penal Code was adopted and that the rule has not been abrogated by the legislature.
Justice Zarella states that our conclusion “that the bom alive rule is well established in the common law of this state lacks any convincing support because Connecticut courts never have acknowledged and applied it in the criminal context” and that, “ [c] onsequently, there can be no presumption that they would have done so had the issue been presented.” This statement indicates that, in Justice Zarella’s view, a doctrine or principle does not represent the common law of this state until it has been expressly
See, e.g., United States v. Spencer, supra, 839 F.2d 1343 (“[In 1908, when] 18 U.S.C. § 1111 was passed by Congress to enlarge the common law definition of murder ... it was well-established in common law . . . that an infant bom alive that later died as a result of fetal injuries was a human being. . . . States confronting this question prior to 1908 had unanimously considered infants bom alive as human beings. ... No court has ever held otherwise. ... In view of [Congress’] intent to reflect the state and common-law definition of murder when it passed [18 U.S.C. § 1111], and the state and common-law acceptance of infants who died subsequent to birth due to fetal injuries as human beings, it seems clear that Congress intended fetal infanticide to be included within the statutory definition of murder under 18 U.S.C. § 1111.” [Citations omitted; internal quotation marks omitted.]); State v. Cotton, supra, 197 Ariz. 589 (“[c]ourts in other jurisdictions have also consistently concluded that the death of an infant who is bom alive from injuries inflicted in útero constitutes homicide”); Keeler v. Superior Court, 2 Cal. 3d 619, 627, 470 P.2d 617, 87 Cal. Rptr. 481 (1970) (“[b]y the year 1850 . . . the common law [bom alive rule] had long been accepted in the United States”); State v. Hammett, 192 Ga. App. 224, 225, 384 S.E.2d 220 (1989) (“Under Georgia law, a person who injures a pregnant woman so that her fetus, though bom alive, subsequently dies by reason of the
In his concurring and dissenting opinion, Justice Zarella refuses to credit the views expressed by Zephaniah Swift with respect to the common-law underpinnings of the bom alive rule. In doing so, Justice Zarella ignores the fact that “Swift led the development of an American (as distinct from an English) common law. He wrote the first text on American [l]aw in 1795 and 1796, setting forth the common law of Connecticut based on the actual practices of local judges.” (Emphasis added.) W. Horton, The Connecticut State Constitution: A Reference Guide (1993) p. 19; see also Walkinshaw v. O’Brien, 130 Conn. 122, 132, 32 A.2d 547 (1943) (characterizing Swift as
Rather, Justice Zarella contends that our reliance on Swift is misplaced in light of our observation in Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988), that, because “Swift’s Digest not only covered Connecticut law, but encompassed the law ‘generally’ ”; id., 91-92 n.10; unless Swift expressly noted that a particular principle “was determined to be part of Connecticut law as opposed to a part of the English common law in general”; id., 91 n.10; his commentary cannot be considered authoritative with respect to the law of this state. In Ullmann v. State, supra, 230 Conn. 698, however,
Justice Zarella contends that the language of our murder statute that “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person”; General Statutes § 53a-54a (a); bars application of the bom alive rule. Specifically, Justice Zarella asserts that “[t]here can be no clearer expression of a temporal nexus between the intent necessary to commit the crime and the act of committing the crime than [under § 53a-54a (a)]. The use of the term ‘when’ [in § 53a-54a (a)] mandates that the defendant must have the intent to cause the death of a person prior to, or contemporaneously with, the act that is the cause of death.” Justice Zarella’s novel construction of § 53a-54a is incorrect because the term “when” in § 53a-54a (a) is not used in its temporal sense, as Justice Zarella contends; rather, the term means “if” or “in the event that . . . .” Webster’s Third New International Dictionary (defining “when” as, inter alia, “in the event that: on condition that: if’). It is perfectly clear that the term “when” is used to mean “if’ or “in the event that” for purposes of § 53a-54a (a) because the drafters of our Penal Code, like the drafters of the Model Penal Code and New York Penal Law, after which our Penal Code is modeled, elected to use the term “when” repeatedly and consistently in this state’s criminal statutes, including those that inarguably impose no temporal link between the mens rea and the actus reus. See, e.g., General Statutes § 53a-56 (a) (1) (“[a] person is guilty of manslaughter in the second degree when . . . [h]e recklessly causes the death of another person” [emphasis added]); General Statutes § 53a-70 (a) (1) (“[a] person is guilty of sexual assault in the first degree when such person . . . compels another person to engage in sexual intercourse by the use of force against such other person or a third person” [emphasis added]); General Statutes § 53a-94 (a) (“[a] person is guilty of kidnapping in the
Justice Zarella contends that Hall is distinguishable from the present case because, in contrast to this state’s murder statute, and New York’s virtually identical second degree murder statute; see N.Y. Penal Law § 125.25 (McKinney 2009); New York’s second degree manslaughter statute contains no requirement of a temporal nexus between the intent of the perpetrator to kill the victim and the victim’s status as aperson. See N.Y. Penal Law § 125.15 (1) (McKinney 2009). This assertion also fails. Justice Zarella concedes, as he must, that, under Hall, the reckless killing of a fetus that had been injured in útero but that subsequently died after having been bom alive is sufficient to sustain a conviction of manslaughter in the second degree under New York Penal Law. Justice Zarella maintains, however, that the intentional killing of that same fetus would not give rise to the crime of intentional murder because the bom alive rale is inapplicable. Thus, according to Justice Zarella, under New York’s homicide laws, a defendant who recklessly kills a fetus that dies after being bom alive is guilty of manslaughter, whereas a defendant who intentionally kills a fetus that dies after being born alive cannot be prosecuted for murder. We can conceive of no reason why the New York legislature would have intended such an untenable result. For
Of course, “[a] judicial construction of a statute is an authoritative statement of what the statute meant before, as well as after, the decision of the case giving rise to that construction.” (Emphasis added.) Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994); accord Washington v. Commissioner of Correction, 287 Conn. 792, 810, 950 A.2d 1220 (2008). Moreover, “when [a] court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.1"Rivers v. Roadway Express, Inc., supra, 313 n.12; accord Washington v. Commissioner of Correction, supra, 811.
Justice Zarella contends that, in recognizing the bom alive rule, we have created “a new substantive offense not contained in our Penal Code . . . .” We have done nothing of the kind. In adopting the rule, we simply have construed the term “human being,” for purposes of our murder statute, in accordance with the long-standing common-law principie that the term includes a fetus that has been bom alive.
Justice Zarella also asserts that our recognition of the bom alive rule establishes, “for the first time in any jurisdiction [of which Justice Zarella is] aware . . . that the criminal act of murder does not require that the intent to murder be present either before or during the commission of the crime.” This assertion also is meritless. The defendant does not dispute that the evidence establishes that he had the intent to murder at the time of the conduct at issue, and, under the bom alive rule, if the perpetrator had the requisite intent to murder the fetus in útero, the subsequent death of the fetus after birth renders the perpetrator culpable of murder in every state in which the bom alive rule has been adopted.
We note that the bom alive rule affords greater protection to criminal defendants than a statute that makes it a homicide to kill a viable fetus because, under the former, a murder prosecution will lie only if the state can establish that the fetus survived the injuries that it suffered in útero. Of course, a viability rale requires no such proof because the fetus need not be bom alive after having sustained injuries in útero for the defendant to be culpable of murder.
“[As of March, 2010], at least [thirty-eight] states have fetal homicide laws. The states include: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wisconsin.” National Conference of State Legislatures, Fetal Homicide Laws (March, 2010), available at http://www.ncsl.org/programs/heaHh/fethom.htm (last visited May 27, 2010).
We note that Justice Zarella accepts as uncontroverted the proposition articulated by Clarke D. Forsythe; see C. Forsythe, supra, 21 Val. U. L. Eev. 563; that “the bom alive rule developed as a rule of causation and no longer is necessary due to advances in medical science . . . .” Specifically, Justice Zarella asserts that, “if medical technology had been capable of assessing the health of the fetus in times past, there would have been no reason for creating the bom alive rule.” Although some courts have abrogated the bom alive rule on the basis that the rule is no longer needed for purely evidentiary purposes, a number of commentators have rejected Forsythe’s theory as overly simplistic and ideologically driven, explaining that the bom alive rule is a substantive rule for defining legal personhood. For example, one such commentator states: “Forsythe is wrong about the purely evidentiary nature of the [bom alive rule]. It seems rather that there are three reasons why the common law insisted on live birth for a homicide conviction, only one of which is evidentiary. That is the reason Forsythe gives — namely, that in the past, it was not possible to be sure that a miscarriage or stillbirth was the result of the attack on the pregnant woman, or whether the fetus was dead before the attack. Indeed, in the past it was not always clear if the woman was even pregnant. However, in addition to this evidentiary reason, there are two other reasons why live birth traditionally has been considered significant. First, prior to live birth, the fetus was considered to be a part of the pregnant woman, and not a separate existence. In [the] words [of Oliver Wendell Holmes], it was not in esse [that is, in being] until it was bom alive. Second, a fetus is not yet a fully developed human being, a person like the rest of us. This was expressed by the great common-law authority, Sir Edward Coke, who held that the killing of a fetus is a ‘great misprision, and no murder.’ But if the child is bom alive and then dies from the attack on its mother, this is murder, ‘for in law it is accounted a reasonable creature, in rerum natura, when it is bom alive.’ [Moreover, Sir William]
* * *
“Blackstone may have been influenced by evidentiary considerations. However, this [factor alone] does not cohere with the fact that the common law did not allow recovery for prenatally inflicted wounds by a child who survived live birth. The reason for refusing to allow such suits was not the evidentiary problem of proving that the plaintiffs injuries were caused by the defendant’s negligence. Rather, it was universally held that the defendant owed no duty of care to a being that was not in esse at the time of the negligence.
“It seems, then, that neither the requirement of separate existence, nor that of being a reasonable creature, is based solely on the difficulties of proving that the attack on the pregnant woman killed the fetus. If the bom alive rule is properly interpreted as a substantive definition of a legal person, and is not merely evidentiary, it is not made obsolete by advances in medical technology.” B. Steinbock, Life Before Birth: The Moral and Legal Status of Embryos and Fetuses (Oxford University Press 1992) c. 3, pp. 105-107; see also K. Saveli, “Is the ‘Bom Alive’ Rule Outdated and Indefensible?,” 28 Sydney L. Rev. 625,633 (2006) (“[a]s Forsythe himself concedes, [his theory] stands in stark contradiction to a substantial body of modem authority in [favor] of the view that the [fetus] does not attain legal personality until it is bom alive”); cf. People v. Greer, supra, 79 Ill. 2d 114 (“The extent to which the unborn child is to be accorded the legal status of one already bom is one of the most debated questions of our time, and one to which we do not find any completely consistent response. . . . [0]pposing tendencies to protect the fetus in some instances and not in others have long coexisted.”). Moreover, some state legislatures, such as that of North Carolina, have elected to retain the bom alive rule and to treat the killing of a fetus in útero as a felony against the mother. N.C. Gen. Stat. § 14-18.2 (b) (2009) (“[a] person who in the commission of a felony causes injury to a woman, knowing the woman to be pregnant, which ipjury results in a miscarriage or stillbirth by the woman is guilty of a felony that is one class higher than the felony committed”); see State v. Beale, 324 N.C. 87, 93, 376 A.2d 1 (1989) (adopting bom alive rule for purposes of state’s homicide statute). Other states treat the killing of a fetus as the crime of feticide as distinguished from the crime of homicide. See, e.g., Ind. Code Ann. § 35-42-1-6 (LexisNexis 2009) (“A person who knowingly and intentionally terminates a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus commits feticide, a Class B felony. This section does not apply to an abortion performed in compliance with . . . [law].”). States that have adopted one of these two approaches have done so, at least in part, to avoid the concern, wholly unrelated to any evidentiary considerations, that treating a fetus as a person under the state’s homicide statute could
See Del. Code. Ann. tit. 11, § 606 (2007) (abuse of pregnant female in first degree resulting in termination of pregnancy is class B felony); N.H. Rev. Stat. Ann. § 631:1 (2007) (person is guilty of first degree assault, which is class A felony, if he “[pjurposely or knowingly causes injury to another resulting in miscarriage or stillbirth”); N.M. Stat. § 30-3-7 (2004) (injury to pregnant woman resulting in stillbirth or miscarriage is third degree felony); N.C. Gen. Stat. § 14-18.2 (2009) (injury to pregnant woman resulting in miscarriage or stillbirth in commission of felony is guilty of felony that is one class higher than felony committed).
See generally, e.g., C. Forsythe, supra, 21 Val. U. L. Rev. 563.
For example, Forsythe testified that a significant number of states had enacted statutes that treat the killing of a fetus as some form of homicide. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2002 Sess.,
Roe v. Wade, 410 U.S. 113, 153-54, 163-65, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (recognizing and setting forth parameters of woman’s constitutionally protected right to abortion).
As the foregoing testimony illustrates, and as we discuss more fully hereinafter, a primary obstacle to the institution of fetal homicide laws nationwide has been “the political concern that treating [the killing of a fetus] as homicide would erode constitutionally protected reproductive freedoms . . . .” D. Curran, note, “Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws,” 58 Duke L.J. 1107, 1111 (2009).
For example, in one exchange between O’Brien and Representative Robert Farr, O’Brien expressed the view that “[t]he problem is not that we don’t recognize the unborn child in Connecticut as a person. The problem is that we have the bom alive rule . . . [that requires it] to take its first breath [before you can prove that it is a person].” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2,2003 Sess., p. 426. Representative Farr responded, “[b]ut the bill before us” — that is, the bill that ultimately became P.A. 03-21 — “actually [covers a fetus] from conception, it [just] doesn’t treat
The legislative history of P.A. 03-21 notwithstanding, there is only one possible reason why the legislature opted to include within the protection of that provision only those fetuses that are not bom alive, namely, the bom alive rule, of which the legislature was well aware and which operates to protect an infant who suffers injuries in útero but who is bom alive and then dies from those injuries. Indeed, neither Justice Zarella nor the defendant posits any other conceivable reason why P.A. 03-21 excludes from its purview an infant who is bom alive but who subsequently dies from injuries sustained in útero. Moreover, we do not share Justice Zarella’s view that the legislature was oblivious to the consequences of its enactment of P.A. 03-21 with respect to the class of victims who die from prenatal injuries after being bom alive because we are unwilling to assume that the legislature enacted P.A. 03-21 without any thought or regard for that class of victims, especially in view of the fact that the legislature was well aware of the bom alive rule generally and the pendency of the present case specifically. Indeed, as we discuss more fully hereinafter, Justice Zarella’s view cannot be squared with numerous fundamental principles of statutory construction, including the principle that the legislature is deemed to intend the consequences of its action or lack thereof on all existing statutes. See, e.g., Civardi v. Norwich, 231 Conn. 287, 298, 649 A.2d 523 (1994).
Justice Zarella nevertheless asserts that the sole purpose of the legislature in enacting P.A. 03-21 was “to achieve a compromise between pro-choice
We note, finally, that, in Justice Zarella’s view, the legislative history of P.A. 03-21 supports his conclusion that the statutory scheme, as he interprets it, that is, a person who intentionally kills a fetus in útero is guilty of a class A felony whereas a person who intentionally kills an infant who is bom alive but who subsequently dies from injuries sustained in útero is guilty of no crime, does not represent a gap in our homicide statutes. Our view of that same legislative history leads us to the opposite conclusion and also to the related conclusion that the legislature did not opt, and rationally never would have opted, for such a scheme.
We note, moreover, that, in 1999, the office of legislative research prepared another report on the trial court’s ruling on the defendant’s motion to dismiss in the present case. See Office of Legislative Research, Research Report No. 99-R-0772, “Murder Case Involving Death of a Baby Injured As aFetus” (July 27,1999). The report noted that, “[i]n aprobable cause hearing, the court considered whether Antonia, who sustained her iryuries as a fetus
We recognize that P.A. 03-21 was enacted several years after the defendant committed the offenses of which he stands convicted. That fact does not alter our analysis, however, because the bom alive rule was the common law of this state when the defendant committed those offenses. Public Act 03-21 merely reflects the decision of the legislature to reaffirm the applicability of the rule rather than to abrogate it.
See, e.g., Idaho Code Aim. § 18-4001 (2004) (“[m]urder is the unlawful killing of a human being, including, but not limited to, a human embryo or fetus”); Miss. Code Ann. § 97-3-37 (1) (2006) (“[f]or purposes of the offenses [of homicide, capital murder and assault], the term ‘human being’ includes an unborn child at every stage of gestation”); S.D. Codified Laws § 22-16-1 (2006) (“[h]omicide is the killing of one human being, including an unborn child, by another”). These states, however, carve out an exception for legal abortions performed by licensed medical professionals. See, e.g., Miss. Code Ann. § 97-3-37 (3) (2006).
Justice Zarella devotes much of his opinion to attacking the born alive rule as an outmoded relic of the past — for that reason, Justice Zarella characterizes our recognition of the rule as “ ‘revolting’ ” — and to explaining that a majority of states now have rejected the rule. Only after his lengthy attack on the legitimacy of the rule does Justice Zarella concede that it has been repudiated in other jurisdictions because it has been deemed to be unnecessarily narrow or restrictive in scope, that is, because it does not extend to the murder of a fetus in útero. Thus, Justice Zarella recognizes, as he must, that those jurisdictions that have rejected the rule have done so because it is not inclusive enough and that they therefore have replaced the rule with a broader criminal scheme that includes the intentional killing of a fetus.
Justice Zarella takes us to task for characterizing P.A. 03-21 as criminalizing the killing of a fetus because the statute classifies the prohibited conduct as an assault and not as a homicide. Justice Zarella’s criticism is unwarranted because, although P.A. 03-21 does indeed criminalize an assault on apregnant woman, it does so only when her pregnancy is terminated or, in other words, her fetus is killed. Consequently, it is inarguable that P.A. 03-21 makes it a crime to kill a fetus, albeit a crime classified as one against the mother.
See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2002 Sess., pp. 2403-2404, remarks of Forsythe; see also id., pp. 2417-19, remarks of O’Brien.
Indeed, it recently has been observed in a pro abortion rights publication that one of those who spoke in favor of the bill, namely, Forsythe, the president of Americans United for Life, is at the forefront of a movement to overturn the seminal abortion case of Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). “The Supreme Court’s 1973 Roe v. Wade decision galvanized opponents of legal abortion and led socially conservative Protestants and Catholics to begin cooperating, albeit in limited ways, during the late 1970s and early 1980s. In the mid-1990s the alliance was formalized in a document entitled Evangelicals and Catholics Together: The Christian Mission in the Third Millennium that committed the two groups to working together on social and cultural issues, most notably abortion ....
“Although efforts to overturn Roe have been studied from many different perspectives, little attention has been paid to the activities of socially conservative lawyers who try to undermine abortion rights by devising legal rationales for defining the human organism in all stages of development as a person. Legal advocacy groups associated with socially conservative Christian groups have followed a two-pronged strategy: 1) crafting model fetal rights legislation and 2) developing legal arguments about why existing laws should be re-interpreted in ways that result in embryos and fetuses being legally defined as persons.” (Citation omitted.) J. Schroedel, Religious Coalition for Reproductive Choice Research Report, “Law, Religion, and Fetal Personhood” p. 2, available at http://www.rcrc.org/pdfi RCRC_EdSeries_LRFP.pdf (last visited May 27, 2010). According to Schroedel, “[t]he two Christian legal groups that have been in the forefront in crafting model fetal rights statutes and developing novel legal rationales for stretching existing statutory law to encompass fetal life are Americans United for Life . . . and the National Right to Life Committee . . . .” Id., p. 9 n.2. A second person who spoke in favor of Raised House Bill No. 5747 (2002), O’Brien, represented the National Right to Life Committee before the judiciary committee. In light of the strong feelings on both sides of the abortion issue, one would have to blink at reality to think that the debate engendered by the proposed legislation — and with it, the debate about the proposed abolition of the bom alive rule — somehow was lost on the members of the legislature when they rejected that bill in favor of P.A. 03-21.
Justice Zarella asserts that the legislative history of Raised House Bill No. 5747 (2002) (fetal homicide bill), which included a viable fetus within the definition of “person” for purposes of our homicide statutes and which the legislature rejected due to concerns about its potential for undermining reproductive freedoms, and the legislative history of P.A. 03-21 suggest an unwillingness by the legislature to adopt the bom alive rale because the rale “employs exactly the same solution as the fetal homicide bill, namely, granting the fetus independent legal rights by imposing a punishment expressly related to its death, a step the . . . legislature clearly was unwilling to take.” This analysis is off the mark because, under the fetal homicide bill, a viable fetus is accorded the same treatment as any other person, whereas, under the bom alive rule, the protection of the homicide statutes is extended only when the fetus is bom alive and, consequently, is no longer a fetus but a child. Thus, contrary to Justice Zarella’s assertion, there is absolutely nothing about treating the death of such a child as a homicide that implicates any of the same concerns that prompted the legislature to reject the fetal homicide bill.
Justice Zarella also disregards the bom alive rale itself, claiming that it never was the common law of this state. See footnote 39 of this opinion.
Justice Zarella acknowledges that repudiating the bom alive rule results in a statutory scheme pursuant to which it is a class A felony under P.A. 03-21 to assault a woman that results in the death of her fetus, but no crime at all to inflict injuries on a fetus in útero if that fetus is bom alive and subsequently dies of those injuries. According to Justice Zarella, this result is a “matter of concern,” but it “does not represent a gap in the law.” We do not understand why, if there is no gap in the scheme, that scheme nevertheless is a cause for concern. More importantly, however, we strongly disagree with Justice Zarella that there would be no gap in the law under the statutory construction that he advocates; indeed, we believe it to be self-evident that the gap would be so great as to render the statutory scheme wholly irrational. Although we must interpret statutes so as to ensure consistency and to avoid bizarre results; see, e.g., Dias v. Grady, supra, 292 Conn. 361; construing the statute to accomplish the result that Justice Zarella endorses does precisely the opposite; that construction renders the statutory scheme completely inconsistent and achieves a truly bizarre result.
Thus, contrary to the assertion of Justice Zarella, the rule of lenity is wholly inapplicable to our resolution of the issue of statutory interpretation presented by this appeal because “[tjhe touchstone of [the] rule ... is statutory ambiguity. . . . Thus . . . courts do not apply the rule of lenity unless a reasonable doubt persists about astatute’s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute.” (Citation omitted; emphasis in original; internal quotation marks omitted.) State v. Lutters, 270 Conn. 198, 219, 853 A.2d 434 (2004). For the reasons that we have articulated, we disagree with Justice Zarella that the relevant extratextual sources, including the pertinent legislative history, “do not . . . assist in clarifying the statutes at issue.” Footnote 38 of Justice Zarella’s concurring and dissenting opinion. We conclude,
Although Justice Zarella argues to the contrary; see footnote 42 of this opinion; that argument lacks merit for the reasons that we already have enumerated.
The only case that Justice Zarella has found to support his contention concerning the purported requirement of a temporal nexus between the defendant’s conduct and the victim’s status is State v. Aiwohi, 109 Haw. 115, 123 P.3d 1210 (2005), in which an infant who was bom alive died thereafter from injuries suffered in útero as a result of his mother’s ingestion of crystal methamphetamine. Id., 115-16. In Aiwohi, the state charged the mother with manslaughter in connection with her infant’s death, and the mother filed a motion to dismiss the indictment, claiming, inter alia, that the bom alive rule, which the state had intended to invoke, was not embodied in Hawaii’s homicide statutes. See id., 116-18. The mother entered a plea of no contest, reserving the right to appeal the denial of her motion to dismiss. Id., 116. On appeal, the Supreme Court of Hawaii declined to apply the bom alive rule, observing, first, that the “overwhelming majority of the jurisdictions confronted with the prosecution of a mother for her own prenatal conduct, causing harm to the subsequently bom child, refuse to permit such prosecutions.” Id., 119. The court then concluded that the bom alive rule was inconsistent with the Hawaii Penal Code because a principle underlying that code is “the concept that the [mother’s] conduct must occur at a time when the victim is within the class contemplated by the legislature.” Id., 126. In doing so, however, the court expressly acknowledged that “an overwhelming majority of the jurisdictions confronted with the prosecution of a third party for conduct perpetrated against a pregnant mother, causing the death of the subsequently bom child, uphold the convictions of the third parties.” (Emphasis added.) Id., 123; see also id., 125-26 (acknowledging “modem trend in other jurisdictions supporting the proposition that a third party may be prosecuted for conduct perpetrated against a pregnant mother that causes the death of the child subsequently bom alive”). Indeed, we are aware of no other case, and Justice Zarella has cited none, in which a court has construed its state’s homicide statutes as the court did in Aiwohi.
Justice Zarella also claims that the proliferation of state statutes abandoning the bom alive rule is due to the fact that, in those states that have enacted such statutes, the legislature “wished to restore the temporal connection between the criminal conduct and the status of the victim . . . .” (Emphasis in original.) This is not trae. As Justice Zarella acknowledges, these statutes generally “defin[e] homicide to include the death of an unborn child or fetus from injuries inflicted in útero”; (emphasis added); a classification that does not exclude from its purview the infliction of injuries on a viable fetus that is bom alive and that subsequently dies from those injuries. Thus, these new homicide statutes broaden the class of victims protected thereunder by redefining that class, an innovation that bears no relevance
Contrary to the view expressed by Justice Zarella, our decision in Valeriano v. Bronson, 209 Conn. 75, 90, 546 A.2d 1380 (1988), in which we rejected a claim that the year and a day rule represented the common law of this state, has no applicability to the present case. The genesis of that rule, which bars a homicide conviction if the victim does not die within one year and one day of the criminal misconduct, was the concern that primitive medical science could not discern the cause of death with reasonable certainty. See, e.g., 40 Am. Jur. 2d 589, Homicide § 13 (2008). Valeriano is inapposite because whatever vitality the year and a day rule once might have had, the rule no longer is necessary due to medical and scientific advances. By contrast, the bom alive rule, although no longer necessary as a rule of causation due to similar advances, continues to serve a vital function as a component of our Penal Code in light of the legislative policy decision not to treat the killing of a fetus as a form of homicide. Thus, rejection of the bom alive rule, unlike rejection of the year and a day rule, would lead to a bizarre and untenable result: the killing of an infant who dies from injuries suffered in útero after being bom alive would not be a crime, whereas the killing of a fetus who dies in útero would be a class A felony under P.A. 03-21. As we explained, the legislature could not possibly have intended such a result.
Justice Zarella also asserts that the failure of the legislature to renounce the bom alive rule in light of the trial court’s decision in the present case to recognize the rule more than eleven years ago; see generally State v. Courchesne, supra, 46 Conn. Sup. 63; is attributable to the fact that this case remains in litigation. See footnote 32 of Justice Zarella’s concurring and dissenting opinion. We do not share Justice Zarella’s view of the reason for the legislature’s inaction. If, as Justice Zarella maintains, it were the position of the legislature that the bom alive rule does not represent the law of this state, we cannot imagine that the legislature would sit back and permit the state, at great expense, to seek the death penalty against the defendant, as it has, only to repudiate the rule, if this court does not do so, after the defendant has been confined wrongfully on death row for years. We presume, rather, that, if the legislature disagreed with the trial court’s recognition of the bom alive rule, the legislature would have acted in the interests of all involved, including the judiciary, and effectively terminated the capital proceedings against the defendant by clarifying its position on the bom alive rule.
The defendant urges us to invoke our supervisory authority over the administration of justice; see, e.g., State v. Padua, 273 Conn. 138, 178, 869 A.2d 192 (2005); and hold that a defendant cannot be eligible for the death penalty predicated on the dual application of the bom alive rule and the doctrine of transferred intent. We decline the defendant’s invitation to do so for several reasons, primarily because the legislature has provided no indication that they should not be applied together when, as in the present case, they both have applicability. We therefore see no justification for invoking our supervisory authority to thwart the intent of the legislature in the manner that the defendant advocates.
“ [A] statute is not void for vagueness unless it clearly and unequivocally is unconstitutional, [and] every presumption in favor of its validity [is to be made], ... To demonstrate that [a statute] is unconstitutionally vague as applied to [the defendant, he must] . . . demonstrate beyond a reasonable doubt that [he] had inadequate notice of what was prohibited or that [he was] the victim of arbitrary and discriminatory enforcement. . . . [T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” (Internal quotation marks omitted.) State v. Winot, 294 Conn. 753, 759, 988 A.2d 188 (2010); accord State v. Scruggs, 279 Conn. 698, 709-10, 905 A.2d 24 (2006).
“The rule of lenity concerns situations in which a legislature fails to give notice of the scope of punishment by leaving ‘a grievous ambiguity or uncertainty in the language and structure of the [statute], such that even after a court has seized everything from which aid can be derived, it is still left with an ambiguous statute,’ Chapman v. United States, 500 U.S. 453, 463, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (1991), in which case the rule of lenity tips the scales in favor of the defendant by requiring the court ‘to impose the lesser of two penalties.’ United States v. Venturella, 391 F.3d 120, 132 (2d Cir. 2004) . . . .” (Citation omitted.) Sash v. Zenk, 439 F.3d 61, 64 (2d Cir. 2005).
The defendant contends that his “motion to dismiss should have been granted because the [panel’s] novel integration of the bom alive rule and the doctrine of transferred intent created an unconstitutionally vague theory of murder as applied to [his] conduct . . . and . . . under . . . the due process [clause] ... of the United States . . . [constitution] should be applied prospectively only.” In support of this broad contention, the defendant claims, more specifically, that “[a] reasonable person in the defendant’s position at the time he acted would not have understood that his actions violated the murder and capital felony statutes as to the future Antonia .... Because [the defendant’s] convictions necessitated a strained and unprecedented interpretation and application of the ‘bom alive’ rule and the transferred intent doctrine, the application of this new rule of law to him retroactively violates his . . . constitutional right to due process of law.” In essence, therefore, the defendant claims that our recognition of the bom alive rule and its application to him is fundamentally unfair because he reasonably could not have anticipated that statutory interpretation. As we explain hereinafter, the defendant’s due process claim fails because, as we previously discussed, the bom alive rule was an established common-law principle when our Penal Code was enacted; the rule, therefore, has been embodied in our homicide statutes since that time, and, accordingly, the defendant, as with the public generally, is deemed to be on notice of the applicability of the rule.
The court in Rogers further explained why reaffirmation of the Bouie standard was appropriate: “We believe [that] this [restriction on the due process limitations on the retroactive application of judicial interpretations of criminal statutes to those that are unexpected and indefensible by reference to the law that had been expressed prior to the conduct in issue] adequately serves the common law context .... It accords common law courts the substantial leeway they must enjoy as they engage in the daily task of formulating and passing [on] criminal defenses and interpreting such doctrines as causation and intent, reevaluating and refining them as may be necessary to bring the common law into conformity with logic and common sense. It also adequately respects the due process concern with fundamental fairness and protects against vindictive or arbitrary judicial lawmaking by safeguarding defendants against unjustified and unpredictable breaks with prior law.” Rogers v. Tennessee, supra, 532 U.S. 461-62.
Although Justice Schaller never expressly states that our interpretation of § 53a-54a as embodying the bom alive rule is both unexpected and indefensible in light of the state of our law in 1998, he necessarily reaches that conclusion because, as he acknowledges, that is the showing that a defendant must make to establish a violation of the fair notice requirement. See, e.g., Rogers v. Tennessee, supra, 532 U.S. 462. We note, furthermore, that, to the extent that Justice Schaller relies on a separate void for vagueness analysis to support his conclusion of a due process violation, as we have explained, that analysis fails for the same reason that the defendant’s retroactivity claim fails, that is, because our interpretation of our murder statute as embodying the bom alive rule is predicated on the application of well established principles of statutory construction.
By contrast, the constitutional analysis that Justice Schaller employs would lead to an unprecedented result. Neither the defendant nor Justice Schaller has identified a case from any jurisdiction in which even a single judge has determined that applying the bom alive rule is unconstitutional, either as a violation of due process or for any other reason. We also have been unable to find such a case. Thus, even though the bom alive rule first was recognized several centuries ago, and even though the rule has been applied by many courts in many different jurisdictions over those many years, to the best of our knowledge, this case represents the very first time that a judge ever has concluded that the application of the rule runs afoul of the constitution. Notwithstanding the unprecedented nature of his conclusion, Justice Schaller nevertheless is persuaded that our application of the bom alive rule “is clearly and unequivocally unconstitutional”; (internal quotation marks omitted) State v. Winot, supra, 294 Conn. 759; and, further, that the defendant has proven “beyond a reasonable doubt that [he] had inadequate notice of what was prohibited . . . .” (Internal quotation marks omitted.) Id. For the reasons set forth in this opinion, neither the defendant nor Justice Schaller has raised any doubt concerning the constitutionality of the bom alive rule, let alone a doubt so great as to satisfy the beyond a reasonable doubt standard.
We note that the state had conceded that Miranda’s assault convictions “were premised on two separate acts of omission, which led to two, rather than six, discrete injuries.” State v. Miranda, supra, 260 Conn. 96 n. 1. Accordingly, we remanded the case to the Appellate Court with direction to affirm the trial court’s judgment with respect to the risk of injury count and with respect to two of the six counts of assault in the first degree. Id., 127; see id., 132.
This court ultimately concluded, in a subsequent decision, that Miranda’s assault convictions could not stand because we incorrectly had construed our assault statute as encompassing the conduct at issue. See State v. Miranda, supra, 274 Conn. 734. Our determination in that regard, however, has no bearing on our prior conclusion that applying the assault statute to Miranda’s conduct did not violate due process principles of fair notice.
Justice SchaUer asserts that we have misconstrued the defendant’s due process claim, apparently because, in his view, we “[do] not address the [defendant’s] vagueness claim directly but, instead, [characterize] the defendant’s due process argument as invoking only the retroactivity doctrine.” Footnote 13 of Justice Schaller’s concurring and dissenting opinion. Justice Schaller’s criticism is misplaced. Both aspects of the defendant’s due process claim are founded on the contention that the defendant did not have fair notice of the applicability of the bom alive rule, a contention that, as we have explained, is defeated by the fact that application of settled principles of statutory construction leads to the conclusion that the rule is embodied in our murder statute and has been embodied in that statute since the adoption of the Penal Code. In other words, to the extent that the defendant’s claim is predicated both on the vagueness doctrine and on the constitutional bar against the retroactive application of an allegedly unforeseeable statutory interpretation, his claim founders on our determination that the murder statute, fairly construed, prohibits the killing of a fetus that is bom alive and that subsequently dies from injuries sustained in útero.
As this court previously has observed, dictum is “an observation or remark made by a judge in pronouncing an opinion upon a cause, concerning some rule, principle, or application of law, or the solution of a question suggested by the case at bar, but not necessarily involved in the case or essential to its determination . . . [or] any statement of the law enunciated by the court merely by way of illustration, argument, analogy, or suggestion. Statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case ... are obiter dicta, and lack the force of an adjudication.” (Internal quotation marks omitted.) DeSena v. Waterbury, 249 Conn. 63, 78 n.16, 731 A.2d 733 (1999), quoting Black’s Law Dictionary (6th Ed. 1990).
We note that Justice Zarella also seeks to minimize the precedential import and value of Anonymous. For the reasons that follow, we also reject Justice Zarella’s assessment of that case.
These cases are: Keeler v. Superior Court, 2 Cal. 3d 619, 625-31, 470 P.2d 617, 87 Cal. Rptr. 481 (1970); State v. Gonzalez, 467 So. 2d 723, 725-26 (Fla. App.), review denied, 476 So. 2d 675 (Fla. 1985); People v. Greer, supra, 79 Ill. 2d 111-16; Hollis v. Commonwealth, 652 S.W.2d 61, 62-65 (Ky. 1983), overruled by Commonwealth v. Morris, supra, 142 S.W.3d 654; State v. Brown, 378 So. 2d 916, 917-18 (La. 1979); People v. Guthrie, 97 Mich. App. 226, 229-30, 237-38, 293 N.W.2d 775 (1980), appeal denied, 417 Mich. 1006, 334 N.W.2d 616 (1983); State ex rel. A. W. S., 182 N.J. Super. 278, 279-81, 440 A.2d 1144 (App. Div. 1981); State v. Larsen, 578 P.2d 1280, 1281-82 (Utah 1978); State ex rel. Atkinson v. Wilson, 175 W. Va. 352, 353-54 and n.3, 356-57, 332 S.E.2d 807 (1984).
Of course, notwithstanding Justice Schaller’s contrary suggestion, no such actual notice is necessary to satisfy the fair notice component of due process. As we have explained, unless a judicial decision is “unexpected and indefensible by reference to the law as it then existed”; Rogers v. Tennessee, supra, 532 U.S. 464; or, in other words, represents “a marked and unpredictable departure from prior precedent”; id., 467; the decision will be deemed to comport with due process requirements even if it is one of first impression in a particular jurisdiction. See id., 464-67; see also State v. Miranda, supra, 260 Conn. 109-10. For the reasons that we previously have set forth, our recognition of the bom alive mle hardly constitutes the kind of unforeseeable and unpredictable departure from prior precedent that due process prohibits.
We also note that Justice Schaller, like Justice Zarella, dismisses Swift’s commentary explaining that the bom alive rule was a part of our common law, and had been incoiporated into this state’s murder statute, as early as the late eighteenth century. 2 Z. Swift, A System of the Laws of the State of Connecticut, supra, pp. 298-99; see part II of this opinion. Although Justice Schaller apparently does not dispute the fact that the bom alive rule “was firmly entrenched in the common law generally”; footnote 33 of Justice Schaller’s concurring and dissenting opinion; Justice Schaller asserts that the rule never represented the common law of this state because it was never “explicit[ly] adopt[ed] by the legislature or the courts of this state.” Id. In fact, as Swift explained, the language of the murder statute in effect at the time of his commentary in 1796 indicates that the statute had been drafted “in affirmance of the common law,” which Swift explained incorporated the “bom alive” rule. 2 Z. Swift, A System of the Laws of the State of Connecticut, supra, pp. 298-99. Moreover, Justice Schaller’s assertion that a rule or principle is not to be considered a part of our common law until it has been recognized explicitly by this state’s legislature or courts reflects the same fundamental misunderstanding of the common law as that demonstrated by Justice Zarella in his concurring and dissenting opinion. See footnote 39 of this opinion. Indeed, as we have explained, the position espoused by Justices Zarella and Schaller cannot be squared with the principle that due process is not violated simply because the issue presented represents a matter of first impression.
As we previously explained, the assault of a pregnant woman that results in the termination of her pregnancy is a class A felony punishable by not less than ten years and not more than twenty-five years imprisonment; P.A. 03-21; see General Statutes § 53a-35a (4); whereas murder, although also a class A felony, is punishable by a term of imprisonment of not less than
Justice Schaller suggests that it is unfair and, indeed, bizarre, to treat a defendant more harshly because an injured fetus responds to “eleventh hour” medical care and is bom alive, only to succumb thereafter to its prenatal injuries. Part I A and footnote 3 of Justice Schaller’s concurring and dissenting opinion. We strongly disagree. When, as in the present case, a defendant brutally and repeatedly stabs a woman who is eight and one-half months pregnant in the chest and abdomen and then leaves her to die, it is readily foreseeable both that she and her unborn child will be seriously, if not fatally, injured, and that every possible effort will be made to save the mother and her unborn child when medical help becomes available. Fundamental fairness is readily satisfied by the foreseeability of medical intervention, and it therefore is perfectly reasonable for the defendant, who sets this horrific chain of events in motion, to assume the risk that his conduct will be punished more or less severely depending on the extent to which any medical intervention is successful.
Justice Schaller also asserts that it violates principles of due process to apply the born alive rule in the present case, and thereby to hold the defendant criminally responsible for Antonia’s death because, in 1998, it was not a crime at all to kill a fetus in útero. Specifically, Justice Schaller argues that due process bars the retroactive application of the doctrine of transferred intent in a situation in which, as in the present case, “criminal intent
Contrary to Justice Schaller’s assertion, we do not rely on the legislative history of P. A. 03-21 for the purpose of resolving the defendant’s due process claim. We consider that legislative history only insofar as it evinces the intent of the legislature to recognize the bom alive rule. The defendant’s due process claim fails because our recognition of the rule — an action that we take because it is apparent that it reflects the intent of the legislature—
It is well established that a live birth is an essential element that the state must prove beyond a reasonable doubt. E.g., People v. Bolar, supra, 109 Ill. App. 3d 389; People v. Selwa, 214 Mich. App. 451, 469, 543 N.W.2d 321 (1995), appeal denied, 453 Mich. 934, 557 N.W.2d 307 (1996); State v. Elliott, 308 Mont. 227, 240, 43 P.3d 279 (2002); Bennett v. State, 377 P.2d 634, 635 (Wyo. 1963). “When the evidence that the child was bom alive is susceptible of doubt, a conviction can not be sustained.” (Internal quotation marks omitted.) Commonwealth v. Morris, supra, 142 S.W.3d 657. Whether a fetus has been bom alive is an issue to be decided by the finder of fact. See, e.g., Duncan v. Flynn, 342 So. 2d 123, 124 (Fla. App. 1977), affd, 358 So. 2d 178 (Fla. 1978); State v. Elliott, supra, 234; Bennett v. State, supra, 636.
Section 1 of the Uniform Determination of Death Act of 1980 provides: “An individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead. A determination of death must be made in accordance with accepted medical standards.” Unif. Determination of Death Act § 1, 12A U.L.A. 781 (2008). Thus, under the act, death can be established in one of two ways.
The state further maintains that, “from both a medical and legal standpoint, the question of when life begins is not the same as the question of when life ends. . . .
*757 “For purposes of the criminal law, ‘brain death’ provides a workable standard for establishing causation — i.e., to prove that the victim of an assault has in fact died — thereby ensuring (1) that the [perpetrator] will not escape punishment for homicide, and (2) that the medical professional who [withdraws] life support will not be subject to criminal liability. Conversely, requiring the state to prove that a baby such as Antonia was not ‘brain dead’ at the moment of birth would be unworkable because such a requirement would make it far more difficult to establish homicide and, consequently, far more likely that the person who injured the baby could not be held accountable for causing her death.”
In response to defense counsel’s argument, the state’s attorney asserted that the evidence established that Antonia had lived for four to five hours following her removal from life support and that Carver, the medical examiner who performed Antonia’s autopsy, ruled that her death was a homicide.
The panel denied the motion for a judgment of acquittal but did not elaborate on its reasons for doing so. Presumably, however, the panel relied
In the present case, the fact finder was a three judge panel. This case is no different, however, from a case in which the fact finder is a jury; in the former case, the panel applies the law that it deems applicable, whereas, in the latter, the jury applies the law as instructed by the court. The remedy for the legal impropriety, however, is the same in either case, namely, a new trial. See State v. DeJesus, supra, 288 Conn. 434. “As the United States Supreme Court observed in Burks v. United States, 437 U.S. 1, 15, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process [that] is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the [defendant] has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished.” (Internal quotation marks omitted.) State v. DeJesus, supra, 434-35.
In State v. Padua, 273 Conn. 138, 177, 869 A.2d 192 (2005), one of the defendants, Miranda Virgilia Cálvente, claimed that the double jeopardy clause of the United States constitution required the Appellate Court to consider her claim of evidentiary insufficiency before remanding the case to the trial court after reversing the trial court’s judgment on the ground of instructional error. We elected not to address Calvente’s constitutional claim and, instead, imposed the same requirement, for prudential reasons, pursuant to our inherent supervisory authority over the administration of justice. Id., 178. We stated that “[ijnterests of judicial efficiency, sound appellate policy and fundamental fairness require a reviewing court to address a defendant’s insufficiency of the evidence claim prior to remanding a matter for retrial because of trial error.” Id. We note that, although the United States Supreme Court has not yet addressed this precise issue, most federal courts that have considered this issue have concluded that the double jeopardy clause is not implicated when a reviewing court fails to consider a defendant’s claim of evidentiary insufficiency prior to reversing the trial court’s judgment on the ground of trial error and remanding the case for a new trial. See, e.g., Foxworth, v. Maloney, 515 F.3d 1, 4 (1st Cir. 2008) (“we do not hold that the [djouble [j]eopardy [cjlause compels the review of a properly preserved insufficiency claim before the petitioner is retried” [emphasis in original]); United States v. Adkinson, 135 F.3d 1363, 1379 n.48 (11th Cir. 1998) (consideration of insufficiency claim before remand for trial error “not mandated by the double jeopardy clause”); United States v. Miller, 952 F.2d 866, 874 (5th Cir.) (same), cert. denied sub nom. Huls v. United States, 505 U.S. 1220, 112 S. Ct. 3029,120 L. Ed. 2d 900 (1992); United States v. Douglas, 874 F.2d 1145, 1150 (7th Cir.) (“we are not convinced . . . that the [d]ouble [¡Jeopardy [cjlause compels an appellate court to review the sufficiency of the evidence offered at trial anytime a defendant raises the question”), cert. denied sub nom. Pruitt v. United States, 493 U.S. 841, 110 S. Ct. 126, 107 L. Ed. 2d 87 (1989). But see United States v. Bibbero, 749 F.2d 581, 585 (9th Cir. 1984) (“[e]ven though we reverse on procedural grounds, double jeopardy principles require us to consider” defendant’s insufficiency claim), cert. denied, 471 U.S. 1103, 105 S. Ct. 2330, 85 L. Ed. 2d 847 (1985). Nevertheless, in accordance with Padua, we address the defendant’s unpreserved claim of evidentiary insufficiency before consider
We note that the foregoing passage from the court’s decision was taken almost verbatim from State v. Anderson, supra, 135 N.J. Super. 428-29.
The state also elicited testimony from Antonio Joseph, Antonia’s father. Joseph testified that he and other members of his family had held Antonia after she was removed from life support and that she did not die until four to five hours thereafter. Joseph, however, did not explain the basis for his conclusion that Antonia was alive for that four or five hour period.
It is important to underscore that, at trial, the defendant never claimed that Antonia was not born alive. His only claim relative to the issue of whether Antonia had been bom alive was that the bom alive rule was not applicable, both because it was not embodied in our law and that, even if it was, applying it in the present case violated his right to fair notice.
The defendant cites Keeler v. Superior Court, supra, 2 Cal. 3d 619, Commonwealth v. Booth, supra, 564 Pa. 228, State v. Horne, supra, 282 S.C. 444, and Morgan v. State, 148 Term. 417, 256 S.W. 433 (1923). Keeler, Booth and Home did not involve the question of what evidence is required to prove a live birth because, in each of those cases, it was undisputed that
There is no evidence in the record that Antonia breathed or had a heartbeat prior to being placed on life support. To the contrary, Palmer, the only person to testify with respect to this time frame, explained that Antonia was not breathing and that he did not know whether her heart was beating when he transferred her to the pediatric staff immediately after he delivered her.
We do not purport to create a standard for determining brain death; rather, such a standard should be established, for purposes of the present case, at the defendant’s new trial by appropriate expert testimony and be in accordance with the standards generally accepted by the medical profession. See State v. Guess, supra, 244 Conn. 774-75, 778.
Of course, the state would be required to prove, through expert, medical testimony, that, because of the nature and duration of any such activity, that activity was, indeed, inconsistent with brain death.
We note that Justice Schaller, in his concurring and dissenting opinion, asserts that the defendant is entitled to a judgment of acquittal due to evidentiary insufficiency. In support of this claim, Justice Schaller contends that, if the defendant should have known, for due process purposes, that he could be prosecuted for killing Antonia, as we have concluded, then it is only fair to bar the state, which, according to Justice Schaller, should have known of the applicability of Guess to the present case, from retrying the defendant for Antonia’s death because the state did not adduce evidence sufficient to satisfy that test. Justice Schaller further asserts that a contrary conclusion would violate the defendant’s double jeopardy rights.
Justice Schaller provides no legal support for either contention because his argument, which appears to seek a sort of rough justice, is truly unprecedented. It is perfectly clear that the issue of whether the defendant had fair notice of the bom alive rule has nothing to do with the issue of whether the state should be barred from retrying the defendant for Antonia’s murder on the ground of evidentiary insufficiency; thus, Justice Schaller’s assertion that “constitutionally required fundamental fairness” somehow justifies their linkage lacks any basis in law or logic. As we explained, the evidence that the state adduced was sufficient under the test that the panel actually did apply; that is all that is necessary to permit the retrial of the defendant. Moreover, although we disagree with Justice Schaller’s assertion that Guess is so clearly relevant to the present case, even if we agreed with Justice Schaller on that point, the state was not alone in failing to recognize the relevance of Guess; neither the defendant nor the panel recognized it either. It therefore would be manifestly unreasonable and unfair to penalize the state for the reason and in the manner advocated by Justice Schaller. In short, the approach that Justice Schaller urges has no foundation in the law and no place in this case.
Although we have concluded that the defendant is entitled to a new trial on the capital felony charges, we address the defendant’s claim of evidentiary insufficiency with respect to the penalty phase hearing because a finding that the evidence was insufficient to impose a sentence of death would preclude the imposition of the death penalty on retrial. See footnote 93 of this opinion.
The two statutory mitigating factors were, first, that the defendant’s mental capacity was significantly impaired but not so impaired as to constitute a defense to prosecution; see General Statutes (Rev. to 1997) § 53a-46a (h) (2); and second, that he could not reasonably have foreseen that his conduct in the course of the commission of the offense of which he was convicted would cause, or would create a grave risk of causing, death to another person, that is, Antonia. See General Statutes (Rev. to 1997) § 53a-46a (h) (4). The jury concluded that the defendant did not prove either of the two statutory mitigating factors by a preponderance of the evidence. Of course, if the jury had concluded that the defendant had proved either statutory mitigating factor, the defendant would have been ineligible to receive a death sentence. See General Statutes (Rev. to 1997) § 53a-46a (h). The defendant, however, raises no express claim that the jury reasonably could not have rejected his two alleged statutory mitigating factors.
There are a number of states that engage in appellate review of the jury’s decision with respect to the weighing of aggravating and mitigating
The defendant also contends that the imposition of the death penalty in the present case was, inter alia, arbitrary and disproportionate. We reject this claim for the same essential reasons that we conclude that the evidence was sufficient to support the imposition of the death penalty under our capital sentencing scheme.
Concurring Opinion
concurring. Although many of the considerations and principles on which Justice Zarella relies in his concurring and dissenting opinion have strong appeal, both on their merits and because he reaches a result that would not expose the defendant to the death penalty, ultimately, I cannot overcome the anomalous result that his and Justice Schaller’s concurring and dissenting opinions yield — a statutory scheme that makes an assault on a woman that results in the death of a fetus a class A felony under General Statutes § 53a-59c, but imposes no enhanced penalty when the assault on the pregnant woman results in a live birth and the fetus subsequently dies as a result of the assault. Therefore, I join the majority opinion in its recognition of the bom alive rule as a part of our common law.
Although I agree with the majority opinion insofar as the resolution of the issues it does decide, I disagree with its decision not to address additional claims related to the penalty phase of the proceedings that are likely to arise again at a subsequent penalty phase proceeding
Accordingly, I respectfully concur.
Such claims include whether: (1) the trial court improperly excluded certain of the defendant’s mitigation evidence, including a statement by the defendant expressing remorse for the offense, evidence regarding the reasons for the Waterbmy police department’s policy against electronically recording confessions, and evidence related to “the insidious allure and unyielding grasp of crack cocaine”; (2) this court should conclude, either under the state constitution or pursuant to the exercise of our supervisory authority, that law enforcement officials may not testily at a penalty phase hearing in a capital case that the defendant did not show remorse when confessing to the offense if those officials failed to record by videotape or audiotape the confession; (3) defense counsel should be permitted to review a sealed record to determine if that record contains exculpatory material, or in the alternative, whether this court should perform such a review; and (4) the defendant was entitled to a pretrial hearing to determine whether the state’s allegation that the murder was committed in an especially heinous, cruel, or depraved manner was supported by probable cause.
For example, the defendant claims that the trial court improperly denied his motion to bar the imposition of the death penalty because the decision by the state’s attorney to seek the death penalty was based on the race of the victims in violation of the defendant’s state and federal constitutional rights as evidenced by statements allegedly made by the state’s attorney to defense counsel.
Concurring in Part
concurring in part and dissenting in part. I agree with the majority’s decision in part I of its opinion that the trial court properly denied the motion of the defendant, Robert Courchesne, to suppress his written confessions and other evidence connecting him with the murder of Demetris Rodgers (Rodgers). I disagree, however, with respect to the majority’s conclusions in parts II through V of its opinion concluding that the bom alive rule is embodied in our Penal Code and that the defendant had fair notice that the rule would apply to his conduct, construing the doctrine of transferred intent in novel fashion, and remanding the case for a new trial, at which the state will have another
I emphasize at the outset that in 1998, at the time of the events underlying the defendant’s convictions, the termination of a pregnancy in útero resulting from an assault was not an independent criminal act, as to either the fetus or the mother.
A
As the majority observes, to be eligible for the death penalty pursuant to § 53a-54b (8) and (9), the defendant must have been responsible for the death of two or more “persons” or the death of a “person” under sixteen years of age, respectively. See footnote 2 of this concurring and dissenting opinion. The issue of whether the defendant had notice and fair warning that the eleventh hour, emergency cesarean section delivery resulting in the “birth” and subsequent “death” of Antonia would transform the noncriminal act of an assault upon a fetus in útero into a second act of murder rendering him eligible for the death penalty, therefore, turns primarily on whether the legislature’s use of the word “person” in our criminal statutes made it sufficiently clear to the defendant that his actions could lead to an additional criminal prosecution, i.e., prosecution beyond that for the murder of Rodgers.
“There are three related manifestations of the fair warning requirement. First, the vagueness doctrine bars enforcement of ‘a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” United States v. Lanier, 520 U.S. 259, 266, 117 S. Ct. 1219, 137 L. Ed. 2d 432 (1997). “[T]he void for vagueness doctrine embodies two central precepts: the right to fair warning of the effect of a governing statute . . . and the guarantee against standardless law enforcement. ... If the meaning of a statute can be fairly ascertained a statute will not be void for vagueness since [m]any statutes will have some inherent vagueness, for [i]n most English words and phrases there lurk uncertainties. . . . References to judicial opinions involving the statute, the common law, legal dictionaries, or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.”
“Second, as a sort of ‘junior version of the vagueness doctrine,’ H. Packer, The Limits of the Criminal Sanction [(1968) p. 95], the canon of strict construction of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” United States v. Lanier, supra, 520 U.S. 266. “Courts must avoid imposing criminal liability where the legislature has not expressly so intended.” (Emphasis added.) State v. Breton, 212 Conn. 258, 268-69, 562 A.2d 1060 (1989). Accordingly, ‘‘[c]rimina! statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” (Internal quotation marks omitted.) State v. Jones, 234 Conn. 324, 340, 662 A.2d 1199 (1995); see also State v. Brown, 235 Conn. 502, 517, 668 A.2d 1288 (1995); State v. Hinton, 227 Conn. 301, 317, 630 A.2d 593 (1993). Strict construction of criminal statutes is particularly apt within the context of a capital felony case in light of the unparalleled severity and irreversible nature of the penalty.
“Third, although clarity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute . . . due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope . . . .” (Citations omitted.) United States v. Lanier, supra, 520 U.S. 266. “If a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, it must not be given retroactive effect.”*
No concrete guidelines are prescribed for courts seeking to make a substantive determination about whether a statute is vague, or whether a new interpretation of a statute is unexpected or indefensible with reference to previously stated law. See Ortiz v. N.Y.S. Parole in Bronx, N.Y., 586 F.3d 149, 157 (2d Cir. 2009) (“[t]he due process right to fair notice is a . . . general rule of law that demandfs] a substantial element of judgment . . . and can hardly be implemented . . . mechanically” [internal quotation marks omitted]); see also 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 2.3 (a), p. 146 (“[t]here is no simple litmus-paper test for determining whether a criminal statute is void for vagueness”). In either due process guise, however, “the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant’s conduct was criminal.” (Emphasis added.) United States v. Lanier, supra, 520 U.S. 267.
In his motion to dismiss the charge of murder as to Antonia, the defendant argued both that Antonia was “not a person, as defined by . . . [General Statutes]
Beginning with the statutory language, the most obvious source of fair warning as to what conduct is proscribed within a jurisdiction, § 53a-3 (1) defines a “ ‘[p]erson,’ ” in relevant part, as “a human being
By contrast, our General Assembly’s conspicuous omission of the phrase, “who has been bom and is alive,” from Connecticut’s statutory definition of “person” strongly suggests a conscious legislative choice not to adopt the bom alive rule. State v. Miranda, 274 Conn. 727, 761-62, 878 A.2d 1118 (2005) (Vertefeuille, J., concurring) (interpreting legislature’s failure to adopt Model Penal Code definition of “conduct” as rejection of notion, included in that code, that conduct encompasses both positive acts and failures to act); see also Commonwealth v. Chretien, 383 Mass. 123, 132-33, 417 N.E.2d 1203 (1981) (interpreting omission of term “unlawful” from statutory definition as abandonment of common-law spousal exception to sexual assault). At the very least, with respect to notice and fair warning concerns, if a defendant were inclined to engage in a statutory comparison, it would be wholly reasonable for him to conclude, on the basis of the legislature’s decision not to incorporate the language of the bom alive rule when defining “person,” that the legislature in fact had not intended to adopt that rule. “The underlying principle [of fair notice] is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed. ” United States v. Harriss, supra, 347 U.S. 617.
I acknowledge that a comment to the Model Penal Code suggests that a jurisdiction need not expressly incorporate the bom alive rule into its statutes for the
In addition to the fact that our legislature, in promulgating the Penal Code, did not expressly adopt the bom alive rule and, therefore, did not provide notice of that rule to the defendant, the history of our jurisprudence similarly fails to demonstrate that this archaic rule ever entered Connecticut’s common law. In fact, the majority opinion has the distinction of being the first appellate court decision in Connecticut ever to rely on the bom alive rule.
In fact, when considering whether prior judicial constructions of state statutes have provided sufficient clarification to save those statutes from vagueness challenges, the United States Supreme Court typically
Nonetheless, the majority quotes, at length, various speakers who testified at the public hearings concerning § 53a-59c as if that testimony constituted binding authority regarding the state of the law in Connecticut in 1998. Reliance on this irrelevant source, however, leads the majority to make a series of forward looking, then backward applying arguments, all of which confuse the due process analysis. For example, the majority rejects the defendant’s contention that he should not
Pared to its core, the majority’s conclusion that the defendant had notice and fair warning of the bom alive rule as the established law in Connecticut which, in the present context, transformed noncriminal conduct into an offense eligible for the death penalty, is based on dicta from one Superior Court criminal decision, two Superior Court civil cases addressing tort law, a Connecticut treatise
“Finally, and perhaps most importantly,” according to the United States Supreme Court, “at the time of [the defendant’s] crime the year and a day rule had only the most tenuous foothold as part of the criminal law
As was the case with the year and a day rule at issue in Rogers, the bom alive rule appears nowhere in Connecticut’s criminal statutes. Moreover, also similarly to the year and a day rule at issue in Rogers, in fact even more so, the bom alive rule has virtually no presence in the entire history of reported Connecticut jurisprudence.
B
I recognize that a conviction of murder on the basis of the doctrine of transferred intent may form the predicate for a conviction under our capital felony statute. State v. Higgins, 265 Conn. 35, 50, 826 A.2d 1126 (2003). In Higgins, we also stated, however, that “because this case does not involve the death penalty,
In State v. Higgins, supra, 265 Conn. 59, we explained that “the weight of authority supports the proposition that the common-law doctrine of transferred intent may be applied when the defendant’s actual mental state and wrongful conduct are equivalent to the mental state and wrongful conduct that must be proved under the offense with which he is charged . . . .” (Emphasis added.) In that case, the defendant had intended to kill an adult but, instead, had killed a thirteen year old child. Id., 40. Although the lone murder of an adult would not have implicated the death penalty, the resultant death of a person under sixteen years of age constituted a crime eligible for the death penalty. See id., 37 n.2; General Statutes (Rev. to 2003) § 53a-54b (8). We concluded that the doctrine of transferred intent could support the application of the death penalty because the mental state and wrongful conduct necessary to murder a child were equivalent to the defendant’s actual intent and actions as directed toward the intended adult victim. See State v. Higgins, supra, 59-60.
In the present case, however, we are not concerned with the transfer of the intent to kill an adult to a child, but rather, with the transfer of the intent to Mil an adult to what, at the time of the defendant’s act, was an unborn fetus, in other words, to an entity that was not considered a “person” under our law. Accordingly, the equivalence of mental state and wrongful conduct is lacking. As I noted previously in this opinion, at the time of the conduct underlying the defendant’s convictions,
Indeed, even in cases in which courts have applied the doctrine of transferred intent to the death of a fetus, the defendant’s underlying conduct carried with it criminally equivalent culpability. For example, in State v. Merrill, 450 N.W.2d 318, 323 (Minn.), cert. denied, 496 U.S. 931, 110 S. Ct. 2633, 110 L. Ed. 2d 653 (1990), the Minnesota Supreme Court held that the defendant’s intent to kill a pregnant mother could be transferred to support a murder charge for the death of the fetus. In that case, however, the critical distinction was that, at the time of the defendant’s conduct, Minnesota recognized that an independent act that resulted in the death of a fetus constituted either first or second degree murder.
As the majority has acknowledged, “[i]f a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, [the construction] must not be given retroactive effect.” (Emphasis added; internal quotation marks omitted.) Bouie v. Columbia, supra, 378 U.S. 354. As I discussed in part I A of this concurring and dissenting opinion, on the basis of our law as it was expressed prior to the defendant’s conduct, the defendant did not have notice and fair warning regarding the potential application of the bom alive mle. The majority further compounds that problem of lack of notice through the application of a second legal fiction, the doctrine of transferred intent,
II
Even assuming that retroactive application of the newly recognized bom alive rule to this case is constitutionally proper, a conclusion with which I disagree, I nevertheless would reverse the trial court’s judgment convicting the defendant of murder for the “death” of Antonia because the evidence presented at trial was insufficient to establish that she was bom alive. In light of the majority’s conclusion that the defendant had sufficient notice of the potential application of the bom alive rule and its novel construction of the transferred intent doctrine despite the absence of any prior legislative adoption of the bom alive rule and any prior Connecticut case applying either doctrine in such a fashion, it is ironic — and deeply troubling — that the majority also has decided that the state, on the other hand, did not have sufficient notice of the expansion of the common-law definition of death established in State v. Guess, 244 Conn. 761, 764, 772, 780, 715 A.2d 643 (1998). Based on this glaring inconsistent treatment in favor of the state, the majority has ordered a remand of the case for a new trial — essentially, to give the state a second opportunity to attempt to prove that Antonia
It cannot be disputed that the requirement was reasonably foreseeable as a result of our expansion of the common-law definition of death in Guess, which was published several months prior to the defendant’s trial. As a result of our decision in Guess, the state clearly was on notice that, pursuant to our expanded definition of death, to sustain a conviction under the bom alive rale, the state would have to disprove beyond a reasonable doubt both that, at the time of her birth, Antonia had not suffered an irreversible cessation of her circulatory and respiratory systems and that she had not suffered an irreversible cessation of brain activity. See id. Because the state failed to disprove that Antonia did not suffer an irreversible cessation of brain activity, the evidence was insufficient for the fact finder to conclude that Antonia was “alive” at the time of her birth and, therefore, the evidence was insufficient to prove that Antonia was a “person” under the bom alive rule. The majority’s conclusion that the state is entitled to retry the defendant results in a denial of the defendant’s right to be free from double jeopardy. See Burks v. United States, 437 U.S. 1, 18, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978).
It is beyond question that the state was fully on notice of the foreseeable impact of Guess on a death penalty prosecution involving the bom alive rule. The opening paragraph in Guess leaves no doubt as to what that case was about: “The sole issue on appeal is whether the term ‘death,’ as used in the Penal Code, may be construed to embrace a determination, made according to accepted medical standards, that a person has suffered an irreversible cessation of all brain functions.” State v. Guess, supra, 244 Conn. 762. As the majority points out, prior to Guess, the common law defined
In a case in which the defendant has been sentenced to death, it is simply too much to bear to expect the defendant to be familiar with the eighteenth century works of Zephaniah Swift, extrajurisdictional precedent and the unexpressed intent of our legislature to adopt a common-law definition, yet, at the same time, to excuse the state’s ignorance or disregard of a pertinent and contemporaneous state Supreme Court decision from this jurisdiction.
I disagree emphatically with the majority’s characterization of my argument as advocating for unwarranted penalizing of the state, apparently aimed at evening some unexplained score. What the majority cursorily
In short, in a criminal prosecution, the burden is upon the state to present its case-in-chief and prove all the elements of the charged crimes. It is not incumbent upon the defendant, or upon the trial court, to instruct the state on how to try its case. By failing to prove definitively that Antonia had not suffered an irreversible cessation of brain function at the time of her “birth,” the state ran the risk that its evidence would be insufficient to show that Antonia was a person for purposes of the bom alive rule. The remedy for the failure to present sufficient evidence at trial is a judgment of acquittal on all related charges. Burks v. United States, supra, 437 U.S. 11, 18. In remanding the case for a new trial, the majority improperly provides the state with a second opportunity to prove its case, ostensibly to protect the defendant’s rights. Instead, I would order a
In sum, the majority’s newfound recognition of the bom alive rule, which is not clearly embodied in our murder statutes, and its application of the doctrine of transferred intent to the present circumstances are unexpected and indefensible by reference to Connecticut law as it existed at the time of the defendant’s offenses. Accordingly, retroactive application of the majority’s legal conclusions to uphold the defendant’s convictions is a violation of due process. Furthermore, because the state failed to present sufficient evidence to prove that Antonia was bom “alive” pursuant to the definition of that term established by State v. Guess, supra, 244 Conn. 764, the defendant’s right to be free from double jeopardy also has been violated. On the basis of the foregoing, I respectfully dissent.
The act against a fetus is to be distinguished from the underlying assault on its mother that results in the termination of a pregnancy. In 2003, five years after the underlying events in the present case, the legislature enacted General Statutes § 53a-59c, which criminalized as a class A felony the assault of a pregnant woman when the “assault results in the termination of pregnancy that does not result in a live birth.” General Statutes § 53a-59c (a) (2). To date, the legislature has yet to adopt a statute recognizing a fetus itself as a potential “victim” of assault.
Pursuant to General Statutes (Rev. to 1997) § 53a-54b, “[a] person is guilty of a capital felony who is convicted of any of the following ... (8) murder of two or more persons at the same time or in the course of a single transaction; or (9) murder of a person under sixteen years of age.” Pursuant to General Statutes § 53a-54a (a), “[a] person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person . . . .”
I recognize that medical intervention generally may be expected to follow an assault and that, in certain instances, such intervention can affect the degree of criminality of particular conduct. For example, a defendant may be charged with attempted murder instead of murder only because of the fortuity of timely and successful medical intervention. In the present case, however, successful medical intervention resulted in the defendant being subject to harsher, rather than lesser, criminal penalties. Such a result is, in my opinion, thoroughly bizarre and, accordingly, could not reasonably have been expected by the defendant or any other resident of Connecticut.
Because, in light of the resolution of this appeal, the issue of whether Antonia ever was “alive” remains open, I place the terms “birth” and “death” in quotation marks.
Simply put, the combined effect of unforeseeable events and a novel interpretation of our murder statutes as applied to those events has transformed the death of a fetus in útero, which at the time of the defendant’s assault of Rodgers was a noncriminal act, into an offense eligible for the death penalty. Compare Chapman v. United States, 500 U.S. 453, 467-68, 111 S. Ct. 1919, 114 L. Ed. 2d 524 (noting, in rejecting due process claim, that “whatever debate there is [over meaning of statute] would center around the appropriate sentence, and not the criminality of the conduct”), reh. denied, 501 U.S. 1270, 112 S. Ct. 17, 115 L. Ed. 2d 1101 (1991), superseded by statute on other grounds as stated in United States v. Clark, 110 F.3d 15 (6th Cir. 1997); Knutson v. Brewer, 619 F.2d 747, 750 (8th Cir. 1980) (rejecting argument that defendant had due process right to expect to be convicted of lesser crime only, finding it “significant that the issue of construction involved here is not the drawing of a line between legal conduct and illegal conduct”); State v. Payne, 240 Conn. 766, 779, 695 A.2d 525 (1997) (rejecting due process claim when “defendant has made no plausible argument, nor can we conceive of one, that 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”), overruled in part on other grounds by State v. Romero, 269 Conn. 481, 490, 849 A.2d 760 (2004); J. Jeffries, “Legality, Vagueness, and the Construction of Penal Statutes,” 71 Va. L. Rev. 189,196 (1985) (among “factors considered in the vagueness inquiry . . . [is] whether the uncertainty affects the fact or merely the grade of criminal liability”).
In rejecting the defendant’s due process claim, the majority, employing inflammatory language designed to evoke sympathy, twice confuses the analysis by conflating the question of whether the defendant knew that killing Rodgers was a criminal act with the question of whether he had
Because the evidence was insufficient to convict and, therefore, the proper remedy is a judgment of acquittal, the majority’s remand of the case
If the “death” of Antonia qualifies as the “murder of a person under sixteen years of age” pursuant to subdivision (9) of General Statutes (Rev. to 1997) § 53a-54b, it necessarily follows that it also qualifies as a second murder pursuant to subdivision (8). I review the law, therefore, with an eye toward determining whether the defendant’s conviction for the alleged murder of Antonia could stand on its own pursuant to subdivision (9).
Although I acknowledge that some degree of reliance on secondary legal resources as interpretive aids may be appropriate when determining whether a statute is unconstitutionally vague, I disagree with the extent of the majority’s use of such materials in this death penalty case, particularly in light of the complete dearth of support for the majority’s conclusion in the most relevant places, i.e., the statutory language, legislative history, other Connecticut statutes or authoritative Connecticut jurisprudence existing in 1998. It is not so much the majority’s methodology of using the ordinary tools of
Indeed, the rule of strict construction of criminal statutes originated within the context of capital punishment, in recognition of the severity of that punishment. See 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 2.2 (d), pp. 123-24.
“No doubt some criminal statutes deserve a stricter construction than others. Other things being equal, felony statutes should be construed more strictly than misdemeanor statutes; those with severe punishments more than those with lighter penalties; those involving morally bad conduct more than those involving conduct not so bad; those involving conduct with drastic public consequences more than those whose consequences to the public are less terrible; those carelessly drafted more than those done carefully.” 1 W. LaFave, Substantive Criminal Law (2d Ed. 2003) § 2.2 (d), p. 126. This case presents most, if not all, of the foregoing hallmarks counseling stricter construction in favor of the defendant.
This is because “an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as [a]rt. I, § 10, of the [constitution forbids. An ex post facto law has been defined by [the United States Supreme Court] as one that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action, or that aggravates a crime, or makes it greater than it was, when committed. ... If a state legislature is barred by the [e]x [p]ost [f]acto [c]lause from passing such a law, it must follow that a [s]tate Supreme Court is barred by the [d]ue [p]rocess [c]lause
In analyzing the claim, the trial court cited to state and federal vagueness jurisprudence.
The trial court also rejected the defendant’s retroactivity claim. Specifically, the court disagreed that prosecution of the defendant for the murder of Antonia in reliance on the bom alive rule was an impermissible retroactive application of a novel judicial constmction because “the rule [that] applies to establish the defendant’s liability was not created after he acted. That
On appeal, although the defendant continues to press both vagueness and retroactivity claims, the majority opinion, while at times reciting vagueness principles, does not address the vagueness claim directly but, instead, characterizes the defendant’s due process argument as invoking only the retroactivity doctrine. The majority proceeds to rely heavily on cases that involved that doctrine, i.e., cases in which the court openly acknowledged that the decision involved a change in the law. It is, therefore, unclear whether the majority: (1) agrees with the trial court that the statutes, as previously construed in Anonymous, are not vague and that they clearly incorporate the bom alive rule, but that this court nevertheless is changing the law by adopting a novel construction of the statutory language for the first time today; (2) concludes, contrary to the trial court, that the statutes are vague as to whether the bom alive rule was incorporated, but that any vagueness may be cured by retroactive judicial construction that is neither unexpected or indefensible with reference to the same preexisting law that was insufficient to defeat the vagueness claim; or (3) concludes, contrary to the trial court, that the statutes are not vague and do not incorporate the bom alive rule, but that this court retroactively may enlarge the scope of the statutory definition of “person” to include the rule because such construction is not unexpected or indefensible with reference to previously stated law. In light of the fundamental confusion that confounds the majority’s position, evidenced by the amalgamation of vagueness and retroactivity principles that permeates its due process analysis, it is ironic that the majority criticizes my understanding of well established due process jurisprudence.
The majority’s approach is problematic, regardless of which of the foregoing paths it has chosen. As to the first option, if, as the trial court found, the statutes are unambiguous and clearly incorporated the bom alive rule, there simply is no occasion for this court to decide whether it improperly is applying retroactively a novel construction of those statutes. See Ortiz v. N.Y.S. Parole in Bronx, N.Y., supra, 586 F.3d 158 (because “case does not involve any expansion in the scope of criminal liability beyond that indicated by previous decisional law,” federal court “need not consider whether the New York courts have worked an impermissible retroactive change in the law, violating due process by adopting anew judicial interpretation that was ‘unexpected and indefensible’ by reference to what courts had said before,” but need only determine whether, as state court held, statute itself provided fair warning [emphasis in original]); Dale v. Haeberlin, 878 F.2d 930, 932 (6th Cir. 1989) (“[b]efore determining whether the Kentucky Supreme Court violated the [cjonstitution by retroactively applying an unanticipated change in state law, we must be certain that the opinion . . . actually changed existing Kentucky law”), cert. denied, 494 U.S. 1058, 110 S. Ct. 1528, 108 L. Ed. 2d 767 (1990); compare Rogers v. Tennessee, supra, 532 U.S. 455 (acknowledging that Tennessee Supreme Court’s abolition of year and a day rule represented change from previously articulated law before concluding that change was neither unexpected nor indefensible);
As to the second option, I question whether a statute, once having been found unconstitutionally vague after reference to appropriate interpretative aids, may then be rehabilitated by a retroactive judicial construction that purports to be expected and defensible by reference to those same interpretative aids. “[Wjhere vague statutes are concerned, it has been pointed out that the vice in such an enactment cannot be cured in a given case by a construction in that very case placing valid limits on the statute, for the objection of vagueness is twofold: inadequate guidance to the individual whose conduct is regulated, and inadequate guidance to the triers of fact. The former objection could not be cured retrospectively by a ruling either of the trial court or the appellate court, though it might be cured for the future by an authoritative judicial gloss.” (Emphasis added; internal quotation marks omitted.) Bouie v. Columbia, supra, 378 U.S. 352-53.
As to the third option, I disagree that this court, if it were to conclude that the murder statutes were unambiguous and did not incorporate the bom alive rule, nevertheless could read the rule into the statutes and then apply that construction retroactively. Connecticut is a “code” state that has relegated the defining of crimes exclusively to the legislature. See Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-4 (West 2007), commission comment; see also Vo v. Superior Court, 172 Ariz. 195, 204, 836 P.2d 408 (App. 1992) (noting “[critical] distinction between ‘code states,’ which have abolished common law crimes and provide that no crime can be defined other than by the legislature, and ‘common law states,’ which recognize common law crimes and allow judicial decisions to fashion expanded definitions of crimes”). Although this court may consider the common law for purposes of discerning legislative intent; see Vo v. Superior Court, supra, 204; see also State v. Soto, 378 N.W.2d 625, 627 (Minn. 1985); its authority to adopt or to recognise itself common-law doctrine is limited by the plain language of the code’s savings clause, which is included at the outset of chapter 951 of the General Statutes and 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." (Emphasis added.) General Statutes § 53a-4. Clearly, in light of the savings clause, we are limited to recognizing basic common-law principles of and defenses to criminal liability not incon
In sum, I analyze the defendant’s due process claim within the void for vagueness rubric because the trial court disposed of the claim on that basis, the defendant continues to press a vagueness claim on appeal that cannot simply be bypassed, and the issue presented, at root, is whether the legislature, when promulgating the criminal code, intended to incorporate the bom alive rule into the definition of person and made that clearly known, and not, as the majority’s choice of analytical frameworks suggests, whether this court may newly recognize that rule today and apply it retroactively without offending due process. Accordingly, I disagree with the majority that the present case is a “conventional and foreseeable example of common-law adjudication” to which the holdings of Rogers v. Tennessee, supra, 532 U.S. 451, and State v. Miranda, supra, 260 Conn. 93, are directly applicable. I nevertheless will address those holdings hereinafter because of the majori
Although the murder section of our Penal Code was based in part on the New York Revised Penal Law and the Model Penal Code; see Commission to Revise the Criminal Statutes, Penal Code Comments, Conn. Gen. Stat. Ann. § 53a-54a (West 1971), commission comment; we do not inevitably rely upon provisions of those codes to construe related Connecticut provisions identically. In State v. Ross, 230 Conn. 183, 197-99, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), for example, this court declined to adopt wholesale the Model Penal Code’s principles of extraterritorial jurisdiction where those principles had not been incorporated explicitly into Connecticut’s code. Moreover, “[a]s this court has noted, [even where there is] similarity of language existing between the New York and Connecticut Penal Codes, [such] does not compel a like construction.” State v. Mastropetre, 175 Conn. 512, 522, 400 A.2d 276 (1978). Here, however, despite the varying approaches, the defendant was effectively charged with predicting that, as to defining who may be the victim of a homicide, the trial court would conclude that the legislature, although it declined to adopt the Model Penal Code approach explicitly, nevertheless intended to adopt it.
Following this language is a citation to a footnote in a criminal law treatise “and the authorities cited therein.” 2 Model Penal Code, supra, § 210.1, comment 4 (c), p. 11 n.22. That treatise, in turn, cites to the portion of Blackstone’s Commentaries discussing the bom alive rule. See E. Perkins, Criminal Law (2d Ed. 1969) p. 29 n.10.
The majority recites often quoted language from decisions of the United States Supreme Court explaining that the vagueness doctrine “is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into
The majority’s answer to this point is weak, almost to the point of warranting no response. Essentially, the majority asserts that, although the Model Penal Code definition mirrors the bom alive rule and the accompanying commentary, which cites to material discussing the bom alive rule, explains that “[t]he effect of this language is to continue the common-law rule limiting criminal homicide to the killing of one who has been bom alive,” it nevertheless is not clear whether the drafters of the Model Penal Code intended to incorporate the bom alive rule, although a number of courts, including the trial court, have concluded precisely the opposite. In any event, according to the majority, the differences between the relevant provisions are unimportant because our legislature’s intent is clearly evidenced by the opinion of the Model Penal Code drafters that our statute, although silent on the point, “may be expected to carry forward the common-law approach”; 2 Model Penal Code, supra, § 210.1, comment 4 (c), p. 11; or, alternatively, by a treatise author’s general musings as to what “courts” usually do. See 1 W. LaFave, supra, § 14.1 (c), pp. 419-20 n.13. Thus, the majority argues, instead of simply saying what it meant, our legislature expected the general public to discern and infer its hidden intent from its failure to repudiate expressly speculative commentary appearing in the code of other jurisdictions, or in footnoted treatise predictions. I cannot agree with this strained reasoning.
In fact, this court’s holding in Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988), strongly suggests the opposite conclusion. In that case, we rejected a habeas petitioner’s claim that his counsel had been ineffective for failing to raise, as a bar to prosecution, the common law “year and a day” rule because it was “very doubtful if the rule ever existed in Connecticut.” Id., 90. We noted that the rule had been mentioned in Connecticut case law only twice, in dicta, in 1877 and 1984; id., 90-91; and that “the adoption of the comprehensive Penal Code in 1969 abrogated the common law and set out substantive crimes and defenses in great detail.” Id., 92. We then rejected the petitioner’s argument that the savings clause of § 53a-4 had resulted in an incorporation of the “year and a day” rule into the Penal Code because “ [generally speaking, [a] ‘savings clause’ . . . saves something . . . that would otherwise have been lost. . . . The usual function of a saving clause is to preserve something from immediate interference . . . .” (Citations omitted; internal quotation marks omitted.) Id. The flaw in the defendant’s argument, we reasoned, was that it assumed “that [the ‘year and a day’] rule had been adopted in Connecticut and remained legally viable at the time the Penal Code was enacted into law in 1969,” an argument that, in light of the absence of pre-1969 case law adopting the rule, already had been resolved against the petitioner. Id. The same circumstances are present here: Indisputably, prior to the adoption of the criminal code in 1969, no Connecticut case had adopted the bom alive rule. Accordingly, the legislature could not have intended, sub silentio, to retain it.
In contrast, in Connecticut, the defendant has been prosecuted for capital murder for killing a pregnant woman and, consequently, her full term fetus, while another individual who accomplished precisely the same result a few years later was charged with only one count of murder, simply because the fetus in that case was not delivered prior to expiring. See State
I recognize that, pursuant to United States Supreme Court precedent, courts should not apply the rule of lenity unless a statute remains ambiguous after consulting its language, structure and legislative history and the policies motivating its passage. See, e.g., Moskal v. United States, 498 U.S. 103, 108, 111 S. Ct. 461, 112 L. Ed. 2d 449 (1990). That approach has been criticized heavily, however, by members of both that court and this one, in light of the rule’s motivating concerns, namely, the provision of notice and fair warning to criminal defendants as to what conduct is prohibited. See State v. Lutters, 270 Conn. 198, 222-23, 853 A.2d 434 (2004) (Zarella, J., concurring); see also United States v. Hayes, 555 U.S. 415, 129 S. Ct. 1079, 1093, 172 L. Ed. 2d 816 (2009) (Roberts, C. J., dissenting) (“[i]f the rule of lenity means anything, it is that an individual should not go to jail for failing to conduct a [fifty state] survey or comb through obscure legislative history”). In light of those concerns, I am hard pressed to conclude that the United States Supreme Court’s sanction of the use of legislative history in this context extends to the use of legislative history underlying different statutory provisions enacted after the criminal conduct in question, as the majority has done in this case. Moreover, for reasons discussed hereinafter, I believe the majority’s complete reliance on extrajurisdictional precedent and secondary sources to uphold this defendant’s conviction, rather than for future application of our murder statutes in similar circumstances, also offends due process. Without this disproportionate level of assistance from secondary interpretory aids, Connecticut’s statutory definition remains ambiguous such that the rule of lenity properly is applicable.
In In re Valerie D., 25 Conn. App. 586, 591-92, 595 A.2d 922 (1991), rev’d, 223 Conn. 492, 499, 613 A.2d 748 (1992), the Appellate Court alluded vaguely to the bom alive rule in recounting the holding of Anonymous, when determining that, pursuant to governing statutes, a mother’s prenatal conduct toward her fetus could be taken into account during proceedings for neglect and termination of parental rights brought subsequent to the child’s birth. The Appellate Court then rejected the applicability of the rule’s underlying rationale in that context in favor of the reasoning of cases allowing tort claims for injuries inflicted in útero. Id. In reversing the Appellate Court’s ultimate determination, this court did not mention either Anonymous or the bom alive rule. See In re Valerie D., supra, 223 Conn. 492.
There were additional indications, at the time oí the defendant’s acts, that Connecticut was not inclined to afford much legal protection to fetuses. As I mentioned previously in this opinion, there was no statute, as there is now; see General Statutes § 53a-59c; imposing additional penalties for an assault of a pregnant woman that results in the death of her fetus in útero. Furthermore, this court had held that a mother’s detrimental actions toward her child, occurring prior to the child’s birth, could not form the basis of a petition to terminate the mother’s parental rights. In re Valerie D., 223 Conn. 492, 505, 613 A.2d 748 (1992). Finally, consistent with the United States Supreme Court’s decision in Roe v. Wade, 410 U.S. 113, 157-59, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which rejected the notion that a fetus is a person within the meaning of the fourteenth amendment, the right to an abortion was, and remains, statutorily protected with minimal restrictions. See General Statutes § 19a-602.
Like Justice Zarella, I disagree with the majority’s conclusion that it is appropriate to look to decisions of the Superior Court in civil cases that discuss a child’s right to bring a tort action for injuries sustained in útero. See, e.g., Simon v. Mullin, 34 Conn. Sup. 139, 380 A.2d 1353 (1977); Tursi v. New England Windsor Co., 19 Conn. Sup. 242, 111 A.2d 14 (1955). I acknowledge that judicial opinions, to provide the requisite notice and fair warning to a defendant that his conduct is criminal, need not involve precisely the same factual scenario as the defendant’s case. See Rose v. Locke, 423 U.S. 48, 51, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975). Entirely different considerations apply, however, in the civil context than in the criminal context. See State v. Amaro, 448 A.2d 1257, 1259 (R.1. 1982) (wrongful death statutes are “remedial in nature, and . . . thus properly subject to a liberal application” while a “statute that is clearly penal in nature . . . must . . . be narrowly construed”); see also Vo v. Superior Court, 172 Ariz. 195, 205, 836 P.2d 408 (App. 1992) (same). Moreover, the United States Supreme Court has rejected the notion that civil case law suffices to provide notice to citizens as to the meaning of analogous criminal provisions. See Bouie v. Columbia, supra, 378 U.S. 357-58 (holding that South Carolina Supreme Court, in reaching novel construction of criminal trespass statute that deprived defendants of due process, improperly relied on “irrelevant” cases concerning law of civil trespass; because “[b]oth cases . . . turned wholly upon tort principles . . . they had no relevance whatever ... to criminal trespass”).
The majority’s lengthy description oí the content of the trial court’s opinion in Anonymous is notable for what it does not include, namely, a clear statement explaining the operation of the bom alive rale or an overt acknowledgment that it is controlling law in Connecticut. Contrary to the majority’s initial characterization of Anonymous, the trial court in no way “relied expressly on the bom alive rule in concluding that a fetus killed in útero is not a person for purposes of our murder statute”; (emphasis added) State v. Anonymous (1986-1), supra, 40 Conn. Sup. 505; nor was it necessary for the court to do so. As I noted previously in this opinion, the trial court in Anonymous explored many sources of legislative intent, none of which indicated that the legislature intended for the protections of the criminal code to apply to unborn, viable fetuses. Because the purported victim in Anonymous had not been bora alive, then expired from injuries inflicted in útero, the court simply had no occasion to decide what rule the legislature intended to control in that circumstance and, accordingly, the opinion does not discuss it. Even if it had, “discussion in a judicial opinion that goes beyond the facts involved in the issues is mere dictum and does not have the force of precedent.” Valeriano v. Bronson, supra, 209 Conn. 91.
Moreover, even if the trial court’s imprecise and indirect statements in Anonymous, as recited by the majority in the present case, can be said to be an implicit acknowledgment of the bom alive rule, such an acknowledgment resembles an instance in which a court assumes, without actually deciding, that a particular rule is in force, then disposes of the case by determining that, given the facts of the case, the claim at issue nevertheless fails. Oftentimes, the court later will have occasion to decide squarely whether it ought to adopt the rule and, when it so decides, it is not to be bound by its earlier assumption because the propriety of that assumption, having not been directly at issue, was purely dictum. See, e.g., Stuart v. Commissioner of Correction, 266 Conn. 596, 603 n.ll, 834 A.2d 52 (2003) (concluding that persons arrested and confined in other states are not similarly situated to those arrested and confined in Connecticut, despite previous case assuming that opposite was true, but disposing of case on rationale that no fundamental right was at stake); Ford v. Ford, 68 Conn. App. 173, 177 and n.2, 789 A.2d 1104 (concluding that certain factors need not be considered in initial custody determination despite previous case assuming that opposite was true, but disposing of case on rationale that trial court did consider factors), cert. denied, 260 Conn. 910, 796 A.2d 556 (2002).
The majority’s desperation is evident from its suggestion that, consistent with due process jurisprudence, the defendant should be constructively
Although the majority proceeds as if the bom alive rule had been universally adopted in every state, it is unclear whether that, in fact, is the case. In any event, whatever historical foothold the rule had acquired largely has been abandoned, for the most part legislatively, in favor of less arbitrary rales affording greater protection to fetuses and treating equally culpable defendants with greater parity. See D. Curran, note, “Abandonment and Reconciliation: Addressing Political and Common Law Objections to Fetal Homicide Laws,” 58 Duke L.J. 1107,1109 (2009) (beginning in 1970s, American jurisdictions began moving away from bom alive rule and, by 2009, thirty-six states had abandoned it).
I use the word “typically” in acknowledgment of the point made earlier, that there are no hard and fast rules or set methodology for evaluating due process arguments. Due to the vast body of due process jurisprudence, I cannot say with certainty that there is no case in which a court’s exclusive reliance on extrajurisdictional precedent and secondary sources to reject a vagueness claim has been upheld. I submit, however, that such a case would be more the exception than the norm, and that in a matter involving the penalty of death, this court should refrain from heavy reliance on questionable techniques when analyzing a due process claim.
The United States Supreme Court has explained: “It would be a rare situation in which the meaning of a statute of another [s]tate [as interpreted by that state’s courts] sufficed to afford a person ‘fair warning’ that his own [sjtate’s statute meant something quite different from what its words said.” Bouie v. Columbia, supra, 378 U.S. 359-60 (rejecting South Carolina’s reliance on North Carolina decisions in evaluating due process challenge). This court previously has acknowledged this restriction. See State v. DeFrancesco, 235 Conn. 426, 444, 668 A.2d 348 (1995) (“[i]n determining whether a statute is unconstitutionally vague, we take into account any prior interpretations that this court, our Appellate Court and the Appellate Session of the Superior Court have placed on the statute” [internal quotation marks omitted]); State v. Indrisano, 228 Conn. 795, 805 n.6, 640 A.2d 986 (1994) (“[t]he rule of federal vagueness jurisprudence is that prior judicial decisions interpreting a state statute are authoritative if they are decisions of a court of statewide jurisdiction, the decisions of which are binding upon all trial courts in the absence of a conflicting decision of the [state] Supreme Court” [internal quotation marks omitted]). Clearly, the Superior Court’s decision in Anonymous does not fall within the foregoing parameters.
Although additional language from DeFrancesco on its face suggests, contrary to Bouie, Indrisano and the several United States Supreme Court
Needless to say, the “unique” circumstances of Proto are not present here. As the majority acknowledges, the legislative history of §§ 53a-3 (1) and 53a-54a (a) “offers no guidance with respect to the issue raised by the present case,” let alone does it indicate that in promulgating those statutes, the General Assembly intended to incorporate doctrine enshrined in other jurisdictions’ statutes or common-law jurisprudence, particularly where those jurisdictions’ statutes are worded differently or where they have different common-law traditions or constitutional provisions adopting English common law. If that was the legislature’s intent, it easily could have indicated that by including the words, “who has been bom and is alive,” to the definition of person, rather than expecting this court to discover it serendipitously in the course of a winding, extrajurisdictional journey, indeed, in the decisions of tribunals as distant as New South Wales, Australia.
As the foregoing explanation demonstrates, the quoted language in DeFrancesco, traced to its source, cannot reasonably be read to sanction heavy reliance on dicta from a single trial court opinion that postdated the legislature’s enactment of the Penal Code by seventeen years and, consequently, could not have been intended by the legislature to be incorporated into the Penal Code. This is particularly so in light of the extensive federal authority counseling otherwise and which, in the event of a conflict with state jurisprudence on a federal due process question, obviously is controlling. See, e.g., Hagan v. Caspari, 50 F.3d 542, 544-45 (8th Cir. 1995); Moore v. Wyrick, 766 F.2d 1253, 1255 (8th Cir. 1985), cert. denied sub nom. Armontrout v. Moore, 475 U.S. 1032, 106 S. Ct. 1242, 89 L. Ed. 2d 350 (1986).
See, e.g., People v. Hall, 158 App. Div. 2d 69, 557 N.Y.S.2d 879 (1990) (applying statutory definition that explicitly incorporated bom alive rule); Cuellar v. State, 957 S.W.2d 134 (Tex. App. 1997) (same); State v. Cornelius, 152 Wis. 2d 272, 448 N.W.2d 434 (App. 1989) (same). It should go without saying that, when the language of a Connecticut statute differs significantly from statutes of other states governing the same subject matter, judicial precedents from those states are of little utility for purposes of interpreting the Connecticut provision. See Nickel Mine Brook Associates v. Joseph E. Sakal, PC., 217 Conn. 361, 365, 585 A.2d 1210 (1991).
The majority, in one instance of looking to extrajurisdictional jurisprudence for guidance, observes that “numerous other appellate courts have recognized the bom alive rule and deemed it applicable to the then pending case solely on the basis of English common-law authority, other state cases, the writings of legal commentators or a combination thereof.” What the majority declines to state, however, is that in three of the five cases cited, the rule was applied to absolve a defendant of criminal liability for the death of an unborn fetus by rejecting the state’s contention that a viability standard ought to apply instead. See People v. Greer, 79 Ill. 2d 103, 402 N.E.2d 203 (1980); People v. Guthrie, 97 Mich. App. 226, 293 N.W.2d 775 (1980), cert. denied, 417 Mich. 1006, 334 N.W.2d 616 (1983); State v. Beale, 324 N.C. 87, 376 S.E.2d 1 (1989). Consequently, in the foregoing cases, no due process
Notably, several of the other contemporary cases relied upon by the majority in support of the notion that the born alive rule is firmly established by the common law, similar to Greer, Guthrie and Beale, cite the rule in the context of considering whether a charge of homicide may lie for the killing of an unborn fetus, and not to apply the rule directly to uphold a criminal conviction. See Commonwealth v. Cass, 392 Mass. 799, 467 N.W.2d 1324 (1984); State v. Amaro, 448 A.2d 1257, 1258 (R.I. 1982); Keeler v. Superior Court, 2 Cal. 3d 619, 624, 470 P.2d 617, 87 Cal. Rptr. 481 (1970). This is because direct application of the rule was widespread only much further back in the historical record.
The majority is dismissive of this serious constitutional claim, reasoning, in part, that I have not identified any instance of a court holding application of the bom alive rule to be unconstitutional. This circumstance likely is a function of both the rule’s antiquity and its now widespread abandonment. In jurisdictions where the rale received early legislative or judicial recognition, predating robust due process jurisprudence, such recognition would preclude later vagueness challenges. Moreover, in the thirty-six states that have abandoned the rule during the last five decades or so, there clearly no longer is any occasion for a constitutional challenge.
The majority’s assertion that it has not relied on this material in resolving the defendant’s due process argument, but only to determine that “it evinces the intent of the legislature to recognize the bom alive rule,” is difficult to comprehend. Simply put, the defendant’s due process argument is inextricably intertwined with the questions of what the legislature intended and whether that intent was made clear, either by the statutory language, or other interpretative aids, at the time of the defendant’s conduct.
Because the reports of the office of legislative research, also relied upon by the majority, were drafted in 2003, they similarly are irrelevant to the question of whether the defendant received notice and fair warning.
Putting aside the temporal difficulties with this argument, I fail to understand why the result imagined by the majority is any more or less “irrational and bizarre” than the necessary implication of the majority’s conclusion today. Specifically, underlying that conclusion is a presumption that the legislature, in purportedly adopting the bom alive rule when it promulgated the Penal Code in 1969, intended for identical conduct to be considered either murder, rendering the defendant potentially eligible for the death penalty, or a noncriminal act carrying no penalty, with the outcome of a particular case dependent not upon the precise character of the defendant’s conduct and his relative culpability, but on such external factors as the availability, skill and timeliness of intervening medical professionals and the random circumstance of when the death of the fetus ultimately occurred. Compare State v. Latour, supra, 276 Conn. 399, with the present case.
I disagree with the majority’s reliance on Zephaniah Swift and William Blackstone for the proposition that, because the bom alive rule was firmly entrenched in the common law generally, it automatically became part of the common law of Connecticut without any explicit adoption by the legislature or the courts of this state. “[A]s Blackstone wrote, the common law was a law for England, and did not automatically transfer to the American [cjolonies; rather, it had to be adopted. See 1 [W.] Blackstone [Commentaries on the Laws of England (1769)] *107-*108 (observing that the common law of England, as such, has no allowance or authority in [o]ur American plantations); see also 1 [Z.] Swift [A System of the Laws of the State of Connecticut (1795) p. 45] ([t]he English common law is not in itself binding in this state); id., [44-45] Qt]he English common law has never been considered to be more obligatory here, than the Roman law has been in England). In short, the colonial courts felt themselves perfectly free to pick and choose which parts of the English common law they would adopt.” (Internal quotation marks omitted.) Rogers v. Tennessee, supra, 532 U.S. 475 (Scalia, J., dissenting).
Although the majority cites several cases in which this court has relied on the writings of Swift, it is worth emphasizing that we do not inevitably do so. We have declined to take that approach, for example, where the statute at issue “has been drastically changed since Swift’s time”; State v. Van Allen, 140 Conn. 586, 589, 102 A.2d 526 (1954); see also State v. Nixon, 32 Conn. App. 224, 246, 630 A.2d 74 (1993) (refusing to engraft common-law definition of rioting requiring participation of at least three participants, as described in writings of Swift, onto modem rioting statute that, by express terms, was not so limited), affd, 231 Conn. 545, 651 A.2d 1264 (1995); or where Swift’s writing reflected a view of the common law that had not been applied in any case and later was rejected. State v. James, 237 Conn. 390, 417-18, 678 A.2d 1338 (1996); see also Valeriano v. Bronson, supra, 209
My conclusion that there was insufficient notice of the born alive mle to apply that doctrine to this defendant would not impede future prosecutions under that doctrine as a result of the majority’s conclusion and, therefore,
As earlier explained, I disagree with this approach. See footnote 13 of this concurring and dissenting opinion.
According to the majority, this court’s holding in State v. Miranda, supra, 260 Conn. 93 (Miranda II), which relied on Rogers, provides additional support for its conclusion that adoption of the bom alive rule is not unexpected and indefensible with reference to previously stated law. At the outset, I disagree that the reliability of the holding of Miranda II, namely, that the retroactive application of State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998) (Miranda I), did not offend due process, was not seriously undermined when this court subsequently reversed Miranda I. In State v. Miranda, supra, 274 Conn. 727 (Miranda III), three justices of this court opined that Miranda I, as a policy matter, was “clearly wrong”; id., 734; “unwise” and went “too far”; id., 749 (Borden, J., concurring); and three other justices concluded that Miranda I, as a matter of law, had been wrongly decided, in part because the opinion had failed to consider the plain language and legislative history of the statute at issue, contrary to what had been stated in Miranda II, and instead had relied on local and extrajurisdictional precedent that largely was inapposite. Id., 758 n.4,762-64 ("Vertefeuille, J., concurring). According to the majority, however, our conclusion in Miranda II that this deeply flawed decision was “reasonably foreseeable”; Miranda II, supra, 110; nevertheless remains inviolate.
The majority applies the holding of Rogers expansively and mechanically, and at a highly general level. In short, according to the majority, because the United States Supreme Court inRogers concluded that a retroactive overruling of precedent did not offend due process, any retroactive change in the law that falls short of a direct overruling of prior case law necessarily is constitutional. Moreover, the majority reasons, because the United States Supreme Court sanctioned consideration of extrajurisdictional precedent as a factor in certain circumstances, complete reliance on extrajurisdictional precedent, in the absence of any authoritative pronouncement from Connecticut’s courts or legislature, is entirely appropriate.
I reject this approach as overly cynical and inconsistent with the individualized, case specific consideration that should be given to claims of inadequate notice. Furthermore, novel judicial interpretations of statutes that did not involve outright reversal of previous precedent have been held to be unexpected and indefensible with reference to the law as previously stated and, therefore, violative of due process. Typically, these cases involve the expansion of statutory language to cover conduct not obviously within a statute’s reach or not previously held to be within its coverage. See, e.g., Bouie v. Columbia, supra, 378 U.S. 347 (finding due process violation where state court expanded reach of trespassing statute beyond plain language or scope previously indicated); 1 W. LaFave, supra, § 2-4 (c), p. 163 n.62 (“[a]n examination of the prior state decisions [in Bouie] shows that none were actually overruled by the case which held that the trespass statute also covered instances in which a person refuses to leave the land of another after being ordered to do so”); see also Rabe v. Washington, 405 U.S. 313, 315, 92 S. Ct. 993, 31 L. Ed. 2d 258 (holding due process violation where state court broadened reach of obscenity statute by finding dispositive
As the court explained in Rogers, the year and a day rule, prior to the conduct in question, had been mentioned in one decision of the Tennessee Supreme Court and one decision of the Tennessee Court of Appeals, both times in dicta.
Apparently, the majority considers historic trends more compelling than contemporary ones. Astoundingly, according to the majority, “the reasons for recognizing the rule are compelling and . . . there is no persuasive reason for not doing so.”
Indeed, for very similar reasons, this court concluded that the year and a day rule never existed in Connecticut. See Valeriano v. Bronson, supra, 209 Conn. 90-95 (rejecting argument that rule was part of Connecticut common law where it had been mentioned rarely and only in dicta, did not appear in our Penal Code and had been abolished in numerous other jurisdictions in light of its dubious underpinnings and advent of modem medical technology). Today, however, the majority concludes that its
In Higgins, the defendant had been sentenced to life imprisonment. State v. Higgins, supra, 265 Conn. 42.
Furthermore, for the reasons expressed more fully by Justice Zarella, I agree that our murder statutes require that there must be a temporal nexus between a defendant’s criminal conduct and the status of the victim when the fatal injury is inflicted.
The difference is that first degree murder requires premeditation. Compare Minn. Stat. § 609.2661 (1988) with Minn. Stat. § 609.2662 (1988).
Indeed, as the majority itself acknowledges, the expanded two-prong definition of life, and conversely, death, already had been applied in the bom alive rule context six years prior to the defendant’s trial. See People v. Flores, supra, 3 Cal. App. 4th 210-11.
The majority’s attempt to explain the due process violation by mischaracterizing my argument concerning the need for clairvoyance is unavailing under the circumstances of this case. My point, simply put, is that the majority has denied the defendant fundamental fairness in two separate respects — first, by charging him with knowledge that a wholly unarticulated and, therefore, novel interpretation of our murder statutes would apply to make his conduct as to Antonia criminal, and, second, by failing to require the state to appreciate that a general standard for determining death, intended to apply in a variety of contexts, would be pertinent to the life or death issue at the heart of this case. The majority, rather than refuting this argument, attempts to distract from it through mischaracterization.
Reference
- Full Case Name
- State of Connecticut v. Robert Courchesne
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- 87 cases
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- Published