Lead Opinion
Opinion
At approximately 11 p.m. on September 15, 1998, the defendant, Robert Courchesne, and an acquaintance, Demetris Rodgers, were seated in the defendant’s car in the parking lot of Webster Bank located on the comer of Chase and Wigwam Avenues in Waterbury, arguing over a drug debt that the defendant owed Rodgers’ boyfriend. When Rodgers became upset upon learning that the defendant was unable to pay the debt, the defendant took a serrated kitchen knife that he kept in his car and repeatedly stabbed Rodgers with it in her chest and back. Rodgers, who was approximately eight and one-half months pregnant, managed to escape from the car and to mn a short distance before collapsing in the street as a result of her wounds. The defendant fled the scene in his car. About fifteen minutes later, a passerby discovered Rodgers. Shortly thereafter, a police officer arrived at the scene and called for emergency medical personnel, who attempted to revive Rodgers. Rodgers then was transported to Waterbury Hospital (hospital), where she was pronounced dead. An emergency department physician performed an emergency cesarean section on Rodgers and delivered her baby, Antonia Rodgers.
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,
For the reasons that follow, we reject the defendant’s guilt phase claims and the penalty phase claims that we address. We nevertheless conclude that the panel applied the wrong evidentiary standard in finding that the state had established beyond a reasonable doubt that Antonia was bom alive. Specifically, the panel improperly failed to consider whether, in accordance with State v. Guess,
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 a suppression hearing at which both defense counsel and the state presented evidence. The state called as witnesses Detective John Kennelly and Sergeant Gary Pelosi, both members of the criminal investigations division of the Waterbury police department. The defense witnesses included the defendant’s girlfriend in 1998, Jacqueline Wilson, the defendant’s neighbors, Tamara Oliver and Sydney Vega, and Paul Ariola, a detective with the Waterbury police department. No two witnesses gave the exact same account of events relating to the defendant’s alleged seizure by the police.
The state’s first witness, Kennelly, testified that, sometime in the early morning hours of September 16, 1998, Waterbury
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 Pelosi, Kennelly told the defendant that he wanted to speak to him at the police station about Rodgers’ death and asked him if he would be willing to do so. Pelosi further testified that none of the officers was in uniform, no guns were drawn when they approached the defendant’s vehicle, the defendant was not told that he was under arrest, and he was not handcuffed or otherwise restrained. Pelosi described the defendant’s demeanor as
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 me.” Wilson also explained, however, that, after exiting the vehicle, she went to the police station vohmtarily.
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 that he wanted the defendant to accompany him to the police station to talk about Rodgers. Neither officer had his gun drawn. Ariola further testified that there was no probable cause at that time to
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. The court stated that Vega’s testimony that the officers had drawn their weapons was not credible, noting that, of all the witnesses, Vega was the only one to testify that the police were brandishing guns when they approached the defendant. The court also found that, although the officers “did stop [the defendant’s] car,” their actions were reasonable under the circumstances because it might not have been possible for the officers otherwise to have captured the defendant’s attention to alert him to the fact that they wanted to speak with him. The court further found that the confrontation between the defendant and the police was not a seizure for constitutional purposes, and, even if it was, it was based on a “reasonable, articulable suspicion” that the defendant was involved in Rodgers’ death because her murder had occurred only a few hours earlier and the defendant had been identified as the last person to be seen with Rodgers while she was still alive. The court made no other specific findings with respect to the issue of whether the police had exceeded the permissible limits of a Terry stop. The court did note, however, that police officers are paid to speak with people in furtherance of criminal investigations and, therefore, that the officers in the present case had every right to try to speak with the defendant. Finally, the court found that the defendant had gone to the police station voluntarily. In support of this conclusion, the court observed that the defendant may have done so out of feelings of remorse or shame for what he had done because, as soon as he arrived at the station, he immediately began to cry and confessed to stabbing Rodgers. The court concluded, on the basis of the defendant’s behavior, that he did not “sound like somebody who is really resistant to the efforts of the police to talk to him.” Although the court stated that it would expand on its oral ruling in a
“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,
“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,
“[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,
“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,
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, [
“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,
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,
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.
For purposes of this appeal, we assume, arguendo, that the police seized or detained the defendant when they approached him and confronted him with the request that he accompany them to the station. We conclude, however, that the trial court properly determined that the seizure of the defendant by the police constituted a lawful Terry stop.
“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,
“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,
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.
The defendant nevertheless claims that the officers, by virtue of their actions, exceeded the scope of a permissible investigative stop, as a matter of law, when they approached and communicated with him. “When engaging in a fourth amendment reasonableness inquiry, we ask, would the facts available to the officer at the moment of the seizure or the search warrant a [person] reasonable caution in the belief that the action taken was appropriate? . . . [T]o satisfy the reasonableness standard, officers conducting stops on
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,
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 is permissible to maintain the status quo when the subject of the investigatory stop is in a vehicle and, therefore, has the capacity to flee from the scene unless physically blocked from doing so. See, e.g., United States v. Tuley,
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,
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,
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,
. . . We may reverse [the trial court’s factual] findings on appeal only if they are clearly erroneous.” (Internal quotation marks omitted.) State v. Azukas,
This court recently considered the issue of voluntary consent in State v. Azukas, supra,
Similarly, in State v. Colon, supra,
Other courts also have concluded that a defendant’s consent to accompany the police
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 to the station; at no time was the defendant told that he was obligated to go to the station or that he otherwise was required to speak to the police. Although it may be true that most people would view such an approach by the police with concern or apprehension, we never have held that a Terry stop is so inherently coercive as to compel the conclusion that the suspect’s agreement to speak to the police could not have been voluntary. On the contrary, the test is fact specific, so that, ultimately, the determination of whether the consent was voluntary rests on a careful consideration of the totality of the relevant circumstances. The record supports the trial court’s conclusion that the defendant voluntarily agreed to accompany the police to the station upon being requested to do so.
The defendant nevertheless has identified twenty-five “circumstances,”
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
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
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,
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 inflicted in útero.” Id., 68. The corut further observed that the bom alive rule previously had been recognized in this state in State v. Anonymous (1986-1),
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 death of another person, he causes the death . . . of a third person . . . .” (Emphasis added.)
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.,
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
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,
We also look for interpretive guidance to common-law principles governing the same general subject matter.
“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,
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. . . .
“To constitute murder the party killed must be a reasonable being, alive and in the peace. Therefore to take a potion in order to procure an abortion or to administer it, to a pregnant female with the same design, or to strike her so that the child is killed, is not murder at common law, because [the child] is not in existence, and the circumstance of its death cannot be ascertained with sufficient precision: but if the child be bom alive, and afterwards die[s] by reason of the violence it has received before its birth, it seems to be the better opinion that it will be murder in the party who inflicted it.”
In ascertaining the common law, we also look to the decisions of other jurisdictions. E.g., Rogers v. Tennessee,
“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,
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 S.W.3d 654, 660 (Ky. 2004); see also, e.g., Hughes v. State,
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,
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 prevents a charge of homicide when a child is stillborn after an assault. At common law, the killing of an unborn human was not treated as a homicide unless the child was bom alive and died thereafter and bom alive does not mean term birth, it doesn’t mean [forty] weeks gestation. It simply means expulsion from the womb at any time of pregnancy.
“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
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.
Ultimately, the legislature opted to treat the assault of a pregnant woman that results in the termination of her pregnancy without a live birth as an aggravated assault on the pregnant woman, and not as a homicide of the fetus, irrespective of whether the fetus was viable when the pregnancy was terminated. See P.A. 03-21. By its express terms, P.A. 03-21 applies only to “the termination of [a] pregnancy that does not result in a live birth,” language that clearly reflects the legislature’s awareness that it was carving out an exception for an infant who is bom alive but who thereafter dies from injuries sustained in útero. The reason for this exception could hardly be clearer in light of the legislative debate that preceded the enactment of P.A. 03-21, namely, the legislature’s recognition that an infant who is bom alive but subsequently dies from injuries sustained in útero already is protected by virtue of the operation of the bom alive rule, pursuant to which the infant’s death is treated as a homicide.
“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 an infant who is bom alive and who subsequently dies of injuries that he or she had sustained in útero is a “person” within the meaning of this state’s homicide statutes.
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
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
It is crystal clear from the legislative history of P.A. 03-21 that the legislature took this approach because of the concern that treating a fetus as a person for purposes of our murder statute might have significant implications in the area of abortion rights. Indeed, the very same debate that preceded the enactment of P.A. 03-21 has occurred in many other states throughout the country, prompting one commentator to explain: “Analytically, this topic is a difficult one — on one hand, it is hardly controversial to take the position that a fetus is a human organism (though the legal personhood of a fetus is hotly debated) and that, consequently, the killing of a fetus should not go entirely unpunished. But, on the other hand, those advocates of constitutionally protected reproductive rights balk at classifying all unborn children as ‘human beings’ for the purposes of homicide statutes. The challenge, then, becomes appropriately protecting pregnant mothers and their unborn children while still maintaining reproductive freedoms. . . .
“[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 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
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,
The statutory interpretation that Justice Zarella urges is wholly incompatible with each and every one of these fundamental
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 is bom alive but who subsequently dies from injuries suffered in útero as a murder on the ground that this distinction “makes no sense whatsoever.” This assertion is suspect if for no other reason than the fact that seventeen of our sister states still “retain some form of the bom alive mle.” State v. Lamy,
Indeed, to whatever extent one reasonably might disagree with the distinction that the legislature has adopted, the classification that would result from the statutory interpretation that Justice Zarella advocates— that is, one that distinguishes the intentional killing of a fetus that dies in útero from the intentional killing of an infant who is bom alive but who subsequently dies from injuries inflicted in útero by treating the former as a class A felony and the latter as no crime at all— is utterly irrational. Notably, as we previously have observed, Justice Zarella has not identified any conceivable reason why the legislature would place its imprimatur on such a perverse scheme.
We also find no merit to the defendant’s claim that the bom alive rale is inconsistent with and “thus abrogated by the Penal Code [because the code premises] criminal liability on attendant circumstances that must exist at the time the defendant [commits the criminal acts].” The defendant argues, essentially, that the legislature, in adopting the Penal Code, intended that any conduct proscribed thereunder must be perpetrated on a victim who has been bom and is alive at the time of the conduct.
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,
For example, in Cuellar v. State, supra,
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.,
In sum, the bom alive rule is well established in the common law of this state, and P.A. 03-21 reflects the legislature’s express acceptance of the rule. Moreover, there is nothing in our homicide statutes or elsewhere in the Penal Code to suggest that application of the rule is barred by any requirement of a temporal nexus between the defendant’s conduct and the status of the victim.
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,
As we previously explained, under the bom alive rule, a person who inflicts injuries on a fetus in útero with the intent to kill that fetus is guilty of murder if the fetus is bom alive but subsequently dies as a result of the injuries suffered in útero. Consequently, the bom alive rule operates to render the fetus a person for purposes of our homicide statutes if that fetus, having been injured in útero, nevertheless is bom alive and then dies of the injuries sustained in útero. Put differently, in that particular factual scenario, the fetus is treated like any other person. Thus, a defendant who, intending to kill a pregnant woman, inflicts injuries on the fetus that prove to be fatal only after the fetus is bom alive, that is, once the fetus has achieved the status of a person under the bom alive rule, is guilty of murder by operation of the transferred intent doctrine embodied in § 53a-54a (a). In other words, because a fetus that is bom alive is a person for purposes of our homicide statutes, the transferred intent provisions of § 53a-54a (a) are equally applicable to a fetus that is bom alive as they are to any other person.
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,
“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.
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,
Subsequent to Rogers, this court, in State v. Miranda, supra,
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,
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,
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,
“[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.,
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,
In his concurring and dissenting opinion, Justice Schaller nevertheless asserts that our recognition of the bom alive rule violates due process, apparently because, in his view, doing so represents an unexpected and indefensible interpretation of the law as it existed when the defendant killed Rodgers and Antonia.
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,
The United States Supreme Court affirmed the judgment of the Supreme Court of Tennessee; Rogers v. Tennessee, supra,
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,
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,
On remand, the Appellate Court affirmed Miranda’s conviction for risk of injury to a child. See State v. Miranda,
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 contrast to Rogers, the present case “does not involve any expansion of the scope of criminal liability beyond that indicated by previous decisional law.” Ortiz v. N.Y.S. Parole in Bronx, N.Y., supra,
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,
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, the Appellate Court originally concluded in Miranda that applying the assault statute to Miranda’s passive conduct was unjustifiable because Miranda had no legal duty to act under the circumstances. See State v. Miranda, supra,
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 alive rule in the present case violates those principles. Because neither Rogers nor Miranda represented a marked or unforeseeable departure from then applicable law, the present case, which represents a considerably more conventional and foreseeable example of common-law adjudication, certainly cannot be deemed to run afoul of due process requirements. For this reason, the due process analysis in Justice Schaller’s concurring and dissenting opinion is flawed
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,
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,
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,
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,
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,
Thus, as the court stated in State v. Courchesne, supra,
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.
On the contrary, as one court has stated in addressing a similar contention: “[I]t is impossible to perceive how an individual of even less than ordinary intelligence can fail to be aware that [stabbing a pregnant woman repeatedly in the chest and back] is not lawful conduct, and, in fact, [the perpetrator’s] behavior after the [stabbing] in immediately [fleeing and] divesting himself of the [knife] . . . clearly indicates that he recognized the criminality involved in his actions. . . .
“[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
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,
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,
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 discourage a perpetrator from attempting to save the life of an injured fetus.” Id., 590-91. Although the court acknowledged the “irony” inherent in the existing statutory scheme, it expressed doubt that “persons who have engaged in homicidal conduct will render aid to then-victims, fetal or otherwise. Rarer still would be the killer who would refrain from attempting to save the life of the fetus solely based [on] the knowledge that allowing the child to die might reduce the perpetrator’s culpability from murder to manslaughter.” Id., 591. The court concluded that, “[e]ven [if its interpretation of Arizona’s] homicide statutes [as applying] when the injured fetus dies after birth would have the effect Cotton claims, a contrary interpretation would result in even greater injustice. One who recklessly kills a fetus before birth under circumstances that would constitute murder of the mother could be convicted of fetal manslaughter. . . . However, under Cotton’s interpretation, one who premeditatedly injures a child in útero could not be prosecuted for the later death, [as] long as the child lived long enough to be bom: the fetal manslaughter statute would not apply once the child was bom and the murder statute would not apply because no injury was inflicted on a ‘person.’ Thus, Cotton’s interpretation would spawn the irony that the more serious criminal act of intentionally harming the fetus would carry no sanction if the child died after birth, while recklessly engaging in the same conduct would carry the possible sentence of ten and one-half years [imprisonment] if the fetus died before birth. . . .
“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
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,
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,
In reaching our conclusion, we emphasized that “our recognition of brain-based criteria for determining death [was] not unfaithful to any prior judicial determinations. Death remains the single phenomenon identified at common law; the supplemental criteria are merely adapted to account for the changed conditions that a dead body may be attached to a machine so as to exhibit demonstrably false indicia of life. It reflects an improved understanding that in the complete and irreversible absence of a functioning brain, the traditional loci of life — the heart and the lungs — function only as a result of stimuli originating from outside of the body and will never again function as part of an integrated organism.” (Internal quotation marks omitted.) Id., 780-81.
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
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 state’s burden of proving that Antonia was bom alive required the state “to disprove any reasonable hypothesis arising from the evidence that [Antonia] actually died before she was extracted from the womb . . . and placed on life support.” (Emphasis added.) The defendant maintains, moreover, that the state’s evidence failed to meet this standard because the testimony of Palmer, the emergency department physician who delivered Antonia, was based solely on the fact that Antonia had a heartbeat and was breathing after she had been placed on a ventilator. The defendant further claims that, in light of the testimony of Harold Wayne Carver II, the state’s chief medical examiner, that Antonia’s brain was “badly damaged” and “contained areas of atrophy or wasting away of the tissues” as a result of prenatal oxygen deprivation, there is a very real possibility, which the state was required to disprove, that Antonia was brain dead at the time of her birth and, therefore, was not a “person” within the meaning of the state’s murder statute.
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.
Before turning to the merits of the defendant’s contention, we note that, at trial, the defendant never raised the evidentiary insufficiency claim that he now raises on appeal. Although defense counsel moved for a judgment of acquittal at the close of the state’s case-in-chief on the ground of insufficiency of the evidence, his claim was based primarily on the contention that the state had failed to prove that
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, if any, that case might have with respect to the issue of Antonia’s status at the time of her birth. It is apparent, rather, that the panel, in determining her status, applied the traditional common-law test pursuant to which an infant is bom alive if she has circulatory and respiratory functions that are independent of her mother. Indeed, our review of the record indicates that Guess was mentioned only once in the entire course of the trial. That occurred when defense counsel, at the close of the state’s case-in-chief, moved for a judgment of acquittal on the ground of evidentiary insufficiency. At that time, defense counsel primarily argued that the state had failed to prove that the defendant possessed the requisite intent to murder Antonia because she was still a fetus, and not a person, when the defendant inflicted the injuries on Rodgers that ultimately caused Antonia’s death; defense counsel also asserted, however, that the state had failed to prove that the defendant’s conduct, and not the actions of medical personnel in removing Antonia from life support, was the proximate cause of Antonia’s death. In support of this latter contention, defense counsel relied on Guess, explaining that, in contrast to the proof that had been adduced by the state in Guess, there was no evidence tending to establish that Antonia was brain dead when she was removed from life support.
At no time, moreover, did the defendant seek to establish, through Palmer or any other witness, that Antonia was brain dead at the time of her birth. To the contrary, consistent with the aforementioned theory of defense, defense counsel apparently elicited testimony from Palmer
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 B of this opinion, we conclude that the panel improperly failed to apply the Guess standard for purposes of determining whether Antonia was bom alive. More specifically, we conclude that, in light of the fact that, as in Guess, a person whose circulatory and respiratory functions are sustained by life support nevertheless may have suffered brain death, it necessarily follows that, to prove beyond a reasonable doubt that Antonia was alive at birth, the state must disprove that she was brain dead at birth. The proper remedy for the panel’s use of the wrong legal standard is a new trial, however, not a judgment of acquittal.
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 insufficient
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
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 had been bom at 12:16 a.m., shortly after Rodgers had been brought to the emergency department. He then asked Palmer whether he was “aware of what constitutes a fetal death in the state of Connecticut . . . .” The state’s attorney objected, and the court inquired of defense counsel as to the relevancy of the question. Defense counsel responded: “Again, the issue is whether the child was bom alive or not. I understand what the doctor’s opinion was, but I think this is relevant to his knowledge of Connecticut law, which is what we are dealing with here.” The state’s attorney responded: “[T]he doctor has said that the baby was bom alive. I know doctors are great, but I don’t think when somebody is bom dead, they can bring them back to life for [six] weeks .... This is ridiculous. It’s ludicrous, these questions.” The court overruled the state’s attorney’s objection, and Palmer then stated that he did not know “[t]he specifics of Connecticut law . . . .” Defense counsel asked Palmer whether, when he delivered Antonia, he
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.”
In its decision finding that the state had established probable cause to conclude that Antonia was bom alive and, therefore, that she was a person for purposes of our Penal Code, the court stated in relevant part: “[The] court finds that the definition of a ‘person’ in Connecticut criminal law includes those who are bom and are alive. This definition does not exclude Antonia. . . . Palmer . . . testified at the probable cause hearing that Antonia was bom and remained alive for forty-two days before she succumbed to her injuries.
“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,
“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,
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 classified Antonia’s death as a homicide and described Antonia as a “normal appearing infant” who weighed approximately ten pounds at the time of death, that is, several hours after ventilation support had been withdrawn. According to Carver, Antonia’s size and development were consistent with that of a six week old baby.
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,
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, Damiani, J., nor the panel ever mentioned or otherwise adverted to a standard requiring evidence that Antonia was capable of living independently of life support, and that no evidence relative to any such standard was adduced by either party. It therefore is clear that both the court, Damiani, J., and the panel used a test pursuant to which Antonia was deemed to have been bom alive merely because, as the court stated, she was “successfully delivered . . . and live[d] independently] of [her] 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.” State v. Courchesne, supra,
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 exhibits traditional indicia of life, that is, a heartbeat and respiration, is highly relevant to the issue of whether Antonia was alive at birth. We incorporated brain death into our common-law definition of death in Guess precisely because a person in extremis can be kept alive with the aid of life support even though that person already may have suffered an irreversible cessation of brain function. See State v. Guess, supra,
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.
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,
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,
VI
PENALTY PHASE CLAIMS
The defendant also challenges the sufficiency of the evidence presented by the
“[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. . . .
“Even with the heightened appellate scrutiny appropriate for a death penalty case, the defendant’s challenge to the sufficiency of the evidence of aggravating circumstances must be reviewed, in the final analysis, [first] by considering the evidence presented at the defendant’s penalty [phase] hearing in the light most favorable to sustaining the facts impliedly found by the jury. . . . Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established [the existence of the aggravating factor] beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . .
“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
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 examiners, Malka Shah, testified that Rodgers had sustained several injuries in a number of different places on her body, including a stab wound to her chest and seven stab wounds to her back. The chest wound measured five and one-half inches deep, and penetrated the right border of Rodgers’ sternum and her heart. The most serious stab wound to Rodgers’ back measured five inches deep and penetrated the abdominal cavity. According to Shah, the stab wounds to Rodgers’ chest and abdomen had caused her death. In addition to these wounds, Rodgers also sustained a three inch wound to her face and another wound to her chin, both of which were caused by a sharp object. Rodgers also had cuts and bruising around her mouth, which were caused by premortem, blunt force trauma that was unlikely to have been caused by a fall. The evidence further established that Rodgers remained conscious for up to seven minutes after suffering the fatal chest wound and that she lived for up to fifteen minutes before finally succumbing to her injuries.
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
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,
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 mitigating and aggravating factors is not reviewable on appeal. The state further maintains that, to the extent that such a determination is reviewable, the evidence presented at the penalty phase hearing permitted the jury rationally to conclude that the aggravating factor outweighed any asserted mitigating factors. Assuming without deciding that the defendant’s claim is reviewable, we agree with the state that the evidence is sufficient to support the jury’s determination that the aggravating factor outweighed any mitigating factor or factors.
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 review of a jury’s determination with respect to the weighing of aggravating and mitigating factors in a specific case could be impossible in the practical sense. In State v. Rizzo,
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.
As we previously explained, the jury concluded that the defendant had proved by a preponderance of the evidence the existence of one or more mitigating factors, but it did not specify which factor or factors the defendant had proven. We conclude that, even if the jury had credited all of the mitigating factors advanced by the defendant, they were not so compelling that the jury was required to find that one or more of those mitigating factors outweighed the cruel, heinous or depraved manner in which the defendant had murdered Rodgers.
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 doubt that the aggravating factor outweighed the mitigating factors that the defendant had alleged.
In this opinion ROGERS, C. J., and KATZ and VERTE-FEUILLE, Js., concurred.
Notes
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,
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 to believe that the offense charged has been committed and that the accused person has committed it. The accused person may knowingly and voluntarily waive such preliminary hearing to determine 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,
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 guilt, or (2) before a jury impaneled for the purpose of such hearing if (A) the defendant was convicted upon a plea of guilty; (B) the defendant was convicted after a trial before three judges as provided in subsection (b) of section 53a-45; or (C) if the jury which determined the defendant’s guilt has been discharged by the court for good cause, or (3) before the court, on motion of the defendant and with the approval of the court and the consent of the state.
“(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 one or more aggravating factors set forth in subsection (i), the court shall sentence the defendant to death.
“(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,
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,
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 are unwilling to engage in any presumption with respect to the result of the guilt phase proceeding.
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 affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
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,
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,
Terry v. Ohio,
Miranda v. Arizona,
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. 102, 105,
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,
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,
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 he accompany them to the station; (16) the blunt and forceful manner in which the police communicated with the defendant and Wilson; (17) the force and intrusiveness of the Terry stop; (18) there was no inclement weather or other conditions that prevented the police from interviewing the defendant in his car, in one of the police cars at the scene, in the defendant’s yard or home or anywhere else other than the station; (19) specialized personnel were not required to conduct the defendant’s interview, and the defendant was interviewed by the same officers who detained him; (20) the defendant did not drive himself to the station but, rather, was transported to the station in a police car; (21) the defendant was forced to ride in the backseat rather than in the front seat of the police car; (22) the encounter occurred in front of the defendant’s residence; (23) the defendant was placed in a small interview room at the station where he was subjected to interrogation for a lengthy period of time; (24) the defendant never was told that he could leave the station prior to his interrogation; and (25) the defendant’s understanding was impaired by not having slept the previous night and by his use of crack cocaine.
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,
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,
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,
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 the bom alive rule merely because our statutes contain no express reference to it.
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,
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 recognized and applied by one or more courts of the state. Under this view, unless a particular common-law doctrine previously has been recognized expressly by the courts of this state, we may adopt the doctrine prospectively only, as if it did not exist at the time of the conduct at issue. We disagree with this view, which, subject only to the limitations of due process, has no support in our law or, as far as we know, the law of any other jurisdiction. Indeed, contrary to the position that Justice Zarella advocates, this court frequently has applied common-law principles of first impression in the then pending criminal case. See, e.g., State v. Skakel, supra,
See, e.g., United States v. Spencer, supra,
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,
Rather, Justice Zarella contends that our reliance on Swift is misplaced in light of our observation in Valeriano v. Bronson,
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 second degree when he abducts anotherperson” [emphasis added]); General Statutes § 53a-172 (a) (1) (“[a] person is guilty of failure to appear in the first degree when . . . while charged with the commission of a felony and while out on bail or released under other procedure of law, he wilfully fails to appear when legally called according to the terms of his bail bond or promise to appear” [emphasis added]); General Statutes § 53a-217 (a) (1) (“[a] person is guilty of criminal possession of a firearm or electronic defense weapon when such person possesses a firearm or electronic defense weapon and . . . has been convicted of a felony” [emphasis added]). The fact that there is no evidence whatsoever to indicate that the legislature intended to use the term “when” differently for purposes of § 53a-54a (a) than it did for all of the other criminal statutes in which that term is used defeats Justice Zarella’s assertion that the term is used in its temporal sense in § 53a-54a (a). Indeed, the construction that Justice Zarella urges is so lacking in merit that even the defendant has not advocated it, and we know of no court that has adopted such a construction, even though other states, including New York, have homicide statutes that are materially identical to our homicide statutes. In fact, courts in New York have applied the bom alive rule in the context of its homicide statutes. Thus, in People v. Hall, supra, 158 App. Div. 2d 76, the court applied the bom alive rule in affirming the defendant’s conviction under N.Y. Penal Law § 125.15 (1), which provides in relevant part that “[a] person is guilty manslaughter in the second degree when . . . [h]e recklessly causes the death of another person . . . .’’In Hall, the evidence established that the defendant had recklessly killed an infant who died approximately thirty-six hours after a premature cesarean birth necessitated by the defendant’s shooting of the infant’s pregnant mother. People v. Hall, supra, 71.
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 all these reasons, we reject Justice Zarella’s argument that recognition of the bom alive rule conflicts with, and therefore is barred by, the language of § 53a-54a.
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.,
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).
Although many of these fetal homicide statutes protect only viable fetuses, some are not so limited in scope and apply to all fetuses regardless of viability. See, e.g., Ala. Code § 13A-6-1 (3) (Cum. Sup. 2009) (“[t]he term [person], when referring to the victim of a criminal homicide or assault, means a human being, including an unborn child in útero at any stage of development, regardless of viability”); Cal. Penal Code § 187 (a) (Deering 2008) (“[mjurder is the unlawful killing of a human being, or a fetus, with malice aforethought”).
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 . . . closely followed Coke. ‘[T]he person killed must be a “reasonable creature in being and under the king’s peace,” at the time of the killing . . . .’
* * *
“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,
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., pp. 2404-10. Representative Gail K. Hamm asked Forsythe about the exact number of those states that had enacted such statutes, and Forsythe responded that approximately twenty-seven states had “changed their law by statute and, in effect, abolished the bom alive rule.” Id., p. 2412. Forsythe further responded that the courts of two states, including Massachusetts, “basically [held] that [they would not] apply the bom alive rule in the case of a viable fetus.” Id.
Roe v. Wade,
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 it as a separate case of murder . . . .’’Id. O’Brien thereafter acknowledged his agreement with Representative Farr’s characterization of the 2003 bill. Id.
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,
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 and pro-life advocates” in the aftermath of McMechen’s murder, without any concern for “the issue of whether to penalize a defendant for” the death of an infant who has been bom alive but who subsequently dies from injuries sustained in útero. Footnote 33 of Justice Zarella’s concurring and dissenting opinion. Justice Zarella’s contention fails not only because it leads to a bizarre result, but also because the legislature would have achieved the very same compromise if it had not limited the reach of P.A. 03-21 to fetuses that die in útero. In other words, extending the same protections to an infant who dies after being born alive would have had no effect on the compromise that had been achieved between the pro-choice and pro-life constituencies. We can think of no reasonable explanation, therefore, why the legislature would have crafted P.A. 03-21 in such a manner as to create a wholly unnecessary — and wholly irrational — lacuna in our homicide law. As we previously discussed, the only logical explanation for the legislative decision to limit the scope of P.A. 03-21 to fetuses that are not bom alive is that the legislature was well aware of the applicability of the bom alive mle to infants who die after being bom alive. As we also have discussed, this explanation is borne out by the relevant legislative history.
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 and then died after birth, was a ‘person’ under the murder and capital felony statutes. The court relied on similar murder statutes and the common law to rule that Antonia qualified as a ‘person’ because she was bom alive.” Id.
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. In the present case, however, it would be nonsensical to reject the rule as too narrow because, in doing so, we would be required to assume that the legislature intended to create an irrational statutory scheme, one pursuant to which it would be a class A felony to kill a fetus in the process of assaulting a pregnant woman and no crime at all to cause the death of a fetus that is bom alive but that subsequently dies from injuries sustained in útero. Justice Zarella’s only response to this untenable result is a non sequitur. He states that “[t]his court’s failure to recognize the bom alive rule . . . would not constitute a . . . ‘repudiation’ of the [bom alive rule similar to that of other states] because [the rule] has not heretofore been recognized in this jurisdiction and thus cannot be abandoned.” Our disagreement with Justice Zarella that the bom alive rule previously has not been recognized in this state notwithstanding, his response is beside the point; the issue of whether a court or courts of this state have recognized the rule in the past is irrelevant to the issue of whether this court should now decline to adopt the rule for the reason that it has been criticized and rejected by other states, that is, because it is too narrow. Under no circumstances is that a reason for us to reject the rule in light of the fact that our legislature already has criminalized the killing of a fetus in útero. In other words, the reason that other jurisdictions have rejected the bom alive rule as outmoded, namely, because it places an unnecessary limitation on the scope of the crime of homicide, has no applicability in this state, and, therefore, there is no basis for rejecting the rule. Thus, although the bom alive rule reasonably has been repudiated in other jurisdictions, Justice Zarella sets up the proverbial straw man in attacking the bom alive rule as outmoded, and, therefore, unnecessary, for purposes of this state’s homicide statutes.
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,
“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. As we previously explained, Justice Zarella’s contention flies in the face of overwhelming evidence to the contrary.
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,
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,
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,
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 to the issue of whether our murder statute contains the kind of temporal requirement that Justice Zarella says it does.
Contrary to the view expressed by Justice Zarella, our decision in Valeriano v. Bronson,
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,
The defendant urges us to invoke our supervisory authority over the administration of justice; see, e.g., State v. Padua,
“ [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,
“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,
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,
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,
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,
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,
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,
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,
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,
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,
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 twenty-five years and not more than life imprisonment. See General Statutes § 53a-35a (2); see also General Statutes § 53a-35b (“[a] sentence of imprisonment for life shall mean a definite sentence of sixty years, unless the sentence is life imprisonment without the possibility of release ... in which case the sentence shall be imprisonment for the remainder of the defendant’s natural life”). Furthermore, under our capital scheme, murder is a death penalty eligible crime; an assault of a pregnant woman that results in the termination of her pregnancy is not.
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 is transferred toward an entity that has yet to achieve personhood status . . . .” This argument also lacks merit. As Justice Schaller acknowledges, this court, in State v. Higgins, supra,
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— is in no sense unforeseeable or indefensible with reference to the law as it existed in 1998.
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,
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. . . .
“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 on the reasoning and holding of the Appellate Court in Guess, which had concluded that, when a defendant inflicts injuries on a victim who, upon being removed from life support, dies as a result of those injuries, the defendant proximately causes the victim’s death. State v. Guess, supra,
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,
In State v. Padua,
We note that the foregoing passage from the court’s decision was taken almost verbatim from State v. Anderson, supra,
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,
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,
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 factors in a capital case, and these states are guided by a variety of standards in performing that review. See, e.g., Williams v. State,
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.
Concurrence 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 should the defendant, Robert Courchesne, be convicted of capital felony at the guilt phase because the majority’s failure to consider those claims is contrary to the interests of every participant in the trial proceedings. Many of these claims pertain to matters on which the parties and the trial court undoubtedly will need guidance should a penalty phase proceeding transpire.
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.
Concurrence Opinion
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 the facts of this case,
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, and the rule simply persists from blind imitation of the past.” O. Holmes, “The Path of the Law,” Address at Boston University School of Law (January 8, 1897), in 10 Harv. L. Rev. 457, 469 (1897); cf. State v. Muolo,
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 (1987) (“As a result of . . . primitive knowledge of human life in útero, the health of the child in útero could not be established unless and until the child was observed outside the womb. . . . [L]ive birth was required to prove that the unborn child was alive and that the material acts were the proximate cause of death, because it could not otherwise be established if the child was alive in the womb at the time of the material acts.”); see also Commonwealth v. Cass,
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 foremost is that the court invades the legislative prerogative to define what is, and what is not, a crime, because the rule, as understood and applied by the majority, has the effect of amending the definition of a “person” under our murder statutes; see General Statutes § 53a-3 (1) (defining “person” as “a human being”); to include a fetus that is bom alive but subsequently dies from injuries inflicted in útero, thus making the killing of such a fetus a new substantive offense. This court has acknowledged that, “in light of established doctrines implicit in the separation of powers, the primary responsibility for enacting the laws that define and classify crimes is vested in the legislature . . . .” (Citations omitted.) State v. Joyner, 225 Conn. 450, 460,
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 a person under our murder and capital felony statutes but is not considered a person if it is not bom alive. Thus, a viable fetus that is fatally injured in útero may or may not be a person for purposes of prosecuting an accused for murder or capital felony depending on the entirely random fact of its status at the time of its death, which may depend on such unforeseen factors as how soon the injured mother receives medical attention, how quickly the medical staff is able to perform the delivery, and the accuracy of the observations and tests administered by the delivery team to determine if the baby is bom alive. This makes no sense whatsoever. Moreover, the majority’s focus on the status of the fetus at the time of its death is completely at odds with the underlying rationale of the bom alive rule, which considered whether the fetus was alive at birth only to establish its condition in útero at the time of the fatal injury. The majority thus severs the temporal connection between the criminal conduct and the status of the victim when the fatal injury was inflicted and allows pure happenstance to determine whether a perpetrator may be prosecuted for murder and subjected to the death penalty.
This, in turn, raises serious due process concerns regarding the right to fair notice
In summary, because the bom alive rule developed as a rule of causation and is no longer necessary due to advances in medical science that now permit a determination to be made regarding the health of a fetus, there is no evidentiary justification for its perpetuation. Accordingly, adoption of the rule will have the effect of amending the definition of “person” under our Penal Code to include a fetus that is fatally injured but subsequently bom alive. Amending our criminal statutes violates the separation of powers because it is well established that the legislature, not the court, has the undisputed authority to define crimes. In addition, the mle engenders confusion and threatens due process because it lacks logical consistency and deprives potential defendants of fair warning as to the consequences of their actions. The defendant in this particular case also will be deprived of fair notice because of the majority’s decision to apply the rule retroactively. In my view, these reasons strongly militate against the mle’s adoption.
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 and the victim’s status as a person, and that it is unaware of any other authority that requires one. I find this reasoning unpersuasive because an examination of the language of the murder statute, its relationship to other statutes, the authorities on which the majority relies and other authorities unequivocally demonstrate otherwise.
General Statutes § 53a-54a (a) 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 . . . .” There 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 this language. The use of the term “when” 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.
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,
The majority’s attempt to parse the statutory language by turning to the dictionary definition of the word, “when” in support of its assertion that no temporal nexus is required is unavailing. Webster’s Third New hitemationai Dictionary defines “when” in relevant part as “at or during the time that,” which unquestionably establishes that a temporal nexus must exist because the link created between the element of intent and the criminal
The majority also relies on four cases from other jurisdictions. These include Cuellar v. State,
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 rule in affirming a conviction under New York’s second degree manslaughter statute.
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
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 subsequently dies from those injuries.” (Emphasis in original.) Footnote 67 of the majority opinion. The majority thus reasons that “[fetal] homicide statutes broaden the class of victims protected thereunder by redefining that class, an innovation that bears no relevance to the issue of whether our murder statute contains the kind of temporal requirement that [this concurring and dissenting opinion] says it does.” (Emphasis added.) Id. The majority then concludes that, “because [the bom alive rule] now is viewed by those states [that have abolished it] as unnecessarily underinelusive with respect to the category of victims that it protects ... it would make no sense to reject the mle . . . without replacing it with a broader rule, namely, one that includes the killing of a fetus.” (Emphasis in original.) I agree that, insofar as the bom alive mle previously has been recognized in other states, the adoption of fetal homicide statutes in those states constitutes a repudiation, or abandonment, of the mle. Such statutes not only criminalize conduct that causes the death of a fetus, regardless of
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 200 years. Even giving the majority the benefit of the doubt, I submit that no such evidence exists.
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),
Anonymous
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
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.
The majority next claims that “[t]he bom alive mle has deep roots in our common law” and that it knows of “no reason . . . why the . . . rule would not have been accepted as the law of this state . . . just as [it] was accepted by virtually every other jurisdiction that had considered it.” I agree that the bom alive rule is derived from the common law of England and that
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,
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 enactment of the comprehensive Penal Code in 1969. Id., 95-96. Relying on reasoning similar to that which I have articulated in this opinion, we stated that (1) passing references to the rule in two prior cases were merely “part of a larger [passage] that addressed the dispositive issue in [those cases],” which had nothing to do with the year and a day rule; id., 91; (2) “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”; id.; (3) no other Connecticut decision had expressly “adopted and applied” the year and a day rule; id.; (4) even if the rule had existed in the common law of Connecticut prior to 1969, “adoption of the comprehensive [P]enal [C]ode in 1969 abrogated the common law and set out substantive crimes and defenses in great detail,” and, there having been no mention of the year and a day rule in the Penal Code, it had not been adopted; id., 92; (5) the language of the savings clause in General Statutes § 53a-4
I submit that Valeriano must serve as precedent in determining whether the bom alive rule is embedded in the common law of this state because the bom alive rule, like the year and a day rale, was a common-law rule of causation applied by English courts to determine liability in homicide cases. Accordingly, all of the reasons on which this court relied in rejecting the argument that the year and a day rule existed in Connecticut apply with equal force to the bom alive mle. These include that (1) no Connecticut court expressly has concluded that the infliction of injuries to a fetus that is bom alive but that subsequently dies from those injuries constitutes murder, (2) to the extent that the Superior Court and the Appellate Court referred to the rale in Anonymous and In re Valerie D., respectively, it was mentioned only in passing as part of a
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,
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 remarked in passing that the definition of “person” in the Penal Code should be expanded to include an unborn fetus because the bom alive rule had become outmoded and should be abolished in Connecticut. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2003 Sess., p. 424, remarks of O’Brien; id., pp. 663-66, written testimony of Forsythe; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2002 Sess., pp. 2403-2404, remarks of Forsythe. Forsythe admitted, however, that he was a resident of Illinois and twice explained that he was “not familiar with” or “aware of the intricacies of Connecticut law . . . .” Conn. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2002 Sess., pp. 2406, 2407. Moreover, no member of the committee or General Assembly referred to the bom alive rule during the public hearings or legislative debates on the matter. The legislature understandably was concerned with the much narrower question of whether and how to penalize a perpetrator for causing the death of an unborn fetus. Furthermore, any positive discussion of the bom alive rule would have been inconsistent with the legislature’s express unwillingness
In reaching the opposite conclusion, the majority takes what can only be described as extreme liberties in interpreting the legislative history. For example, the majority unequivocally declares, in sometimes overblown language, that “the legislature opted to preserve the bom alive rale,” “our legislature has decided to retain the rale,” “judicial abrogation of the bom alive rale would lead to a result that is both unprecedented and absurd,” “the obvious intent of the legislature [in enacting the aggravated assault statute was] to classify as a homicide conduct that causes an infant to die after being bom alive as a result of injuries that were inflicted in útero,” failing to apply the bom alive rale in this case would amount to a “perverse scheme” to decriminalize the infliction of fatal injuries on a fetus that is subsequently bom alive, the legislature was “carving out an exception” to the bom alive rule when it enacted the aggravated assault statute, and the legislature recognized that “an infant who is bom alive but subsequently dies from injuries sustained in útero already is protected by virtue of the operation of the bom alive rule, pursuant to which the infant’s death is treated as a homicide.” Even more misleading is the majority’s statement that, “as a consequence
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. McDonald (“this bill arises out of, has generally become known as Jenny’s bill and it deals with the situation where a woman is assaulted while pregnant and the assault causes her pregnancy to terminate without a live birth”); id., p. 1010, remarks of Senator Donald E. Williams, Jr. (“Jenny’s law . . . refers to a specific case [involving] a young woman . . . [who] was pregnant at [the] time [she was shot and murdered]”). Consequently, the bills and those who testified at the committee hearings focused exclusively on a remedy for the killing of an unborn fetus. In restricting application of the statute to the death of such a fetus, the legislature was not acknowledging that a penalty presently exists for the killing of a fetus that is bom alive and subsequently dies but, rather, was directing its attention to the specific issue at hand and expressing its intention not to address circumstances beyond those giving rise to the statute ultimately enacted. The majority’s declaration that the existence of the bom alive mle was the “only . . . possible reason why the legislature opted to include within the protection of [the aggravated assault statute] only those fetuses that are not bom alive”; footnote 54 of the majority opinion; thus misses the mark completely and raises questions as to the majority’s knowledge and understanding of the legislative history of the fetal homicide and aggravated assault bills.
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. Joint Standing Committee Hearings, Judiciary, Pt. 8, 2002 Sess., pp. 2425-26,2428, remarks of Sister Suzanne Gross, on behalf
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. 1014, remarks of Senator Toni Nathaniel Harp (“this bill goes a long way in reconciling some of the contradictions that may appear in the minds of those around women’s right to choose”); 46 H.R. Proc., Pt. 7, 2003 Sess., p. 1982, remarks of Representative Jefferson B. Davis (stating that bill was “reasonable compromise”). To placate pro-life advocates, a new offense was created in the aggravated assault statute that increased the penalty for the assault of a pregnant woman by elevating the crime from a class B to a class A felony if it results in the termination of her pregnancy. To mollify pro-choice advocates, the legislature declined to make the new offense a crime against the unborn fetus because this would have granted the fetus legal rights independent of the mother. Thus, the essence of the compromise was to increase the penalty for an assault on a pregnant woman that results in the termination of her pregnancy without recognizing the fetus as a separate legal entity. The legislature accomplished this delicate balance by omitting any reference to the fetus in the statute, by using language emphasizing that the crime is against the woman and by naming it, “An Act Concerning Assault of a Pregnant Woman.”
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 distinguishing the bom alive rule from penalties imposed for the death of a viable or nonviable fetus by asking whether “the bill ... is actually going from conception, but it doesn’t treat it as a separate case of murder is that what you're saying.'' (Emphasis added.) Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2003 Sess., p. 426. O’Brien responded: “That’s right. It’s simply talking about the woman and her pregnancy, a pregnant woman.” Id. The discussion thus concerned details relating to the aggravated assault statute, not 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 that “[c]riminal 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. . . . [UJnless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.” (Internal quotation marks omitted.) State v. Salamon,
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,
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 just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal.” O. Holmes, supra, 10 Harv. L. Rev. 469. Having gotten the dragon out of his cave and examined the roots of the bom alive rule, and having come to understand its creation as an evidentiary tool that was used to determine whether the fetus was alive at the time of the criminal conduct, I believe that it is clear that advances in
See State v. Courchesne,
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,
In State v. Lamy,
“[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,
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,
“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,
State v. Cotton,
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,
The majority also relies substantially on the outmoded rationale of State v. Cotton, supra,
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,
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 of intent and the status of the victim at the time of the criminal act. My view that Connecticut should not adopt the bom alive rule is based on the fact that the Penal Code precludes it, and, even if this was not the case, the rule has become, over time, a substantive element of the crime in which the temporal connection between criminal intent and the criminal act has been severed. I thus believe that, because the bom alive rule never has been adopted in Connecticut, a decision by this court to refrain from adopting the rule in the present case neither expands nor narrows the class of criminals currently subject to prosecution for the killing of a fetus in this state.
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,
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,
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.
“The 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. . . .
“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,
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,
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,
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. Anonymous (1986-1), supra,
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 unsupported by the legislative history, which demonstrates, without question, that the legislature was attempting to achieve a compromise between pro-choice and pro-life advocates in the context of that unique situation and was not concerned with the issue of whether to penalize a defendant for inflicting fatal injuries on a fetus that is subsequently bom alive.
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.
The hearing on the aggravated assault bill produced approximately eleven pages of transcribed testimony from six witnesses. Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 2003 Sess., pp. 424-26, 461-66, 477. The only witness referring to the bom'alive rule was O’Brien, who stated in his initial presentation that the proposed legislation continued “Connecticut’s adherence to [the] medically obsolete . . . bom alive rule,” which had been created “as a rule of evidence.” Id., p. 424. O’Brien later suggested several changes to the proposed legislation. See id., p. 425. Following these remarks, and in response to a question regarding whether there should be any limitation on the age of the fetus at the time of the assault on the pregnant woman, O’Brien replied that the law should “apply at any stage of gestation. Essentially, that’s what Connecticut has on the books, or at least by common law today. The 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 to prove that it’s a person. It’s got to take its first breath.” Id., p.426. Representative Robert Farrthen asked: “Butthe [proposed legislation] ... is actually going from conception, but it doesn’t treat it as a separate case of murder is that what you’re saying.” Id., remarks of Representative Robert Farr. O’Brien responded: “That’s right. It’s simply talking about the woman and her pregnancy, a pregnant woman.” Id. Representative Fan-made one other minor comment, also unrelated to the bom alive rule, before the next witness testified. Id. On the basis of this testimony, it is abundantly clear that there was no discussion of the bom alive rule during the two judiciary committee hearings, as no committee member directed a single question to any witness regarding the meaning or relevance of the bom alive rule under Connecticut law. Similarly, there was no discussion of, or reference to, thé bom alive rule during subsequent debate on the aggravated assault bill in the House and Senate chambers. Thus, the majority’s repeated and unsupported- assertions that the legislature considered the bom alive rule because of the few unsolicited comments made by Forsythe and O’Brien at the hearings can be described only as a misrepresentation of the record.
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.
With respect to State v. Lamy, supra,
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,
Just as I stated in State v. Courchesne, supra,
Concurrence Opinion
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 opportunity to prove that Antonia Rodgers (Antonia) was alive at birth. With respect to these conclusions, I generally agree with and, in that regard, join in Justice Zarella’s concurring and dissenting opinion concluding that the bom alive rule is antiquated, illogical and incoherent, that Connecticut’s murder statute requires that a victim be a “person” at the time of the criminal act and that the rule of lenity counsels us to resolve any ambiguity in our murder and capital felony statutes in favor of the defendant. I write separately to emphasize that, by virtue of the majority’s conclusions, the defendant has been denied the due process required by the fourteenth amendment to the United States constitution, and further, will be subject to double jeopardy upon retrial.
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.
I
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,
“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,
“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,
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.,
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] § 53a-3 (1)” and that, should the trial court determine to the contrary, such a novel interpretation could not apply retroactively to the defendant without violating his constitutional rights to notice and fair warning. In denying the defendant’s motion to dismiss, the trial court, Damiani, J., concluded “that the murder and capital felony statutes as applied to the facts of [this] case are not ambiguous” such that the rule of lenity would apply. State v. Courchesne,
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,
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.
The only acknowledgment as to the existence of the bom alive rule in the history of Connecticut criminal jurisprudence
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 be subjected to any greater penalty because Rodgers was eight and one-half months pregnant than if she had not been pregnant, because the majority is “unwilling to presume that the legislature intended such a result, especially in light of the
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
In apparent acknowledgment that the bom alive rule is being newly recognized in Connecticut today by virtue of this court’s decision in the present case, the majority disregards the defendant’s vagueness argument, and all of the law that I have cited, and instead relies heavily on the United States Supreme Court’s decision in Rogers v. Tennessee, supra,
The United States Supreme Court next stated an unremarkable point, namely, that “[c]ommon law courts frequently look to the decisions of other jurisdictions in determining whether to alter or modify a common law rule in light of changed circumstances, increased knowledge, and general logic and experience.” Id., 464. It nevertheless recognized, consistent with the vagueness jurisprudence that I have cited in this opinion, that as a general rale, for purposes of evaluating challenges to retroactive applications of those common-law courts’ holdings in criminal cases, defendants should not be charged with predicting their home courts’ future holdings on the basis of those courts’ potential utilization of extrajurisdictional precedent. “Due process, of course, does not require a person to apprise himself of the common law of all [fifty] [s]tates in order to guarantee that his actions will not subject him to punishment in light of a developing trend in the law that has not yet made its way to his [s]tate.” (Emphasis added.) Id. The court nevertheless allowed that an exception was appropriate in limited circumstances, that is, when there existed an overwhelming trend in the law of other jurisdictions toward an obviously more enlightened approach. In such circumstances, the court reasoned, that trend could be taken into account as a factor when determining whether a state court’s decision to join that trend was predictable: “At the same time, however, the fact that a vast number of jurisdictions have abolished a rule that has so clearly outlived its purpose is surely relevant to whether the abolition of the rule in a particular case can be said to be unexpected and indefensible by reference to the law as it then existed.” Id.
“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 of the [s]tate of Tennessee. The rule did not exist as part of Tennessee’s statutory criminal code. And while the Supreme Court of Tennessee
Applying the foregoing holding to the present matter, the majority concludes that the defendant’s due process claim fails because its recognition of the bom alive mle was not unexpected and indefensible with reference to the law that had been expressed prior to the defendant’s conduct.
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,
In State v. Higgins, supra,
In the present case, however, we are not concerned with the transfer of the intent to kill an adult to
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,
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,
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
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,
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,
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 dismisses as seeking “a sort of rough justice” is nothing less than advancing the values of fundamental fairness. The majority purports to adhere to these values despite holding the defendant to a standard of, in essence, legal clairvoyance as to this court’s recognition of the bom alive rule some twelve years after the criminal conduct at issue, resulting in the upholding of a death penalty charge, while simultaneously excusing the state’s failure to predict the direction of the law that clearly was signaled by Guess. If advocating for constitutionally required fundamental fairness in both instances amounts to rough justice, then I am in favor of it.
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,
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
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,
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 notice that the death of her fetus would result in an additional charge of murder. Obviously, those issues are entirely distinct, and the defendant raises no claim that prosecuting him for the murder of Rodgers offends due process.
Because the evidence was insufficient to convict and, therefore, the proper remedy is a judgment of acquittal, the majority’s remand of the case for a new trial violates the defendant’s rights against double jeopardy. “The [djouble [¡jeopardy [cjlause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” Burks v. United States,
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 statutory construction with which I take issue, but the fact that the most powerful of those tools either reveal nothing as to what our legislature intended or, worse, suggest a conclusion contrary to the majority’s conclusion.
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 from achieving precisely the same result by judicial construction.” (Citation omitted; internal quotation marks omitted.) Bouie v. Columbia, supra,
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 rule existed before the murder and capital felony statutes were enacted and continues to be in effect after their enactment.” State v. Courchesne, supra,
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,
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,
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,
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,
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,
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 account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited,” that “[d]ue process does not require statutes to provide a laundry list of prohibited conduct . . . [and that laws] may be general in nature so as to include a wide range of prohibited conduct.” (Internal quotation marks omitted.) I acknowledge that, in many instances, “[uncertain statutory language has been upheld when the subject matter would not allow more exactness and when greater specificity in language would interfere with practical administration.” 1 W. LaFave, supra, § 2.3 (c), p. 151. The inability to be precise and the desire to avoid extensive, limiting descriptions that may reduce flexibility in the application of a statute, however, simply are not real concerns in the drafting of a provision that defines who will be considered a person for purposes of the law of homicide. In short, if the legislature had intended to incorporate the bom alive rule into Connecticut’s statutory definition of person, it easily could have done so, like the drafters of the Modal Penal Code and the New York Revised Penal Law, by the addition of a mere seven words: “who has been bom and is alive.” The only murder prosecutions that possibly could be precluded by the addition of those words are the prosecutions that the majority has determined the legislature unequivocally intended to foreclose, that is, prosecutions for the deaths of unborn fetuses. Because our code was modeled after the Model Penal Code and the New York Revised Penal Law, our legislators most certainly were aware of the option of using the more precise language. The majority offers no persuasive reason why the legislature would decline to do so while simultaneously intending to incorporate the rule that the omitted language so clearly would have conveyed.
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,
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 v. Latour,
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,
In In re Valerie D., 25 Conn. App. 586, 591-92,
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.,
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,
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,
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,
The majority’s desperation is evident from its suggestion that, consistent with due process jurisprudence, the defendant should be constructively charged not only with having read between the lines of a Superior Court decision to discern what rule would apply in a related, but distinct situation that was not before the court and that the decision never discussed, but also with the underlying rationale of the holdings of several extrajurisdictional cases cited within that Superior Court decision. It is hardly surprising that the majority cites no authority for this incredible proposition.
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,
Although additional language from DeFrancesco on its face suggests, contrary to Bouie, Indrisano and the several United States Supreme Court decisions cited in the main text of this concurring and dissenting opinion, that our sister states’ jurisprudence concerning their statutes is an appropriate source of fair warning as to the meaning of a Connecticut statute, closer examination of the source of that language clarifies that it should not be read so broadly. Citing to State v. Proto,
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,
See, e.g., People v. Hall, 158 App. Div. 2d 69,
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,
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,
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,
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,
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,
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, would not create a gap in the legislative scheme in the future. As to future defendants, the majority opinion clearly provides an authoritative judicial gloss.
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,
Additionally, I disagree with this court’s conclusion in Miranda II that retroactive application of Miranda I clearly was sanctioned by the then recent holding of Rogers. Specifically, the conclusion in Miranda I had no support in the relevant statutory language or legislative history, and the extrajurisdictional precedent relied upon, even if it was analogous, hardly represented an overwhelming trend. In short, I disagree with the conclusion in Miranda II, purportedly reached in reliance on Rogers, that retroactive application of any decision arrived at by “employ[ing] the ordinary tools of statutory construction”; id., 106; including reference to inapposite extrajurisdictional precedent at odds with the language of the statute at issue, necessarily comports with due process. I have searched Rogers in vain, and have found no language sanctioning such an unrestrained approach. As noted previously in this concurring and dissenting opinion, when state and federal jurisprudence on federal due process conflict, the federal jurisprudence controls.
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,
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,
In Higgins, the defendant had been sentenced to life imprisonment. State v. Higgins, supra,
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,
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.