*1 offering suggestions. occasional As the factual finding of an may administrative this court agency, “determine [only] whether there substantial evidence in the [was] administrative support record to the agency’s findings of basic fact and whether the conclusions drawn from those facts reasonable.” (Internal quotation [were] marks omitted.) Hogan Dept. Families, Children & 545, 561, 290 Conn. depart A.2d 1213 (2009). The ment does not contend that there was evidence to the contrary or that the board’s conclusion drawn from the evidence was unreasonable. I Accordingly, conclude properly that the trial court affirmed the decision of employees board because the satisfy did not requirements of either 5-270 (g) (2) § or (3).
I respectfully therefore dissent. STATE OF CONNECTICUT v. ROBERT COURCHESNE
(SC 17174) Rogers, X, Norcott, Katz, Palmer, Vertefeuille, C. Schaller, Zareila and Js.* * listing justices seniority reflects their status on this court as of argument. the date of oral *4 officially
Argued March June released public Holdridge, with defender, assistant John public Rademacher, assistant whom was Mark appellant (defendant). for the defender, attor- assistant state’s Scheinblum, senior Robert J. Connelly, ney, A. brief, were John whom, on supervisory attorney, assis- EvaLenczewski, state’s appellee (state). attorney, tant state’s *5 Opinion p.m. September approximately 11 on At PALMER,J. and an Courchesne, defendant, Robert 15, 1998, seated in were Rodgers, Demetris acquaintance, Bank of Webster lot parking in the car defendant’s Avenues in Wigwam Chase and the comer of located on the defendant debt that drug over a Waterbury, arguing upset became Rodgers When boyfriend. Rodgers’ owed pay the was unable to defendant that the upon learning knife that kitchen a serrated defendant took debt, the with it Rodgers stabbed repeatedly car and kept he in his approximately who was Rodgers, back. her chest and escape managed pregnant, months and one-half eight collaps- before a short distance and to mn from the car The defendant her wounds. a result of in the street as ing later, minutes fifteen in his car. About fled the scene Shortly thereafter, Rodgers. discovered passerby for emer- and called arrived at the scene officer police Rod- attempted to revive who personnel, medical gency Waterbury transported then was Rodgers gers. dead. pronounced where she Hospital (hospital), an physician performed department emergency An delivered Rodgers on cesarean section emergency was deliv- After Antonia baby, Rodgers.1 Antonia her subject to further resuscita- immediately was ered, she Antonia support. on life placed efforts and then tion at which forty-two days, support on life remained removal, Within hours of support life was removed. time The cause of death was pronounced dead. Antonia was which she had suffered brain, to her oxygen lack of of her mother. as a result of the death útero in con- apprehended charged The defendant was Specifi- and Antonia. Rodgers nection with the deaths with two counts charged defendant was cally, the 53a-54a (a)2 General Statutes § murder in violation of Rodgers Rod as Antonia and Demetris refer to Antonia We hereinafter opinion. Rodgers throughout gers as this person part: “(a) provides in relevant A § 53a-54a General Statutes person, when, of another guilty intent to cause the death of murder person person . . .” of a third . the death of such or he causes
628 killings Rodgers Antonia,3 for the intentional of one capital felony count of in violation of General Statutes to 53a-54b for the murder of two or (Rev. 1997) (8)4 § more in a persons single transaction, the course of capital felony one count of in violation of 53a-54b (9)5 § person years for the murder of a under sixteen of age, namely, court, Damiani, J., Antonia. The trial held a probable cause in accordance with article hearing first, by of the state constitution, amended article § amendments,6 seventeen of the and General Statutes 54-46a (a),7 following probable which the court found § 3 charge respect predicated alleged murder of Antonia was theory intent, is, defendant, on a transferred with the intent Rodgers, opinion. to kill 2 also killed Antonia. See footnote of this 4 (Rev. 1997) provides part: § General Statutes to 53a-54b in relevant “A person felony guilty capital any following is of a who is convicted of of the persons (8) ... murder two or more at the same time or in the course single of a transaction . . . .” Courchesne, 537, 539, (2003), In 262 Conn. 816 A.2d 562 we incorrectly 53a-54b, by § stated that the 1997revision of as amended Public 98-126, 1, applicable purposes § Acts No. was the statute for of the defendant’s case. Public Act 98-126 did not become effective until October 1, 1998,approximately two weeks after the defendant’s commission of the charged present opinion § crimes case. All references to 53a-54bin this September 15, are to the 1997 revision—the statute effect on 1998— unless otherwise indicated. provides (Rev. 1997) part: § to General Statutes 53a-54b in relevant “A felony person guilty capital any following of a who is convicted of of the person years (9) age.” ... murder under sixteen first, 8, Connecticut, by § Article of the constitution of as amended article amendments, provides part: person of the seventeen relevant “No shall any crime, punishable by imprisonment, be held to answer for death or life probable upon hearing proce unless cause shown at a in accordance with prescribed by dures law . . . .” first, 8, Although Connecticut, § article of the constitution of as amended by amendments, by article seventeen of the was amended further article twenty-nine amendments, twenty-nine article of the amendments did provision securing not amend the in article seventeen of the amendments probable punishable right hearing involving cause in cases crimes by imprisonment life or death. (a) provides: person charged state, § General Statutes 54-46a “No jury prior May 26,1983, put grand who shall has been indicted be plea any punishable by imprisonment or held to trial for crime death or life preliminary hearing probable unless the court at a determines there is cause had committed to believe that the defendant cause Thereafter, charged.8 with which he crimes *7 guilt with to the jury respect waived trial defendant a a by tried and elected to be phase proceedings of the West, which consisted of panel judge (panel), three panel the defen- D’Addabbo, Js. The found and Cofield court, and, thereafter, all the trial counts, dant on guilty penalty phase hearing a D’Addabbo, J.,9 conducted jury (Rev. a in with General Statutes before accordance penalty the At the conclusion of 1997) to 53a-46a.10 § charged and that the accused to believe that the offense has been committed may voluntarily person knowingly person and has committed it. The accused preliminary probable hearing such to determine cause.” waive specifically probable that the The trial court found cause to believe had of the four crimes with which he had been defendant committed three capital felony charged, namely, both subdi the murder of Antonia and under respect (9) 53a-54b; finding (8) § and of the court made no to visions Courchesne, charge concerning Rodgers; see the the murder of State Sup. 63, 77, 767 (1999) (“probable Conn. cause is found as to counts A.2d 699 any two, information”); presumably of conviction three and four because imprisonment charge alone a sentence of or on that could not lead to life penalty. Const,., probable (securing right See XVII the death Conn. amend. any by hearing punishable imprisonment). death or life cause crimes Nevertheless, probable determining in was believe that that there cause to capital felony by “murderpngj the defendant had crime of committed the persons single . . . two or more at the same time or the course of a transaction”; necessarily (Rev. 1997) (8); § General Statutes 53a-54b it probable that there to believe had determined cause that the defendant Rodgers. Courchesne, supra, murdered See 76. 9Judge presiding judge judge D’Addabbo as the of three also served panel during guilt phase proceedings. (Rev. provides: 1997) “(a) person General Statutes shall § 53a-46a A subjected capital penalty felony only hearing be of death for a if a provisions is held in accordance of this with the section. purpose “(b) determining imposed For the sentence to be when a pleads guilty capital felony, judge defendant is convicted or to a or presided judges guilty plea who at whom the the trial or before was entered separate any hearing mitigating shall conduct a to determine the existence of concerning character, background history, factor or the defendant’s crime, any aggravating nature circumstances of the factor set forth (i). hearing stipulates Such if subsection shall not be held the state aggravating (i) none of the set forth in factors subsection of this section any hearing (h) or that exists factor set forth in subsection exists. Such (1) jury shall be conducted which defendant’s before determined the phase jury healing, special verdict, returned fmd- jury guilt, (2) impaneled purpose hearing (A) or before for the of such if upon plea guilty; (B) the defendant was convicted the defendant was judges provided (b) convicted after a trial before three in subsection 53a-45; jury (C) guilt section or if the which determined the defendant’s has discharged good cause, court, (3) been the court for or before the on approval motion of the defendant and with the of the court and the consent of the state. “(c) hearing In such the court shall disclose to the defendant or his counsel any presentence report may all material contained in which have been prepared. presentence No information from the defendant shall withheld any determining mitigating aggravating be considered the existence of or Any any may mitigating presented factor. information relevant to factor be defendant, regardless admissibility either or the state of its under governing matters, the rules admission of evidence in trials of criminal but *8 admissibility any aggravating the of information relevant to of the factors by (i) governed governing set forth in subsection shall be the rules the admission of evidence in such trials. The state and the defendant shall be permitted any hearing given to rebut at information received the and shall be opportunity present argument adequacy fair to as to the of the information to any mitigating aggravating establish the existence of or factor. The burden any establishing aggravating (i) of of the factors set forth in subsection shall establishing any mitigating be on the state. The burden of factor shall be on the defendant. “(d) determining mitigating concerning In whether a factor exists the character, background history, defendant’s or or the nature and circum- crime, pursuant (b) section, jury or, stances of the to subsection of this the jury, particular if there is no the court shall first determine whether a factor character, concerning background history, the defendant’s or or the nature crime, by evidence, and circumstances of the has been established mitigating nature, and shall determine further whether factor is in considering Mitigating all the facts and circumstances of the case. factors capital felony are such as do not constitute a or defense excuse for the of convicted, which, mercy, which the defendant has been but in fairness and may tending degree be considered as either to extenuate or reduce the of culpability his or blame for the offense or to otherwise constitute a basis for a sentence less than death. jury or, “(e) jury, special The if there is no the court shall return a setting findings any verdict forth its as to the existence of factor set forth any (h), aggravating in subsection the existence of factor or factors set forth any (i) aggravating outweigh in subsection and whether factor or factors any mitigating pursuant (d). factor or factors found to exist to subsection jury “(f) or, jury, (1) If if there is no the court finds that none of the exist, (h) (2) aggravating factors set forth in subsection one or more of the (i) (3) (A) mitigating factors set forth in subsection exist and no factor (B) by mitigating outweighed exists or one or more factors exist but are capital the defendant’s conviction of respect to ing, of an felony (8), aggravat- under 53a-54b the existence § had factor, that the defendant committed namely, ing especially heinous, depraved cruel or the offense in an (i), aggravating set in the court shall one or more factors forth subsection to death. sentence defendant any jury, jury or, (1) “(g) If the is no the court finds if there (h) exist, (2) aggravating none of the factors set forth in subsection or (i) aggravating (3) set forth exists or one or more factors in subsection (i) mitigating factors set exist and one or more factors forth in subsection exist, aggravating (i) but the factors set forth subsection do one or more factors, impose outweigh mitigating more the court shall not the one or imprisonment possibility of of life without the release. sentence impose “(h) of death on defendant The court shall not sentence special verdict, jury or, jury, is no the court finds if the if there (1) provided (e), under that at time of the offense he was subsection significantly impaired age eighteen years capacity (2) his or mental was ability requirements signifi- to conduct law was or his conform his impaired cantly impaired a defense not so either case as constitute but criminally 53a-8, prosecution (3) was liable under sections 53a- or he offense, another, which but his 9 and 53a-10 for the was committed relatively minor, although participation in not so minor such offense prosecution reasonably (4) he could as to constitute a defense to or foreseen in the of commission of the offense have that his conduct course cause, grave which he would or would create a risk of was convicted causing, person. death another “(i) aggravating to be be factors considered shall limited to during following: (1) The defendant committed the offense the commission attempted of, during flight or from the commis- or commission the immediate *9 of, attempted felony previously or a and he had been sion commission felony; (2) convicted of or the defendant committed the offense the same having two or after been convicted of more state offenses or two or more or more and one federal offenses or of one state offenses or more federal year penalty imprisonment which a one offenses each of of more than may imposed, be which offenses were committed on different occasions injury bodily upon which infliction of another involved the serious person; (3) in or the defendant committed the offense and such commission knowingly person grave risk of death to another in addition to created offense; (4) victim of or committed in an defendant the offense especially depraved manner; procured heinous, (5) the cruel or or defendant by payment, promise payment, the commission the offense or of of of anything pecuniary value; (6) of or the defendant committed the offense as receipt, expectation receipt, anything or in consideration for the of of pecuniary value; (7) the with an of or defendant committed offense weapon, in section assault as defined 53-202a.” opinion throughout § Allreferences this are to revision to 53a-46a the 1997 unless otherwise indicated. 632
manner within the meaning (i) of 53a-46a (4),11 § beyond a reasonable doubt that the finding aggravating any outweighed potential factor factor or mitigating factors. In panel’s accordance with the finding guilt jury’s and the trial special verdict, court, D’Addabbo, rendered J., judgment guilty sentenced the defen- dant to death.12 appeal court,13
On
to this
the defendant challenges
panel’s
finding
guilt
and his death sentence. With
respect
phase
to the
guilt
proceedings,
claims,
he
alia,
improperly
inter
that the trial court
(1) denied his
suppress
motion to
his written confessions and other
evidence
him to
linking
murders,
denied his
(2)
capital felony
motion to dismiss the murder and
charges
relating to the death of Antonia because the court
improperly invoked the common-law bom alive rule14
11
Courchesne,
537, 542, 559,
(2003),
In State v.
262 Conn.
denied to the felony relating capital charges murder and on the predicated lawfully could be Antonia death of permitted the intent, and (4) of transferred doctrine the doc- mle and the bom alive under proceed state to under rights of his in violation intent of transferred trine of the United post facto clauses and ex process the due claims defendant addition, In States constitution. recognized properly court if the trial that, even of our purposes alive rale the bom existence of to estab- insufficient evidence was Code, (1) Penal was, that Antonia doubt beyond a reasonable lish within the “person” and, therefore, bom alive fact, felony stat- capital and murder of this state’s meaning the bom integration” “novel the state’s utes, (2) embodied principle intent the transferred alive rule and to fair right his constitutional violated (a)15 53a-54a § death of respect to the conduct notice that his felony stat- capital the murder and Antonia fell within proceed- of the penalty phase respect With to the utes. alia, (1) claims, inter the defendant ings, beyond a reasonable prove was insufficient evidence in an Rodgers the murder doubt that he committed manner” within depraved or “especially heinous, cmel jury reason- (2) (i) (4), of 53a-46a meaning § factor aggravating found that the ably could not have factors.16 factor or any mitigating outweighed opinion. See footnote of this penalty to the claims related raises numerous additional The defendant phase proceedings. claims because We do not address some of these of the any subsequent penalty phase hearing. likely they With arise at are not possible claims, they may remaining although at a respect arise hearing, subsequent penalty phase not to consider them unless we elect underlying guilty until, upon remand, is found the defendant proceed capital felony charge To otherwise a sentence of death. and receives likely, penalty phase hearing require is us to determine that would presume only that the reach if we also were conclusion that we could capital underlying likely guilty offense. We to be found defendant *11 follow, reject
For the reasons that we the defendant’s phase guilt penalty phase claims and the claims that panel we address. We nevertheless conclude that the applied evidentiary standard in wrong finding beyond state had established a reasonable doubt Specifically, panel that Antonia was bom alive. improperly whether, failed to consider in accordance Guess, with State 244 Conn. 764, 780, 715 A.2d Antonia was brain at (1998), dead the time of her delivery due to the irreversible cessation of brain func- circulatory tion even her though respiratory sys- and forty-two tems were maintained artificial means for days after delivery. respect her with Accordingly, murder out of the death of Antonia charge arising both capital felony predicated all of which are charges, on the that, state’s contention because Antonia was bom alive, person she was a within the of our meaning Code, Penal we conclude that the defendant is entitled to a new trial at required which the state will be prove that Antonia was not brain dead at the time she was bom. If, upon retrial, the defendant is found guilty capital felony of the charge concerning the murder of Rodgers and Antonia in the course of the same transac- tion, the defendant penalty also entitled to a new phase hearing. Finally, we affirm the defendant’s con- viction for the murder Rodgers.
I
SUPPRESSION CLAIMS
The defendant first claims that
improp-
the trial court
erly denied
suppress
his motion to
certain statements
police
that he made to the
implicating himself in Rod-
gers’ murder
violation of his
under
rights
fourth,17
unwilling
engage
any presumption
respect
are
to the result of
phase
guilt
proceeding.
provides:
The fourth amendment to the United States constitution
“The
people
right
persons, houses, papers,
effects,
to be secure in their
against
seizures,
violated,
unreasonable searches and
shall not be
and no
issue,
upon probable cause, supported by
warrants shall
but
oath or affirma-
United
fourteenth19 amendments
eighth18 that the
contends
defendant
States constitution.20
that he was
rejected his claims
improperly
trial court
*12
exceeded the
police,
the
that
the seizure
seized
that
that, following
stop,
stop
a
and
Terry21
bounds of
accompany
police
the
voluntarily
he
not
consent to
did
questioning.
Waterbury police department
to the
contrary
the conclu-
to
contends,
The
further
defendant
constitu-
fruits of these
court,
the trial
sion of
written
his oral and
improprieties,
including
tional
murdering
Rod-
he confessed
which
statements
suppressed.
disagree.
be
We
must
gers,
necessary to
resolution
following facts are
our
The
The defendant
suppression claims.
of the defendant’s
and written
suppress
motion
all oral
state-
filed a
which
police
he had made to the
he
ments that
—in
murdering Rodgers
confessed
allegedly
—on
been
that those statements had
obtained ille-
ground
court, O’Keefe, J.,
the trial
conducted
gally. Thereafter,
place
persons
tion,
particularly describing
searched,
to be
and
and
things
or
to be seized.”
18
provides:
eighth amendment
to the United States constitution
The
required,
imposed,
fines
nor
bail shall not be
nor excessive
cruel
“Excessive
punishments
and
inflicted.”
unusual
19
applicable
through
eighth
and
amendments are
to the states
The fourth
process
United
clause of the fourteenth amendment to the
States
due
970,
See,
Tuilaepa
967,
e.g.,
California,
114 S.
v.
512 U.S.
Ct.
constitution.
Ohio,
(1994) (eighth amendment); Mapp
2630,
2d
v.
367
129 L. Ed.
750
U.S.
643,
1684,
(fourth amendment).
655,
(1961)
Ct.
L. Ed. 2d
81 S.
6
1081
20
7,
first,
rights
§§ 8
also asserts that his
under article
and
The defendant
9, of
were violated. Because the defendant has
the Connecticut constitution
separate
analysis,
provided
his
a
state constitutional
we deem
state
See,
Simpson,
634,
e.g.,
286 Conn.
constitutional claim abandoned.
n.17,
(2008).
651
A.2d
945
449
21
Ohio,
1,
Terry
1868,
(1968).
S. Ct.
L. Ed.
Pelosi, Kennelly told the defendant that he wanted to speak to him police at the station about Rodgers’ death and asked him if he would be willing do so. Pelosi further testified that none of the officers in uniform, no were drawn guns they approached when the defen- vehicle, dant’s the defendant was not told that he was under arrest, he was not handcuffed or otherwise restrained. Pelosi described the defendant’s demeanor “very quiet, calm . . . . looked worried, con- [H]e cerned.” Pelosi also stated that the defendant did not appear to be under the influence of alcohol or drugs. Kennelly then drove the defendant police station for questioning. At some point, Pelosi asked Wilson if she accompany would him to the station for ques- tioning. replied She that she would and into the got front seat of passenger Pelosi’s vehicle. The entire encounter, from the time the defendant and Wilson arrived on they Sumac Street until left in separate vehicles for the police station, lasted no more than five minutes.
Wilson suppression testified at the for the hearing explained defendant. She that, approximately at 10 a.m. day on the following Rodgers’ murder, she and the defendant, with resided, whom she arrived on Sumac Street in her Ford Escort many and noticed that people in the neighborhood were standing 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, you cause all murdered her.” The defendant then pro- ceeded to drive down the street toward his residence. When there, police he arrived appeared. car According Wilson, immediately the defendant attempted to turn leave, around and to police but the told him stop,” “to and then “blocked him in.” Wilson further testified that police “made” her and the defendant out of get *15 vehicle. When any asked if she had choice in the matter, she replied, just “I didn’t know. I they did what told after however, that, exiting explained, me.” Wilson also vohmtarily. police station vehicle, the she went outside her she was standing Oliver testified that Septem- morning Sumac in the hours house on Street saw defendant and Wilson ber she the when pulled his vehicle up the street. The defendant drive asked Oliver if she had Oliver, over next to and Wilson responded that had not. The seen Oliver she Rodgers. house, his but driving then continued toward defendant nearby. When defendant police parked car was the up to leave. At police saw he tried to back and car, the police pulled up beside the however, the car point, stop. Oliver could not car, causing defendant’s him to the exit any hear conversation but observed defendant car. subsequently his vehicle and enter the officer’s out the vehicle Shortly got Wilson also thereafter, also arrived at police car that had entered another departed. the Both cars then police scene. only participating car the
Ariola testified that Kennelly the car that he and were surveillance was car parked and that officers had their about driving beyond oppo- house on three houses defendant’s site After the defendant arrived with side street. pulled Escort, in Wilson’s Ford the defendant Wilson residence, in front of his waited few seconds” “[a] away. then to drive Before the defendant could started into away, Ariola moved his car however, drive so to the defen- stopped middle of street close car that defendant could not him. get dant’s away. attempts The defendant made no further to drive if the asked that, Ariola testified defendant had “no move, officers to there would have been reason” prevent up. him then exited backing from officers vehicle; approached their car and the defendant’s Ken- nelly approached along the driver’s side and Ariola approached side. After the offi- along passenger’s themselves, Kennelly cers the defendant identified told *16 accompany that he wanted the defendant to him to the police station to talk had Rodgers. about Neither officer his drawn. Ariola further testified there was gun that time probable no cause at that to arrest the defendant merely question and that the had officers wanted to they him information was because had that he with shortly death. Rodgers before her The officers asked to vehicle, and, the defendant and Wilson exit their shortly thereafter, Pelosi arrived at the The offi- scene. cers called a then tow truck the defendant’s car. “everybody,” Ariola testified that defen- including the dant, suspect time, was at the and the inten- officers’ question, arrest, tion was to not to the defendant. After Kennelly Pelosi left scene in cars separate and Wilson, respectively, stayed defendant Ariola behind secure the to guard to area and the defendant’s away. vehicle until it could be towed The final defense was Vega, witness the defendant’s next-door neighbor. Vega that, testified on the morning surveillance, yard of the he was standing his front police saw four “marked” cars block the defendant’s approached vehicle the defendant his home. According Vega, police opened officers the defen- door, “pointed dant’s at gun defendant],” car [the “pulled him out” of Immediately thereafter, the car. defendant, who was handcuffed, placed not was one police approxi- vehicles. stated Vega that he was mately 600 feet from the when scene he observed the events that formed the basis of his testimony. this
Following testimony, court, O’Keefe, J., trial denied the an suppress. defendant’s motion In oral the court found or . . . ruling, “confrontation police between the and the on the meeting” defendant September morning 16,1998, did not have the “indicia of an In this support conclusion, arrest.” court that the not run up observed officers did to the defen- weapons they dant or draw their when him. approached testimony officers that the Vega’s stated that court noting that, credible, weapons had their drawn only testify was the one witnesses, Vega of all the they when police brandishing guns were *17 that, found The court also approached the defendant. car,” stop “did the officers although defendant’s] [the the reasonable under circumstances their actions were officers possible for the might it not have been because attention captured have the defendant’s otherwise to speak with they to that wanted to to alert him the fact the him. further found that confrontation The court not a seizure police and the was between the defendant it was, even if it purposes, and, for constitutional that suspicion” “reasonable, articulable based on was involved in death because her Rodgers’ defendant only hours and the murder had occurred a few earlier person as the to be defendant had been identified last The seen while was still alive. court Rodgers with she to specific respect with findings made no other permissi- police issue whether the had exceeded the of Terry stop. note, however, ble of a The court did limits speak people in police paid that officers are to therefore, investigations and, furtherance criminal present every right that in the case had to the officers try Finally, speak with the defendant. the court found police gone the defendant had station volun- tarily. support conclusion, In of this court observed may feelings done so the defendant have out because, remorse or shame for what he had done immediately soon he station, began as he arrived at cry stabbing and confessed to court Rodgers. concluded, behavior, on the basis of the defendant’s somebody is really that he did not “sound like who police to the efforts of to talk to him.” resistant expand it on its the court stated that would Although oral ruling in a written memorandum of decision to follow, no such memorandum ever was issued.23
“Our standard of review of a trial court’s
findings
conclusions in connection with a
suppress
motion to
well defined. A
finding
fact will not be disturbed
unless it is clearly
erroneous
view of the evidence
pleadings
the whole record ....
[When]
legal conclusions of the court are challenged, we must
determine
they
whether
are legally and logically correct
they
and whether
support
find
in the facts set out in
the memorandum of decision .... We undertake a
more probing factual review when a
ques-
constitutional
tion hangs in the balance.
...
In
present
case,
in which
required
we are
to determine whether
*18
defendant was
by
seized
the police,
presented
we are
a,
question
mixed
of law and
requires
fact that
independent
our
review.” (Citations omitted;
internal
quotation marks omitted.) State v. Burroughs, 288
Conn. 836, 843-44,
643
omitted.) State
v.
marks
omitted;
quotation
internal
A.2d
Santos, 267 Conn.
495, 503,
(2004).
838
981
to the United States
fourth amendment
“Under the
permitted
officer is
police
...
[constitution
appropriate
in an
man
circumstances and
appropriate
purposes
investigative
an individual for
ner to detain
a reasonable and articu
believes,
if
based on
the officer
in criminal
suspicion
engaged
that the individual
lable
probable cause to make an
activity,
if there is no
even
White,
330-31, 110 S.
arrest. Alabama
325,
v.
496 U.S.
Ohio,
Terry
v.
2412,
“[I]n
[a]
point
specific
must
able
and articulable
cer
be
which,
facts
taken
with the rational inferences
together
facts, reasonably
from those
warrant
intrusion.
Terry
Ohio,
supra,
determining
“In addition,
prevention
crime
and detec
[e]ffective
tion . . .
the
police
that a
recognition
officer
[underlie]
may
appropriate
in an appropriate
circumstances and
person
approach
proposes
manner
of investigating
possibly
behavior
though
prob
criminal
even
there is no
able cause
an
Terry
Ohio,
to make
arrest.
supra,
Therefore,
This court also has recognized that test enunci- “[t]he Supreme ated States Court United [regarding] investigative stop passes whether an constitutional muster per- balances nature of the intrusion [on] security importance sonal against governmen- tal interest inducing intrusion. See United States v. Hensley, 221, 228, U.S. 105 S. Ct. 83 L. Ed. 2d [469 A law (1985)]. strong enforcement interest has been particularly recognized context felonies or crimes, public violent because ‘it is in the interest suspect crime be solved detained as promptly Id., as possible.’ Furthermore, 229. when the *20 in suspect situation which a been has detained has privacy . . . of expectation him a lesser afforded been deemed to protections amendment have fourth omitted.) less stringent.” (Citations be correspondingly 196. the Mitchell, supra, 204 Conn. Because v. stop is mini- investigative from an resulting intrusion is standard not onerous. suspicion the reasonable mal, and arti- of whether a reasonable “The determination part analysis: on suspicion rests a two culable exists of the trial findings the factual (1) underlying whether whether conclu- clearly erroneous; and the (2) court are suspicion rise gave that those facts to such sion quotation omitted.) correct.” marks legally (Internal Santos, State supra, Conn. 504—505. directly propriety not the of
The state does address the the finding the court’s that encounter between police officers in the street in front defendant and the a seizure. defendant’s house did constitute the if contends, however, that, assume, even we The state did arguendo, that the officers’ conduct constitute properly the concluded that the seizure seizure, court Terry stop. particular, lawful In the state contends was a Terry stop requirements satisfied reasonable, it based on the officers’ articu- because was suspicion lable that the defendant was involved Rod- stop scope murder and because the was limited gers’ duration, necessary no lasting longer than effec- purpose inquiring tuate its whether defendant questions be some Rod- would to answer about willing surrounding her death. The gers and circumstances challenge finding defendant does not the court’s stop the facts in existence at the time of the rise gave suspicion on reasonable, part to a articulable Terry police justify stop.24 officers to The defendant suspi note that courts We other have found reasonable articulable when, present case, recently investigation cion the murder under occurred, general vicinity had it same in which was committed in the stopped, person was the last to be seen defendant the defendant prior See, Burgeson State, e.g., victim with the murder. Ga.
646 claims, rather, that the officers’ him detention of “was intrusiveness, such displays marked of force and that it permitted coercion exceeded the bounds of a stop Terry” and, constituted a therefore, arrest, de facto required probable which In support cause. of his claim that officers him, the used undue force in detaining that, the asserts in addition blocking defendant to his two or three armed officers vehicle, surrounded him vehicle, and ordered him out of the in a behaved “blunt him, conveyed and forceful manner” toward and such when to urgency they have the accom- sought defendant pany to them the station that he was to forced abandon his of vehicle the middle the road.
In response,
only aspect
the state maintains that the
stop
of the
that even
could
arguably
be characterized
involving
compulsion
of
or
degree
force was the
use
police
pre-
officers’
of their unmarked
to
vehicles
driving away.
vent the defendant from
state con-
tends, however, that,
totality
when viewed in
light of
circumstances,
the officers’ blocking the defendant’s
vehicle so that he could not leave before the officers
speak
were able to
to him was a reasonable means of
maintaining
quo
the status
so that the officers could
complete
purpose
stop.
of the
In
investigatory
other
the state
that
words,
challenged police
asserts
stop
action
not transform
did
into an arrest.
102, 105,
(1996) (police
suspicion
649 the officers, nevertheless claims defendant scope per- of a actions, virtue of their exceeded matter of when stop, law, as a investigative missible him. “When approached and communicated they fourth amendment reasonableness in a engaging available officer inquiry, ask, would facts we the search warrant at the moment of the seizure or belief the action [person] reasonable caution satisfy . . the reason- appropriate? taken was . [T]o stops on less standard, conducting ableness officers least probable must intrusive employ than cause reasonably legitimate available effect their means time, ... the same how- investigative purposes. At need to allow ever, recognizes important law responses their to the demands graduate authorities to any particular (Citations omitted; situation.” internal Nash, State quotation omitted.) supra, marks Conn. 641-42. have patdown
Connecticut courts
found the
of a sus
pect,
suspect’s
approach
of a
vehicle and the
search
per
of officers with their
to be within the
guns drawn
Terry
missible
of a
on
cir
stop depending
bounds
in Wilkins,
Thus,
cumstances.
Conn.
A.2d
court
example,
this
held that
(1997),
investigatory
an
detention
lawful when uniformed
officer, following
stop
a traffic
of a vehicle
which
during
*24
occupants
engaged
conduct,
its
two
in furtive
drawn,
approached the vehicle with his
ordered
gun
occupants
patdown
and, thereafter,
out
conducted
occupants
search of
limited search
their
and a
see also State
for weapons. Id., 493-94, 501-504;
vehicle
Casey,
App.
v.
A.2d 1312
32, 41-44, 692
45 Conn.
(actions
police
permissible
did not
limits of
officers
exceed
Terry,
though police
detention under
even
investigative
suspects
officers removed defendant
other
from
at
vehicle,
vehicle
searched
defendant and
gunpoint,
suspects twice,
other
handcuffed defendant and other
suspects
placed
police
them in back of
cruisers for
necessary
one hour before
identifications
making
probable
arrest,
police
cause to
when
had information
occupants
that defendant and other
may
vehicle
have
been
in shooting
involved
and officers’ actions
safety
public
accounted for
cert.
themselves),
denied,
241 Conn.
Guided general articulated foregoing policy underly- cases and the considerations Terry, reject we the defendant’s claim ing that the offi- cers in conduct engaged was more intrusive or necessary more coercive than to effectuate a legitimate Terry stop. In view of the fact that the officers were a murder that had occurred in area investigating only a few hours earlier and the fact that the defendant person was the last seen with the victim, the officers’ briefly conduct in him was detaining not unreasonable. only police fairly may conduct that be characterized as coercive the action undertaken the officers in blocking the defendant’s vehicle to ensure that he they would not leave the area before speak could attempt him. In of the defendant’s light leave almost immediately pulled up house, after he to his we agree with the trial court that blocking defendant’s vehicle likely way was the most efficacious to maintain the quo police status so that the could the defendant’s gain attention. agree ordinarily Other courts that such action
651
the
quo when
sub-
permissible to maintain the status
is
stop
and,
in a vehicle
there-
is
ject
investigatory
of the
scene unless
fore,
to flee from the
capacity
has the
See, e.g.,
from
so.
United
physically
doing
blocked
1998)
F.3d
Cir.
Tuley,
(8th
States v.
is
to
occupant
its
unable
leave
a vehicle so
(“[blocking
stop is reasonable
investigatory
course of an
during the
purpose
the
quo
completing
to maintain the status
while
Hall,
App.
50 Mass.
Commonwealth
stop”);
generally
will be
208, 210,
(“[blocking
736 N.E.2d
when
Terry stop]
of a
purposes
reasonable [for
suspect
in a
of the chance
vehicle because
suspect may
approach
police
with
upon
flee
public well as to the officers
danger to the
as
resulting
omitted]),
marks
review
quotation
involved” [internal
1111,
The defendant cites several cases the officers used level of force and coercion that Terry stop. of a lawful The officers exceeded limits cases, however, in those used far more coercive tech- niques employed by than those that were the officers F.3d present Shiflett, in the case. See Park v. liberty 851-52 Cir. was curtailed (4th 2001) (defendant’s associated formal arrest because he degree being would not have felt free leave after thrown *26 652
against wall, kicked, handcuffed and
in patrol
locked
car); United States v. Robinson, 30 F.3d 774, 785 (7th
Cir. 1994) (stop escalated into arrest when defendant
placed
in handcuffs and read his Miranda rights);
Mayer,
Oliveira v.
642,
F.3d
645-46 (2d Cir. 1994)
(court
police
beyond
concluded that
had gone
investiga
tory stop
suspects
and had arrested them on basis
suspects
of facts that
had been “boxed-in by
police
six
vehicles and
by
outnumbered two-to-one
officers with
guns drawn or
ready,”
at the
ordered from vehicle,
harshly
in
treated, kept
handcuffs for duration of deten
tion, placed
separate
in
police cruisers
questioned
and
with or without Miranda
and
warnings,
extensively
cert.
searched),
denied,
The defendant also claims about police questioned to the station to be tarily go consent purported He contends that his the murder. fruit of seizure police illegal was the his speak to merely not, agreement if his that, even it was reject We authority. to lawful his submission reflected contentions. the defendant’s con address claim that his
We first
the defendant’s
an illegal
invalid
it was the fruit of
sent was
because
held
frequently
purportedly
“Courts have
that a
seizure.
or search
voluntary
illegal
consent
after an
arrest
given
a tainted fruit when that consent
is nonetheless
very
police
See, e.g.,
soon
action.
illegal
after the
given
v. Recalde,
United States
1448,
(10th
761 F.2d
arrest
promptly
illegal
after
1985) (consent given
Cir.
Gooding,
United
States
78,
(4th
v.
695 F.2d
invalid);
brief
occurring
Cir.
‘within the same
1982) (consent
State
illegal
encounter’ as
seizure invalid);
continuous
Raheem,
(La. 1985) (consent
So. 2d
297-98
forty
within
minutes of arrest
These deci
given
invalid).
temporal
imply
very
sions
consent
close
given
to the official
is often a mere submis
proximity
illegality
authority
necessar
resignation
police
sion or
and not
Cates,
of free will.”
202 Conn.
ily
an act
621-22,
light
The defendant next asserts that, even if he was the subject of a lawful investigatory stop, he did not consent voluntarily to go police station for questioning bécause, totality under the of the circumstances, his to do was agreement product police so coercion. The defendant also contends that the evidence demon- merely strates that he was submitting to lawful author- ity. reject We these claims.
It is well
question
established that
whether
“[t]he
[of]
consent
...
.
freely
has
.
. been
voluntarily
or was the
given,
product
coercion,
express or
is a
implied,
question of fact to be determined from the
totality of all the
.
and,
. .
ultimately,
circumstances.
*28
requires a determination regarding
putative
con
senter’s state of mind.” (Citation omitted;
quo
internal
tation marks
omitted.)
Reynolds,
1,
Conn.
44,
Similarly, in State v. Colon, supra,
272 Conn.
we
*29
observed that the
Ivo
defendant,
Colon, voluntarily had
accompanied
police
to the station, where he con-
fessed to the fatal beating
year
of a two
old child.26Id.,
police
permission
girl
received
to enter the residence from the
father,
Azukas,
friend’s
who owned the home and also resided there.
v.
supra,
271,
278 Conn.
273.
voluntarily accompany
We note that Colon never claimed that he did not
police
aspect
investigation merely
to the station. We discussed that
explain,
lawfully
concluding
to
after
that Colon
had been detained under
Terry,
subsequent
police
that his
statements to the
had not been otherwise
Colon, supra,
tainted. See State v.
133,140-41.
hallway
in the
police confronted Colon
that, after the
they briefly
apartment;
id., 131,137;
see
of his mother’s
him if
Terry
him
and asked
he would
detained
under
injuries.
discuss the child’s
to the station with them to
go
he
affirmatively,
When Colon nodded
Id., 151-52 n.15.
Id. We
police.
to the station
transported
was
the trial court had found that
further noted that
“[t]here
any
threats,
evidence of
or
drawn,
no
or
guns
were
that the court finds credi-
force. The evidence
physical
was placed
was not handcuffed. He
ble is that [Colon]
cruiser, without a
police
cage,
in an unmarked
headquarters.
demeanor was
police
taken to
[Colon’s]
police
control.
Although
calm and
under
[he was]
he could refuse to
to the
go
did not tell [Colon that]
object or
to
station,
request
go
he did not
police
quotation marks
(Internal
.
at another time.”
. . station
the evidence
Id. We thus characterized
omitted.)
voluntarily to go
that Colon had consented
indicating
See id.
police
questioning.
station for
to
also have concluded that a defendant’s
Other courts
police
to the station
accompany
consent
to
appeared
to do
voluntary
willing
when the defendant
See, e.g.,
was no evidence of coercion.
so and there
Mendenhall,
S.
United States
544, 557-58, 100
446 U.S.
voluntarily
(respondent
657
Navarro,
State
v.
201
defendant);
intimidate
otherwise
volunta
292, 296-97,
The defendant also claims that his consent was invol- untary (1) because the officers blocked him from leav- approached ing (2) (3) scene, were armed, on both (4) vehicle, sides of his did not allow him to move his (5) road, vehicle from the middle to the side of the immediately sought (6) his consent he seized, after was (7) manner, were blunt in their had him ride to the pohce station the backseat of their vehicle instead *33 having disagree him drive his own vehicle. We with required the defendant’s contention that these facts a finding that his consent had not been obtained volunta- rily. Although these facts are relevant to the determina- voluntary, tion of whether the defendant’s consent was they necessarily dispositive issue, are not of that the trial court was not bound to treat them as such. light Indeed, the other facts that demonstrate the accompany willingness police, defendant’s to reasonably trial court concluded that the defendant had agreed voluntarily.28 reject to do so We therefore reject unpersuasive We as irrelevant or the other that “circumstances” allegedly demonstrating go the defendant cites as that his consent to to the involuntary. police police station was These include the fact that the did they rights go Miranda not inform him of his before asked him station, pre that there was no inclement weather or other conditions that police interviewing place vented the from the defendant in his car or some station, residence, other than the encounter occurred front of his placed station, that he was in a small interview room after he arrived at the prior being and that he never was told that he could leave the station inter rogated. improperly trial that the court defendant’s contention inculpatory his state- suppress motion denied his and the thereof. ments fruits
II
ALIVE RULE
BORN
that, in
his motion
denying
The defendant next claims
felony
capital
and the two
the murder count
to dismiss
court,
trial
predicated
death,
Antonia’s
counts
on
mle in
invoked the bom alive
Damiani, J., improperly
Antonia was a
determination that
connection
its
murder and
within
of this state’s
“person”
meaning
The defendant contends
capital felony statutes.
pursuant
to which a
precedent
no
in this state
there is
a
that is
may be
hable for
homicide
defendant
held
if
and,
inflicted on a fetus
even
injury
founded on an
authority
the mle is obsolete and should
existed,
such
that the
defendant further claims
not be followed. The
with,
abrogated
and thus
bom alive mle
inconsistent
because,
Code,
under the Penal
by,
Code,
our Penal
liability
premised] on attendant circum-
“criminal
[is
must
the time the
was com-
stances that
exist at
[crime
of this
that,
light
The defendant maintains
mitted].”
have
Antonia within
principle, he could not
murdered
Code
of the lack of
meaning
the Penal
because
temporal nexus
his criminal conduct and
between
person.
defendant,
In related vein,
her status as
inapplicability
his
concerning
on
contention
relying
*34
alive
his intent
mle,
of the bom
further maintains that
kill
be
to Antonia
Rodgers
could not
transferred
provisions
(a)
under the transferred intent
of 53a-54a
§
in Anton-
engaged
because he
in the conduct resulting
person. Finally,
death when
was not a
ia’s
Antonia
applica-
claims
trial court’s
defendant
that the
“novel”
of the “twin
fictions” of the bom alive mle
tion
legal
intent,
and the doctrine
transferred
as a basis for
prosecute him for mur-
concluding that the state could
capital
der and
felony, violated his constitutional
right
to fair warning
process
under the due
clause of the
fourteenth amendment and constituted a violation of
post
the ex
facto clause of
one,
10,
article
§
United States constitution.29
facts and
following
procedural history are rele-
vant to our resolution of
February
these claims. On
11,
court, Damiani,
the trial
J.,
aprobable
conducted
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
require proof
the counts
by the state that Antonia was bom alive, namely, the
counts alleging
Antonia,
the murder of
the murder of
person
under the
of sixteen
age
and the
(Antonia)
murder of two
persons
or more
(Rodgers and Antonia)
in a single transaction,
the state
testimony
adduced
from Richard S. Palmer,
department
the emergency
phy-
sician who delivered Antonia via cesarean section.30
Due to the circumstances,
Palmer
only
had
an
extremely
opportunity
limited
Antonia,
observe
but
he did observe that Antonia was not
breathing
any
not making
sounds at the
delivery.
time of
He also
attempt
made no
Antonia;
resuscitate
instead, imme-
provides
The fourteenth amendment
to the United States constitution
part:
deprive any person
life, liberty
relevant
“No State shall
. . .
or
property,
process
without due
of law . . . .”
States,
one, 10,provides
The constitution of the United
§
article
in relevant
part:
any
pass
post
“No State shall . . .
...
ex
facto Law . . . .”
application
The defendant also contends that dual
of the bom alive rule
provisions
(a)
rights
and the transferred
§
intent
53a-54a
violates his
provisions
analogous
under the
of the state constitution. Because he has
engaged
separate
analysis,
however,
state constitutional
we do not
Nash,
See, e.g.,
address his claim under the state constitution.
State n.4,
(2006) (this
Conn.
623-24
On same capital felony to defendant filed a motion dismiss murder, to Antonia’s charges charge relating and request probable and made for a of no finding cause. dismiss, In the motion the defendant asserted because, these were charges legally alia, deficient inter was a fetus defendant (1) Antonia when the inflicted injuries and, resulted in death, her a matter law, person this state’s fetus is not a under murder capital felony statutes, and evidence was insuffi- (2) requisite cient establish the “concurrence between mens rea actus [necessary] and the reus of the charged offenses,” (3) prosecuting defendant under the alive rule his notice right bom violates process post provi- under the due ex relevant facto sions of the federal constitution. May
On the trial denied the defendant’s 19,1999, court request motion to finding proba- dismiss for a no v. Courchesne, ble cause. Sup. 46 Conn.
A.2d 699 In its decision, memorandum (1999). question pre- trial court characterized the fundamental sented as “whether the can be tried defendant for mur- *36 capital felony
der and for the of an infant killing who forty-two succumbs days following birth [cesarean] necessitated the fatal of her stabbing pregnant mother . . . .” Id., 64. The court that, observed establish that defendant had committed the crimes of murder and capital felony out of arising the death of Antonia, required prove the state was that Antonia “person” was a within the meaning murder and capital felony statutes. See id., 65. Because General Statutes 53a-3 defines (1) “person” simply § as a “human being,” term that itself is not in defined our statutes, the trial court turned to the Model Penal Code and the New York Penal Law for guidance. Id., 66-67. that, The court observed under the New York Penal Law, ‘person’ “a is defined as ‘a human being who has ” been Id., 67, bom is alive.’ quoting New York Penal Law (McKinney 125.05 The trial (1) 1998). § court also observed that Model Penal Code defines a “[t]he person ‘human as ‘a who has being’ been bom and is ” alive.’ State v. Courchesne, supra, 67; see Model Penal Code (1) § 210.0 On the basis of (1980). these definitions past and this court’s reliance on the New York Penal Law and Model Penal Code this construing state’s Code, Penal the trial court concluded that “the defini- tion of a ‘person’ in Connecticut criminal law includes those who are bom and are alive.” State v. Courchesne, supra, 67. The court further concluded that this defini- tion did not exclude Antonia physician because the who her, Palmer, delivered had probable testified at the cause hearing Antonia “was bom and remained forty-two days alive for before she succumbed to her injuries.” Id.
In reaching determination, its the trial court also relied on the common-law bom id., alive rule. See 67-69. explained The court that, under that rule, “the death of a fetus could stand as a basis for murder as long fetus was subsequently injuries bom alive and died of Id., 68. The corut further observed inflicted útero.” previously recognized had been the bom alive rule 40 Conn. Anonymous (1986-1), in State in this state (Anonymous). A.2d 156 See Sup. 498, (1986) In Sup. Anonymous, 46 Conn. 67. Courchesne, supra, denying the bom rale court on alive relied defendant, application for warrant to arrest state’s in connection with who had accused murder been *37 . . . .” State unborn but viable fetus the death “an 498-500, 502-503, 505. Anonymous supra, v. (1986-1), present rejected therefore The trial in the case court bom application contention that the defendant’s process due notice right rale violated his fair alive was a fetus when defendant because Antonia injuries, therefore, he had no and, inflicted her fatal subsequent give to know that her death could reason offense, namely, capital murder or rise to cognizable felony. Courchesne, supra, See v. 71-72. The court State deep in the the bom alive rale has roots explained that and that the codification of legislature’s common law in any way. had not the rale the criminal law altered rejected For court Id., reasons, 71. these same application defendant’s claim that rale consti- post law, concluding tuted an unconstitutional ex facto applies the defendant’s that “the rule to establish [that] liability apply not created he acted. ... To after this would defendant, therefore, the bom alive rale to punishment crime, not make more burdensome the for a post its of the ex facto after commission violation [in v. 37, 42, .... Collins U.S. Youngblood, clause] [497 2715, 110 S. Ct. 111 L. Ed. 30 (1990)].” (Citation 2d omitted; quotation omitted.) internal marks State respect Courchesne, supra, Finally, 72. failed
defendant’s claim that
state had
to demon-
necessary
mens
strate the
“concurrence between the
73;
and the
reus of the charged offenses”; id.,
rea
actus
the trial
intent required
court observed that “[t]he
53a-54a (a)
may
§
state’s murder
sup-
be
[this
statute]
plied under the doctrine of transferred intent. The clear
of the statute
meaning
leads to the result that, when a
person
engages
conduct with the intent to kill some-
one, there can be a separate count of
every
murder for
the conduct. State v. Hinton,
person actually
killed
Conn.
309,
Thereafter, the defendant waived his right jury to a trial purposes of the guilt phase of the case, and his case was tried before panel. September On *38 2001, following trial, panel that the issued a written decision the finding defendant of all guilty charges. With respect to the counts of the information relating murder, panel Antonia’s the found that the definition “person” of under Connecticut law “includes those who are bom and are alive,” and, therefore, purposes for of 53a-3 (1), person § human is “a being who has been ” ‘bom alive.’ After that observing law of the case “[t]he is consistent with . . . this [conclusion],” panel the fur- ther stated proven that “the state has beyond a reason- able doubt that Antonia . . . was bom alive” and, consequently, person” that she is “a within the meaning of this state’s capital murder and felony statutes. The panel further explained that the state proven had that defendant, the with the intent to cause the death of Rodgers, had the caused death of Antonia in violation provision of the of 53a-54a (a) pursuant § to which a person is guilty “when, of murder with intent to cause . . . he causes the death person, death of another the .” (Emphasis added.) . . . person a third of for filed a motion articu- subsequently The defendant findings and factual of conclusions legal lation several panel panel in its written decision. The made the only conclusion,31 one legal the motion granted adoption for the bom namely, legal basis “[t]he [the] meant when it referred panel] mle what alive and [the . . . The law’ and ‘the law of the case.’ to ‘the case articulate both the requests panel] defendant that [the case law’ and ‘the law ‘the meaning significance and extent, all, panel] what if at case,’ of the and to [the analysis court, . . the adopted ruling . and [of [the] issue.” In its articula- on the Damiani, J.] [bom alive] “ term of the case’ tion, panel stated ‘[l]aw course this prior during decisions made refers doctrine, “when a has that, under that matter case” interlocutorily, the court previously been ruled [on] may subsequent proceeding in the case treat panel The the law of the case.” then decision as court, Damiani, J., had resolved observed that applies mle to murder and issue of the bom alive as it panel respect following issues, denied the motion conclu legal applied findings: (1) of ‘bom alive’ as sions definition “[t]he [panel] finding . . . was alive factual basis for that Antonia bom and its authority person”; (2) legal . . . and therefore a which [on] “[t]he [panel] held the defendant liable three counts information [the Antonia]”; (3) relating to to “whether bom the murder clarification as incorporated Connecticut, rule law of into the definition of alive was the extent, person, acted, all, if at the time the defendant and to what at [the Damiani, adopted analysis court, panel] ruling on the J.] [the] [of *39 issue”; (4) [panel] applied manner in which the the transferred intent “[t]he Hinton, 301]”; [supra, (5) 227 doctrine as defined in State v. Conn. “[Anton acted”; [panel] legal (6) status at the time the defendant the “[w]hether ia’s] any intent, finding, applying aside of made from the doctrine transferred Antonia, independent of of that the defendant intended to cause the death [Rodgers]”; (7) “[wjhether [panel] accepted and his intent toward and the legal accepting court, if so the . . . conclusion the Dami basis [the] [of ani, penalty narrowing argument scheme that the defendant’s death J.] applies only penalty phase capital felony the conviction.” not to
668 capital felony comprehen- “in a out thought well [and] opinion,” panel sive and that the had the adopted court’s reasoning analysis concluding the defendant of guilty they pertained those offenses insofar as to murder of the Antonia. to turning
Before the merits the defendant’s claims, we first set forth the applicable standard of review.32 jurisdic- “A motion to . . . properly dismiss attacks the essentially court, tion of the the asserting that [state] cannot as matter of law and fact cause state a . action that should be heard the court . . .” (Inter- State v. nal quotation omitted.) marks 291 Cyr, Conn. A.2d 32 “A 49, 56, 967 motion to (2009). tests, dismiss alia, whether, inter on face of record, the court . jurisdiction. is without . . review of the trial [0]ur court’s ultimate legal conclusion and resulting [decision . to . . the to deny] motion dismiss will de novo.” be Haight, quotation omitted.) (Internal marks 279 546, 550, Conn. 217 (2006). A.2d The defendant’s claim also raises an statutory issue of interpretation over which our review plenary. E.g., Co., Continental Ins. Conn. Stiffler A.2d 1270 (2008). construing statute, “When [o]ur objective fundamental is to ascertain and effect to give apparent intent In legislature. of the ... other we seek to words, determine, manner, reasoned statutory of the meaning language applied case, including question facts of of whether [the] actually apply. ... language seeking does In determine the meaning, General Statutes l-2z directs § us first to consider the of the text statute itself and its relationship If, other statutes. after such examining considering relationship, text and such meaning panel adopted findings legal Because the factual conclusions court, Damiani, J., our consideration the defendant’s claim also requires to review the us merits of the court’s decision.
669
yield
and does
unambiguous
is
plain
such text
evidence of
results, extratextual
or unworkable
absurd
. .
.
be considered.
meaning of the statute shall not
we also
plain
unambiguous,
is not
When a statute
history
legislative
to
interpretive guidance
look
enactment,
to
surrounding its
and circumstances
implement, and
it was
policy
designed
legislative
law
and common
relationship
legislation
to existing
its
subject matter
general
principles governing the same
Id., 43.
quotation
omitted.)
.”
marks
(Internal
.
.
.
is a criminal stat-
construed
being
statute
“[W]hen
strictly
the state in
against
it must be construed
ute,
Cardwell,
246 Conn.
the accused.” State
favor of
are
Furthermore,
954
739, 718 A.2d
721,
(1998).
“[w]e
...
a
. .
whether
that,
determining
mindful
.
[i]n
law rule the
or modifies
common
abrogates
statute
of a stat-
strict,
operation
must be
and the
construction
is to be limited
derogation
of the common law
ute
Thus,
.
clearly
scope.
within its
. .
brought
matters
altering
be
as
the common
statute is to
construed
[n]o
import
its
is
law, farther than
words
statute]
[and
any
making
not to be construed
innovation [on]
express.
. . . We
fairly
common law which it does not
law
only those alterations of the common
recognize
of
statute
clearly expressed
that are
in the
language
justice
the traditional
which
principles
because
of
[on]
perpetuated.”
is
be
the common law founded should
(Citations omitted;
quotation
omitted.)
internal
marks
Vehicles,
Ames v. Commissioner
Motor
267 Conn.
839
1250
524, 532,
Floyd,
A.2d
see also State
(2004);
Conn.
(recognizing
A.2d
(1991)
commonplace
of criminal
context
case that
is
“[i]t
statutory
in derogation
construction that statutes
be
alter the
the common law should not
construed to
Thus,
law
their
demand”).
common
further than
words
interpreted
light
that all
legislation
is assumed
“[i]t
(Inter-
common law at the time of its enactment.”
*41
quotation
nal
marks omitted.) Hunte v. Blumenthal,
680 (1998) (assault statute), overruled on other grounds
by State v. Miranda,
When
language
statutory
question
not
nal statute do
resolve
by particular case,
this court
interpretation presented
statutory
“may
parallel
provisions
set forth
turn to
New York
in the Model Penal Code and
[revised]
1967, for
Law,
September 1,
guid-
. . .
effective
Penal
State v. Havi-
ance”;
quotation
omitted)
marks
(internal
can,
593,
A.2d
because
601,
(1990);
213 Conn.
569
1089
heavily
Penal
relied
drafters
“[t]he
[our
Code]
[on]
codes,
Penal Code and various
criminal
Model
state
York. Conn. Joint
especially the
New
[P]enal [Law]
Pt.
Hearings, Judiciary,
1,
Committee
1969
Standing
Hill,
11.” State v.
p.
201
Sess.,
505, 516-17,
Conn.
523
Henry,
see also State v.
253
A.2d 1252
Conn.
(1986);
354,
A.2d 40
note that our Penal
363,
(2000) (“[w]e
752
New
Code is modeled after the
York Penal [Law]”);
Desimone,
State v.
456,
241 Conn.
. . .
partly
Penal Law and
on the Model Penal Code”
quotation marks omitted]). The New York
[internal
Penal Law defines “person” as “a human being who
has been bom and is alive.” New York Penal Law
125.05 (1) (McKinney 2009).34
§
The Model Penal Code
defines “human
as “a
being”
person who has been bom
and is alive . . . .” Model Penal Code
(1)
§ 210.0
(1980).
Thus, even a
injuries
viable fetus that succumbs to
inflicted in útero
being
before
bom alive is
a person
within the meaning of the New York Penal Law and
the Model Penal Code.35Notably,
New
moreover,
York
adoption
This definition has not been amended since the
of the revised
New York Penal Law in 1965.
35We note that a number of courts have indicated that the Model Penal
being”
“person
Code definition of “human
as a
who has been bom and is
represents
alive”
a codification of the common-law bom alive rule. See Lamy,
People
511, 515,
Lage,
(2009);
158 N.H.
law
alive
that it saw “no reason
the
bom
protection
.
to
who are bom and alive
not . . afford
children
should
injuries.” Id.,
period
prenatal
dying
140.
before
as a result of
of time
dissenting opinion,
Schaller, focusing
concurring
Justice
on
In his
term “human
the
that our Penal Code contains no definition
the
fact
does,
asserts, first,
being,”
term
the Model Penal Code definition of that
that
expressly contemplate
pattern
present
and,
fact,
in
the
case
in
fact
adopt
second,
legislature to
Penal Code
that the failure of our
Model
definition.
of the term must be viewed as its renunciation of that
definition
Schaller,
likely
Contrary
Justice
we consider it more
to the contention of
commentary
clarify
Model Penal Code
intended to
that the
to the
homicide,
killing
of a fetus in útero does not constitute
crime
expressly
specific
address the more
issue
that that definition does
útero,
infant, having
injured in
it is a homicide when an
been
whether
injuries. Even
is
alive and then
of his or her
if Justice Schaller is
bom
dies
however,
correct,
the Model Penal Code definition of the term “human
presented
encompass
particular
being” was intended
factual scenario
to
interpretation
case,
or
this
this
that fact would not alter
affect our
state’s
commentary
embodying
as
because
murder statute
the bom alive rule
modem
follow the Model
the Model Penal Code also states: “Several
statutes
is,
making
restricting
this limitation
homicide
Code
[that
[Penal]
explicit.
ldlling
on
of one who has been bom
Others are silent
alive]
express
they
expected
point,
contrary,
may
absent
too
be
but
statement
carry
(Emphasis added.)
approach.”
Model
the common-law
forward
210.1,
statutory
(c) (1980).
§
Penal Code
comment
Because our
scheme
patterned
Code,
presume
legisla-
after the
Penal
we must
that our
Model
commentary and, consequently,
it
ture was familial- with this
that would
commentary by expressly repudiating
with the
have acted
accordance
fact,
being” if,
“human
the Model Penal Code definition of the term
legislature
adopt
Indeed,
had
definition of the term.
intended to
different
“[sjeveral
prominent
explained,
has
one
commentator
criminal codes
*44
‘person’
purposes
being
for
of the law homicide as ...
a human
define
at
the
. . .
has been bom and was alive
the time of
homicidal act.
who
being’
‘person’
term
or like
the
or ‘human
term in the homicide
“[When]
by statute,
usually applied
is not
have
statutes
the courts
the
defined
interpretation.”
omitted; emphasis
(Citations
law ‘bom
common
alive’
LaFave,
(2d
2003)
(c), pp.
added.)
Ed.
§
2 W.
Substantive Criminal Law
14.1
commentary
fact, along
n.13. This
Model
419-20
latter
to the
Penal
Code,
recognize
refutes Justice Schaller’s contention that we should not
We also look
interpretive
guidance to common-
law principles governing
subject
the same general
mat-
ter.36“At common law it
only
is clear that
a living human
being could be the victim of a homicide. To become a
human being within the meaning of homicide statutes
at
law,
common
a child had to be bom alive and have
an
independent
existence
separate
of and
from its
. . .
mother.
The ‘bom alive’ rule dates back to at least
century
when the great common law-
[seventeenth]
Sir
yer,
Coke,
Edward
wrote that the
of an
killing
unborn
quickened child ‘is a great misprision and no murder.’
. . . The ‘bom
requirement
alive’
was reiterated
[in
eighteenth century] by
Blackstone in
[Sir William]
[his
common-law treatise
Commentaries
entitled]
[on
Laws of England]
....
As has been elsewhere thor-
oughly documented,
Blackstone
had tremendous
impact on the development of the common law in the
original American colonies
early
and
states of
merely
express
the bom alive rule
because our statutes contain no
reference
to it.
previously
observed,
generally
As this court
has
common law is
“[t]he
principles, usage,
applicable
described as those
and rules of action
to the
government
security
persons
property
and
and
which do not rest for
authority
any express
positive
their
and
declaration of
[on]
the will of the
legislature.” (Internal quotation
omitted.)
McNamara,
marks
v.
Moore
16, 24,
(1986);
Conn.
Telegraph
A.2d 660
see also Western Union
Co.
Publishing Co.,
92, 102,
Call
(1901)
181 U.S.
21 S. Ct.
675 rule had country. the ‘bom alive’ By 1850, . . this . jurisdictions widespread acceptance all general (Cita- issue.” considered the States had the United [that] 625, (Minn. Soto, State v. 378 N.W.2d omitted.) tions Unborn Forsythe, also C. “Homicide 1985); see Anachro- Legal and Other The Bom Alive Rule Child: 563, U. L. 595-96 nisms,” (1987). 21 Val. Rev. pre- alive rule’ simplest statement,
“In the ‘bom its alive only one has been bom can be who scribes that of a fetus, the death Causing of homicide. the victim homicide at or was not considered not, whether viable and fetus bom then If, however, the was common law. prosecution prior birth, injuries died of inflicted for Requirements maintained. for homicide could be fetus stringent: . . ‘the must live birth were . proof of totally mother have expelled have from the been ” vitality.’ Common- independent signs shown clear A.2d 843 Booth, (2001). wealth v. Pa. from the state of reasons, deriving “At two both least may past, be discerned knowledge medical centuries First, high inci- requirements. owing for such it mortality stillbirths, was prenatal dence of a fetal death or difficult to determine that exceedingly act had from a defendant’s and not stillbirth resulted fetus Second, from causes. because the natural dependent therefore essen- [on], considered to be tially of, mother, prosecution its homicide part could be unless it could be shown that not maintained person separate had become a from its fetus recently 241. Id., mother.” As one court in Australia explained: presumed “The law that all children were bom dead and the fact of live birth had to be established Usually proof difficult, . . . was not evidence. such problems but arose when a child died soon after birth no, little, and there was or direct evidence what immediately (Citations had at or after birth.” happened *46 Regina v. omitted.) Iby, 63 N.S.W.L.R. 278, 283-84, 154 A. Crim. R. 55 South (New App. Wales Crim. 2005).
The commentaries of one of Connecticut’s most prominent legal scholars, former Zepha- Chief Justice Swift, niah a member of this court from 1808 until reveal that the bom alive rule component was a state’s homicide laws from its days. earliest 2 Z. See A Swift, System of the Laws of the State of Connecticut p. In
(1796) scholarly 299. his and authoritative treatise on Connecticut law, Swift states: respect- “The [s]tatute murder ing enacts, any person that if shall any commit upon wilful murder, malice, cruelty, hatred or not just necessary man’s and by [defense], casualty nor against will, his or shall slay or kill another through guile, byor poisoning, or other such atrocious practices, he shall put be to death. The common law definition of murder person is when a of sound memory and discretion, unlawfully any killeth reasonable creature in being, public and in the peace, with malice afore- thought, express either or implied. It is evident that the statute is made in affirmance of the common law. . . . person killed,
“The to constitute murder, must be actually in existence. To kill a child in its mother’s womb, is murder, not but a great misdemeanor, but if the child be alive, bom and then by die reason of the injury it suffered in the womb, it will be murder him who caused it.” Id., pp. 298-99. A similar assertion concerning 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 Swift. Swift stated therein: “Felo- nious is of two kinds, and [h]omicide [m]urder [m]an- slaughter. Murder is defined to be person where a sound and kills memory, discretion, unlawfully any rea- sonable creature, and in the being, peace, with malice aforethought express or implied. . . . be a party killed must
“To
murder
constitute
in the
Therefore
peace.
being,
reasonable
alive
procure an abortion or
potion
in order to
take
design,
female with the same
it,
pregnant
to a
administer
killed,
child is
murder
strike her so that the
or to
existence,
is not in
law, because
at common
[the child]
be ascertained
of its death cannot
circumstance
alive,
if the
be bom
precision: but
child
with sufficient
has
reason of the violence it
afterwards
die[s]
opin-
seems
be the better
birth,
received before its
it
*47
party
in the
who inflicted
ion that it will be murder
the State of
Swift,
2 Z.
A
Laws of
Digest
it.”37
p.
Furthermore,
(1823)
although
Connecticut
267.
court,
for
trial courts
impression
issue is one of first
this
mle,
applied
have
the bom alive
previously
in this state
rale
alive
in
rale,
concluding
or a
akin to the bom
injuries
despite
a fetus that is bom alive
suffered
having
negligence
person
in útero
a result of the
of another
Simon v.
wrongdoer;
has
cause of action against
Mullin,
Sup.
147,
A.2d 1353
139,
(1977)
34 Conn.
380
v. New
regardless
viability);
England
fetus
Tursi
(any
242,
In
the common
ascertaining
law, we also look to the
jurisdictions.
decisions of other
E.g., Rogers v. Tennes-
see, 532 U.S. 451, 464, 121 S.
Ct.
S. Ct. 224,
679 who died (twins A.2d 505 (1975)] 343 Super. 423, [429, of homi- meaning within ‘persons’ birth hours of within Div. 2d App. [supra, People Hall, v. laws); cide birth due thirty-six hours after who died (infant 76-78] within ‘person’ of mother shooting prenatal [was] State], 957 Cuellar statutes); homicide meaning [v. who pet. refd)] (infant App. 1997, (Tex. S.W.2d [140 injuries suffered hours after birth from forty-three died meaning of ‘individual’ within in car crash by mother statute). manslaughter were based decisions some of those
“Although
[on]
include the
homicide
expressly defining
statutes
alive, the absence
who have been bom
of those
deaths
contrary inteipreta-
not dictate a
does
language
of such
W.2d
2d
N.
Cornelius,
152Wis.
In
tion.
[448
[State]
that, notwith-
argued
the defendant
1989)],
(App.
in the statu-
of the bom alive mle
the inclusion
standing
not be
he could
being,’
of ‘human
tory definition
of a child
for the death
for homicide
prosecuted
injuries. [Id.,
infliction
prenatal
from the
resulting
noted that Wiscon-
claim,
the court
rejecting
In
279.]
com-
had abolished
Connecticut])
Arizona
(like
sin
[and
code. See
crimes in favor of a criminal
mon law
[id.]
that common law
the court observed
Nevertheless,
retained . . .
with the code were
mies not in conflict
employed
that it would have
and thus concluded
statute even
interpreting
mle in
the homicide
bom alive
to the mle. See id.” State
statutory
reference
absent
584, 589,
2000);
Ariz.
v.
(statutory
“begins
presumption
construction
with the
statutory
and common law should,
pos
[whenever]
sible,
read in harmony”).
previously
be
As we
have
observed, moreover, “the common law of
. . .
England
settlers,
here
the first
and became the
brought
common law of Connecticut
so far as it was not
unadapted
country.”
to the local circumstances of this
Graham Walker,
(Citations omitted.)
78 Conn.
A.
Thus,
times,
at
view
(1905).
“[this court’s]
relationship
of the
of the common law of England to
conspicuous by
the law of Connecticut has been
its
Dacey
Assn.,
Connecticut Bar
ambivalence”;
21, 25,
and,
Conn.
681
jurisdiction
virtually every
accepted by
the rule
justice
Pinkerton United
pending
with this
precedent
recognized
no
frequently
Indeed,
prior
unless
that,
toms and
ix-xiii
expressly by
no court of this state
ment of former Justice
the case
of clear
applies
990
court’s common-law
the sanction of universal
the works of common-law
rales of construction
only,
citizens at
common
courts of
557, 670, 660
(concluding, in
Sup. 498;
780-81
alive
alia,
of the
of the
assented to and
declare them to be
only
Conn.
[1946]
support
bom alive rale had
authority
(1993)
universally accepted usages
722 S.W.2d584
in contrast to
to our own
rule,
to 1998—the
for first
434, 456,
manner in which the
Superior
(1789-93)
and rales of
to crime committed
(adopting
contrary
if it did not exist
criminal case.
law of
legislative
particular
justice
Justice
law,
view, which,
regulations
has
we would be
large
in our law
and
(adopting
A.2d 742
the courts
this
time under court’s
applied
applied
804 A.2d
England,
exercise
Court;
or
and
adopted
Zarella’s assertion
(common
court,
cases,
cases
new definition of death
year
such,
particular
statutory law,
practice);
common-law
intent
(1987) (“[i]n
rules of
States,
authority);
people,
or,
[1995],
which are reasonable
doctrine of vicarious
been
previously
common-law
of this
see State v.
subject only
Berdon in his dissent
See, e.g.,
of the defendant’s
required
from other
position
as far as we
and to be
but to
the decisions of courts
justice”);
of common-law
at the time of the conduct
one or
consent and
law derives
recognized
scholars.
practice
that common law of Connecticut
common law is identified
328
practice);
prior
(2002)
state, may adopt
amendment to criminal
and the courts of
classes of
J.
contrary);
State v.
Root, supra,
and
U.S.
common-law
early English
ascertaining
to determine its
that Justice Zarella
had
State
more courts of the
doctrine
common law consists of
obligatory
we
reflects a fundamental
see also
Anonymous
principles
states”);
(Zarella, J.) (citing
know,
to the limitations
customs in addition to
enactment of amendment
640,
See, e.g.,
recognized
as embodied
J.
from,
v.
them,
adoption
citizens,
Walton,
Root, Introduction,
Skakel, supra,
authority,
66 S. Ct.
previously
crimes—in a
Meadows v.
and
in murder case
liability
Williams
upon
in Moore v.
1 Root
inter
the common
of
authority).
have the force of
law of
v.
cases, early
Barnes v.
beneficial,
justice
first
227 Conn.
(1986-1), supra,
of other
adjudications
the doctrine
the existence of
Guess, supra,
existence on the basis
alia, usages
the citizens as
in our homicide
1180,
(Conn.)
state. Under this
practice, amongst the
and
impression
any
at issue. We
advocates,
statute of limitations
has been
and
of due
conspirators
State,
will
published
State,
Ganim,
Thus,
276 Conn.
other
jurisdictions, and
683
uterus,
injuries
can be convicted
on it while
in its mother’s
inflicted
still
felony
.
of the
child.
. . This is consistent
for the
murder
newborn
espoused
Sir
child
Edward
[as
common law status
an unborn
Aiwohi,
century].”
omitted.]);
v.
109
Coke
the seventeenth
[Citation
majority
115,
(“an overwhelming
(2005)
of the
P.3d
Haw.
party
jurisdictions
prosecution
of a third
conduct
confronted with the
subsequently
pregnant mother, causing
perpetrated against
the death of
People Bolar,
parties”);
child, uphold
the third
bom
the convictions of
law,
law,
supra,
App.
(“[t]he
as Illinois
common
as well
109 Ill.
3d
subject
quite clear;
of a
unless it is bom
cannot
homicide
a child
be
injuries previously sustained”);
expires
a result
Common
alive
Morris,
(Ky. 2004) (“The bom alive rule is
142 S.W.3d
wealth
reported
applied
. .
in the United States
. Prior
to have first been
[in 1791].
universally
omitted;
reform,
applied.”
legislative
it was
almost
[Citation
*52
State,
677, 683,
quotation
omitted.]); Williams v.
316 Md.
internal
marks
acceptance
(1989) (“[s]o
law
561A.2d 216
extensive is the
of
common
[the]
Maryland
was
law of
rule that we
that it
indeed the
conclude
[bom alive]
1776”);
Cass,
799,
n.5,
v.
Mass.
in
Commonwealth
392
806
ambivalence in Connecticut
toward the bom alive rule.
To
contrary,
of former
writings
Chief Justice
Swift indicate
it was,
fact,
as a
regarded
govern-
principle in this state.41
ing legal
We, therefore, must
by
acknowledged
1950”);
State, supra,
court
. . .
this
Cuellar v.
957
(“[since 1648],
S.W.2d 138
the common law would allow a conviction for
just manslaughter
but also murder when a child is bom alive and then
prenatal injuries”);
Cornelius, supra,
dies as a result of
152 Wis. 2d
(“[w]hile
statutory
we decide this issue based on Wisconsin’s own
scheme,
noting
exception every jurisdiction
it is worth
that with one
has faced this issue has concluded that the death of an infant as a result
injuries
[emphasis
original]);
also, e.g.,
of fetal
constitutes homicide”
see
Forsythe, supra,
(“The
C.
21 Val. U. L. Rev. 583
common law authorities
impact
law,
accepted
who have had the most
on American
and who have been
authority
law,
American courts as the
for the common
are the [seven-
century authority,
[eighteenth]
Sir Edward Coke . . . and the
teenth]
cen-
tury authority, Sir William
. . .
Blackstone.
Coke and Blackstone were
repeatedly adopted by
general legal
American courts as authorities for the
principles governing
killing
of the unborn child and for the bom alive
rule.”); Bentley, comment,
Ky.
Kentucky?,”
P.
“Feticide: Murder in
L.J.
(1982-83) (“American
employed
courts
the bom alive doctrine as
early
By 1850,
English
as 1797in infanticide cases.
this rule of
law
common
accepted
had become
and well-settled in American
law.”
case
[Internal
quotation
omitted.]); Curran, note,
marks
D.
“Abandonment and Reconcilia-
Addressing
Objections
tion:
Political and Common Law
to Fetal Homicide
Laws,”
1107, 1112,
(2009) (“Historically,
58 Duke L.J.
feticide was
governed entirely by the bom-alive standard: a fetus that was never bom
*53
legal
alive could not have been killed in the
...
It is this standard
sense.
early
century by
as the seventeenth
[articulated
Coke]
[United States]
legislatures
upheld
jurisdic-
courts and
inherited and that still is
in some
Shah,
tions.”);
note,
Legal
M.
“Inconsistencies in the
Status of an Unborn
Recognition
Life,”
931,
Child:
of a Fetus as Potential
29 Hofstra L. Rev.
936
(2001) (“[d]uring
century,
uniformly adopted
the nineteenth
American courts
law”).
in the context of criminal
To the
[b]om [a]live [r]ule
extent that
protected
who,
injured
having
útero,
the rule
the class of victims
been
in
injuries
alive,
being
died
highly
from those
after
bom
the rule served a
salutary purpose,
any
why
and we are unable to conceive of
reason
it would
accepted
not have been
as the common law of this state.
41
concurring
opinion,
dissenting
In his
and
Justice Zarella refuses to credit
expressed by Zephaniah
respect
the views
Swift with
to the common-law
underpinnings
doing so,
ignores
of the bom alive
In
rule.
Justice Zarella
development
(as
the fact that “Swift led the
of an American
distinct from
English)
an
common law. He wrote the first text on American
in 1795
[l]aw
1796,setting
forth the common law Connecticut based on the actual
of
practices
judges.” (Emphasis added.)
Horton,
of local
W.
The Connecticut
(1993) p. 19;
State Constitution: A Reference Guide
see also Walkinshaw
O’Brien,
122, 132,
(1943) (characterizing
v.
130 Conn.
685
p.
Horton, supra,
scholars”);
19
legal
W.
our
“among
learned of
the most
Indeed,
jurists”).
early
greatest
American
of “the
(characterizing Swift as one
purpose
consistently
on Swift for
repeatedly
has relied
this court
E.g.,
variety
contexts.
wide
of
ascertaining
law in a
state’s common
this
of
(1999) (setting
671, 692-94,
forth
A.2d 913
Griffin,
741
Conn.
v.
251
State
by Swift);
jury
respect
rights
trials as enumerated
with
common-law
(Katz, J., concurring
23, 78,
(1998)
Sabo,
latures, Fetal
http://www.ncsl.org/programs/health/fethom.htm
at
May 27, 2010).
visited
(last
jurisdic-
in other
the recent
trend
Notwithstanding
person
as a
for
a viable fetus
recognizing
tions toward
jurisdic-
those
homicide statutes of
purposes of the
of
killing
states have elected to treat
tions,47several
only
fetuses,
protect
many
Although
statutes
viable
of these fetal homicide
scope
apply
regardless
all fetuses
limited in
some are not so
Sup. 2009) (“[t]he
viability. See, e.g.,
(3) (Cum.
term
§
Ala. Code 13A-6-1
assault,
[person],
referring
homicide or
to the victim of
criminal
when
any stage
being, including
at
an unborn child in útero
means a human
(a) (Deering
development,
viability”);
regardless
§
Cal. Penal Code 187
being,
fetus,
killing
2008) (“[mjurder
or a
is the unlawful
of human
aforethought”).
malice
accepts
proposition
as uncontroverted the
We note that Justice Zarella
supra,
Forsythe;
Forsythe,
21 Val. U. L. Eev.
D.
see C.
articulated
Clarke
developed
longer
563;
no
as a rule of causation and
that “the bom alive rule
Specifically,
necessary
. . .”
Justice
in medical science .
is
due to advances
capable
assessing
that,
technology had
“if medical
been
Zarella asserts
past,
there would have been no reason
of the fetus in times
the health
abrogated
creating
Although
the bom
some courts have
the bom alive rule.”
evidentiary
purely
longer needed for
on the basis that the rule is no
alive rule
rejected Forsythe’s theory
purposes,
commentators have
a number of
driven, explaining
overly simplistic
ideologically
that the bom alive rule
example,
defining legal personhood.
one such
For
is a substantive rule for
evidentiary
“Forsythe wrong
purely
nature
about the
commentator states:
*58
why
that there are three reasons
alive
It seems rather
of the [bom
rule].
conviction, only one
law
on live birth for a homicide
the common
insisted
Forsythe
evidentiary.
gives namely, that in
That is the reason
of which is
—
miscarriage
past,
possible
that a
or stillbirth was
it was not
to be sure
pregnant woman,
the fetus was
attack on the
or whether
the result of the
past
always
Indeed,
it was not
clear if the
attack.
in the
dead before the
evidentiary reason,
pregnant. However, in addition to this
was even
woman
why
traditionally
live birth
has been considered
there are two other reasons
part
First, prior
birth,
significant.
to be a
to live
the fetus was considered
woman,
separate
pregnant
not a
existence. In
words [of
[the]
is,
being]
Holmes],
in
until it was
it was not in esse [that
Oliver Wendell
fully
yet
developed
being,
Second,
a
is not
a
human
bom alive.
a fetus
expressed by
great
person
common-law
like
rest of us. This was
Coke,
killing
‘great
authority,
held that the
of a fetus is a
Sir Edward
who
misprision,
and then dies from
murder.’ But if the child is bom alive
and no
murder,
mother,
a
‘forin law it is accounted reasonable
the attack on its
this is
[Moreover,
natura,
creature,
Sir
in
when it is bom alive.’
William]
rerum
aggravated
a form of
fetus, a viable
fetus, including
person
closely
killed must be a “rea-
Coke.
. . .
followed
‘[T]he
Blackstone
peace,”
king’s
time of the
being
at the
in
and under the
creature
sonable
killing . . . .’
* * *
evidentiary
by
may
considerations.
have been influenced
“Blackstone
that the common
However,
with the fact
does not cohere
this
alone]
[factor
by
recovery
prenatally
a child who
inflicted wounds
allow
for
law did not
refusing
such suits was not the
for
to allow
live birth. The reason
survived
by
plaintiffs injuries
proving
evidentiary problem
were caused
that the
universally
Rather,
negligence.
that the defendant
it was
held
defendant’s
neg-
duty
being
was not in esse at the time of the
of care to a
owed no
ligence.
separate existence,
requirement
seems, then,
nor
“It
that neither
solely
creature,
being
is based
on the difficulties
a reasonable
that of
pregnant
proving
killed the fetus. If the bom
on the
woman
that the attack
legal person,
properly interpreted as
substantive definition of a
alive rule is
merely evidentiary,
in
is not made obsolete
advances medical
and is not
it
Legal
Steinbock,
technology.”
The Moral and
Status
B.
Life Before Birth:
University
1992)
3, pp. 105-107;
Embryos
(Oxford
Press
c.
and Fetuses
Indefensible?,”
Saveli,
‘Bom Alive’ Rule Outdated and
see also K.
“Is the
Forsythe
concedes,
theory]
Sydney
625,633
(“[a]s
(2006)
himself
L.
[his
Rev.
body
authority
of modem
stands in stark contradiction to a substantial
legal personality
does not attain
until it
of the view that the
[favor]
[fetus]
Greer, supra,
(“The
People
alive”);
693 family McMechen’s in útero. that dies of a fetus killing recog- legislation to enact state lawmakers petitioned of this purposes for person as a fetus an unborn nizing Standing Joint Conn. See, e.g., homicide statutes. state’s pp. Sess., Judiciary, 9, Pt. Hearings, Committee No. House Bill Raised response, In 2806-2807. 2797, the Definition Concerning “An Act entitled 5747 (2002), referred to Code,” in Penal Person of a Section 2002. on March committee judiciary “ when used to ‘person’, the term provided that the bill a viable includes homicide], victim of describe the [a March was held on on the bill public hearing A fetus.” both people testified which numerous 2002, at Com- Standing Conn. Joint See, e.g., bill. against 2307-18, Sess., pp. Judiciary, 8,2002 Pt. Hearings, mittee P. Michael Representative hearing, At the 2402-39. cochairperson, committee judiciary Lawlor, word used the historically had the state explained that that had not criminal statutes “person” its 1600s. was chartered” since the changed “[s]tate opposed that he indicated, moreover, p. 2405. He Id., homi- under the “person” the definition expanding other because, among to include a fetus cide statutes penalty eligible another death reasons, it would create 2429. Id., p. offense. Americans United president of Forsythe, D.
Clarke of the common-law opponent leading for Life and a Id., pp. the bill. in favor of rule,49 spoke alive bom past several that, Forsythe argued 2402-17. “[o]ver in Connecticut assaults a number of criminal years have human beings of unborn the death resulting law remedy exists in the criminal that no demonstrated is needed. and that legislation to the outdated remedy in the law is due “The lack of pre- mle which law bom alive obsolete common supra, Forsythe, generally, e.g., 21 Val. U. L. Rev. 563. C. See charge vents a homicide when a child is stillborn an At law, assault. common an killing of after unborn human was not treated as a homicide unless *61 the child was bom alive and died thereafter and bom alive does birth, not mean term it doesn’t mean [forty] simply weeks It gestation. expulsion means from the womb any at time of pregnancy.
“It is a rule of a location, rule of evidence . . . that gestation[ai] has no time limitation thus, a charge of homicide can be if a criminal brought assault results in any at miscarriage time [during] gestation, long as the expulsion child dies after from the womb. . . . may have made medical sense four
“[W]hile [the rule] centuries when it in ago was created 1601 in English courts, it has been rendered obsolete modem medi- cal science. With modem medical science, applica- tion of the bom alive rule leads to absurd results. Here in Connecticut, prenatal assault that results in a mis- and death after carriage birth at one month gestation can be as a homicide even charged the fetus is though only a prenatal month old. While a assault, as in the case . . . McMechen, at eight months or nine months that stillbirth, results can never result in a charge homicide.” (Emphasis Id., pp. added.) 2403-2404; see id., pp. 2417-19, also of Bill O’Brien, remarks legislative president vice of Connecticut Right Corporation. to Life Thus, those testifying favor of the bill acknowledged that its would serve passage abrogate the bom alive rule, they which, also acknowledged, embodied the common law of this state. judiciary Members of the committee questioned both for and the bill against these witnesses at some in an effort length to understand the rationale underlying bill, its ramifications, and the extent to which other states had enacted similar legis- lation.50 example, Forsythe significant For testified that a number of states had killing
enacted statutes that treat the of a fetus as some form of homicide. Standing Hearings, Judiciary, Sess., See Conn. Joint Committee Pt. against testified Many rights organizations abortion direc- Werner, C. executive example, Elaine the bill. For Abortion the National affiliate of of the Connecticut tor that, League, argued Action Reproductive Rights status for separate legal focusing creating on “[b]y actually would than whether the bill fetuses, rather politi- promotion of a conduct, I fear the criminal deter do with nothing that has agenda cal agenda —an pre- Although . . . women. against pregnant violence actually at eroding it aimed fighting, crime sented as Roe v. Wade.”51 under right constitutional a woman’s Judiciary, Hearings, Committee Standing Joint Conn. Winjum, B. director Sess., p. 2809. Lisa Pt. Sex- for Connecticut policy and communication public *62 the “bill stated that Services, Inc., Crisis ual Assault policy public and legal the door to numerous opens free- privacy reproductive and in the areas concerns strongly “We Winjum stated further: Id., p. dom.” 2783. prevent to anything it will not do the bill because oppose life. single will it save a women. Nor against violence pri- right to undermine a woman’s Those who seek try sepa- continually reproductive freedom vacy legal rights of the fetus from the legal rights rate the Jaff, attorney, argued C. an the mother.”52Id. Jennifer Forsythe pp. Representative the exact K. Hamm asked about 2404-10. Gail Forsythe statutes, and those states that had enacted such number of twenty-seven “changed responded approximately their law states had that Forsythe Id., p. and, effect, rule.” 2412. abolished the bom alive statute Massachusetts, states, including responded that the courts of two further “basically [they apply alive rule in the case would the bom [held] not] Id. of a viable fetus.” 51 113, 153-54, 163-65, 705, Wade, L. 93 S. Ct. 35 Ed. 2d 147 410 U.S. Roe constitutionally setting parameters (1973) (recognizing and forth of woman’s protected right abortion). fully testimony illustrates, foregoing more and as we discuss As the primary hereinafter, homicide laws obstacle to the institution of fetal killing political treating of a has been “the concern that [the nationwide constitutionally protected reproductive free as homicide would erode fetus] Curran, note, . . . .” D. “Abandonment and Reconciliation: doms Laws,” Objections Addressing to Fetal Homicide Political and Common Law 1107, (2009). 58 Duke L.J. public policy” predicated bill was “bad on the premise false “that the interests of the woman and those body separated can developing of the fetus inside her be fact, they inextricably joined.” p. are 2785. when, Id., opposition bill, In it was not light strong judiciary reported out of the committee. 25, 2002, 5747,
On March Substitute House Bill No. “An Concerning Pregnant entitled Act Assault of a Woman,” reported favorably judiciary out of the committee. The bill was described one senator as “compromise” pro-life pro-choice between the groups. Proc., Sess., p. 1013, See 46 S. Pt. Cook; id., p. remarks of Senator Catherine W. see also 1010, remarks of Senator Donald E. Williams, Jr. (noting support” “unique “broad and describing for bill alli- pro-choice pro-life sup- ance” between groups porting proposed legislation). Although the House passed bill, the substitute the Senate never acted on it expiration legislative before the of the 2002 session. The substitute bill was resurrected in the 2003 session as Senate Bill No. 355. A on the bill was held hearing February Lloyd on Susan Yolen, chairperson 2003. Choice, the Connecticut Coalition for testified that positive “the contained in is the result language [the bill] *63 compromise place that took last In the [s]ession. reproductive acrimonious battle over generally rights, questions which has often centered on the what status and are accorded to the rights fetus, wording example stands as a rare of accord. Sponsors this bill year’s pro-choice community bill last assured that it intent to language was their establish help . . . would rights would erode abortion [but that] injustice woman, done when a mitigate pregnant with a or an child, assailant, wanted is harmed killed pregnancy resulting language her is ended. The a good agreement the result of faith effort to reach on perpetrator suitably punish that would approach an Joint felony.” Conn. a class A an assault such making Pt. Judiciary, Hearings, Committee Standing 521. Sess., p. previ testified those who had many of
Although in testified also support of the 2002 bill year in ous that the bill complained bill, some of the 2003 support term not define the it did enough far because go did not viable fetus include a Penal Code to in our “person” mle. bom alive to abolish the did not serve and, thus, the bill “continues testified that example, O’Brien For medically obsolete adherence Connecticut’s [the] in 1601.” [recognized] which was alive rule . . . bom longer child no explained that Id., p. 424. O’Brien “[a] whether or prove for science to to be bom alive needs in the womb” at a certain time child was alive not the “move Connecticut’s implored legislature and abandon out of the courts and the law [1600s] join technologically other more bom alive mle century in using [twenty-first] states sophisticated unborn if an medical science to determine modem from some natural injuries or death resulted child’s 668-69, Id.; id., pp. an assault.” see also cause or from [leg that “the Forsythe (arguing of Clarke 671, remarks bom obsolete and outdated islature should abolish the different lan in Connecticut” and suggesting alive mle mle while that would serve to abolish in 2003 bill guage Thus, reproductive women). freedoms of protecting of the the abolition to advocate for some continued judiciary committee rale, alive and members bom actively involved that discussion.53 continued to be Representative exchange example, in one between O’Brien For expressed problem Farr, is not that we the view that Robert O’Brien “[t]he problem person. recognize as a the unborn child Connecticut don’t requires to take its first . . . we have the bom alive rule [that it] is that Standing you prove person].” Joint that it is a Conn. can breath [before Representative Judiciary, 2,2003 Sess., p. Hearings, Farr Pt. 426. Committee *64 ultimately is, responded, bill that became the bill before us” —that “[b]ut [just] conception, “actually treat from it doesn’t P.A. a fetus] [covers 03-21—
Ultimately,
opted
the legislature
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
irrespective
of the fetus,
of whether the fetus was viable
when the pregnancy was terminated. See P.A. 03-21.
By
express terms,
applies only
its
P.A. 03-21
to “the
termination of
pregnancy that does not result in a
[a]
birth,”
clearly
live
language
reflects the legislature’s
awareness that it
exception
out an
for an
carving
infant who is bom alive but who thereafter dies from
injuries sustained in útero. The
excep-
reason for this
hardly
tion could
in
be clearer
of the
light
legislative
debate
preceded
the enactment of P.A. 03-21,
namely, the legislature’s
that an infant who
recognition
subsequently
is bom alive but
injuries
dies from
sus-
in
already
protected by
tained
útero
virtue of the
operation
pursuant
of the bom alive rule,
to which the
infant’s death is treated as a homicide.54
separate
acknowledged
it as a
case of murder . . . .’’Id. O’Brien thereafter
agreement
Representative
his
Farr’s characterization of the 2003bill. Id.
history
legislative
only
notwithstanding,
P.A.
03-21
there is
one
possible
why
legislature opted
protection
reason
within
include
provision only
namely,
alive,
of that
those fetuses that are not bom
the bom
rule,
legislature
operates
alive
of which the
was well aware and which
protect
injuries
an infant who
suffers
útero but who is bom alive and
injuries. Indeed,
then dies from those
neither Justice Zarella nor the defen
posits any
why
dant
other conceivable reason
P.A. 03-21 excludes from its
purview
subsequently
injuries
an infant who is bom alive but who
dies from
Moreover,
sustained
útero.
we do not share Justice Zarella’s view that
legislature
consequences
was oblivious to the
of its enactment of P.A.
respect
prenatal injuries
03-21 with
to the class of victims who die from
being
unwilling
legislature
after
bom alive because
arewe
to assume that the
any thought
regard
victims,
enacted P.A. 03-21without
or
for that class of
especially
legislature
in view of the fact that the
was well aware of the bom
generally
pendency
present
specifically. Indeed,
alive rule
and the
of the
case
fully hereinafter,
squared
as we discuss more
Justice Zarella’sview cannot be
principles
statutory construction, including
with numerous fundamental
principle
legislature
consequences
that the
is deemed to intend the
See,
existing
e.g.,
its action or lack thereof on all
statutes.
Civardi v. Nor
wich,
287, 298,
(1994).
231 Conn.
“This new crime does not the murder statutes. affect law, person Under Connecticut case cannot be charged baby baby with murder is unless bom of period alive and some time.” (Emphasis lives of Research, Legislative Report Office of Research added.) supra. No. 2003-R-0488,
In light which, of the centuries old bom alive rule — universally as we has explained, have been recognized throughout country courts and commentators deeply rooted the common law —and the passage history surrounding of and P.A. legislative 03-21, we properly conclude that the trial court determined that birth, ‘person’ capital felony and then died was a murder and after under the statutes. The court on similar murder statutes and the common law relied ‘person’ qualified to rule as a she was that Antonia because bom alive.” Id. subsequently dies alive and who who is bom an infant in útero ais that he or she had sustained injuries homicide of this state’s “person” meaning within the this course, court tme, it is Although statutes.56 the bom has no to consider previously had occasion a commentator than no authoritative rule, alive less acknowledged the expressly Chief Justice Swift former rule more than 200 import applicability years ago. position that note, furthermore, that, under the
We subject not advances, he would be the defendant any penalty Rodgers eight because greater he Antonia than would pregnant one-half months time she at the pregnant have if had been been necessary consequence her This result death. *67 mle was contention that the bom alive the defendant’s he statutory in when attacked not embodied our scheme subject would be to Rodgers; the defendant killed liability more. Rodgers’ nothing murder and criminal legislature that presume We to unwilling are especially light a in of the clear result, intended such P.A. 03-21. legislative history of defendant, contends that we Zarella, Justice like the rale to the bom alive because recognize should decline widespread gained It that it is obsolete. is true the rale possible a not to at time when it was deter- acceptance part a was in útero. In for that whether fetus alive mine prove to a live birth required the law the state reason, was possibility that the fetus guard against in prohibited engaged alive when defendant course, Of in medical science have conduct. advances 56 years recognize after the that P.A. 03-21 was enacted several defen We That fact dant the offenses of which he stands convicted. does committed analysis, however, bom alive rule was the common not alter our because the offenses. law of this state when the defendant committed those Public merely legislature to reaffirm the Act reflects the decision of the 03-21 applicability abrogate of the rule rather than it. 702 possible
now it a fetus made determine whether and, to that prior conduct, consequently, alive the bom necessary purpose alive is not for the of proving rule evidentiary impedi that fact. With the removal of that ment, majority a of states have seen fit to abandon the rule, they but have done so in statutes favor of killing See, treat the homicide. fetus form of comment, Lotierzo, Child, A. “The Unborn A For e.g., Reexamining Interest: Roe in gotten Light of Increased Temp. of Fetal L. Rev. Recognition Rights,” in a Indeed, 284-85 n.52 few have (2006). states, courts achieved same result in the exercise of their com authority. mon-law v. Cass, supra, See Commonwealth State v. (viable fetus); Horne, supra, Mass. S.C. Those (viable fetus). jurisdictions, 446-47 there repudiated fore, purpose have the bom alive rule for the of expanding protection afforded under their homi only cide statutes to include not those victims who previously had been under but, covered the rule addi considerably tion, group victims, is, broader comprised viable, class victims some states, previable,57 injur fetuses who have suffered fatal ies and died útero. In words, other those states that rejected rule, have the bom alive either legislatively or judicially, have done so in interest of all protecting viable fetuses who suffer fatal injuries, including those *68 that bom alive, are not in addition to those that are but subsequently injuries bom alive die due to sustained in Thus, aptly útero. as the Arizona Court of Appeals explained, has some “[although argue commentators 57See, e.g., (2004) (“[m]urder Idaho § Code Aim. 18-4001 is the unlawful killing being, embryo including, to, of a not human but limited a human or fetus”); (1) (2006) (“[f]or purposes § Code Ann. of Miss. 97-3-37 the offenses capital homicide, assault], being’ murder and the term ‘human includes [of every stage gestation”); an at § unborn child of S.D. Laws 22-16-1 Codified (2006) (“[h]omicide killing being, including is the human of one an unborn however, exception child, another”). states, legal These carve out an performed by professionals. See, e.g., abortions licensed medical Miss. Code (3) (2006). Ann. § 97-3-37 of alive mle is an anachronism light that the bom . . . in the areas of obstetrics and forensics advances applicability of homicide stat- such criticism favors the not unborn, viable, children, to of but utes the deaths . . statutes to babies . who inapplicability such of ” (Citation alive. only viable, are not but are in bom fact Cotton, supra, omitted; emphasis added.) why various In of the reason states light Ariz. 588 n.5. is, because it have the bom alive mle —that abolished unnecessarily those states as underin- now viewed it respect of victims that category clusive with to reject mle, no protects would make sense to —it should, without as Zarella contends that we Justice namely, with a broader one that mle, it replacing of a fetus. killing includes the lead of other liberty We are not at to follow the a of our murder adopting states in broader construction fetus, however, killing statute to include the previously discussed, legislature as we our because, markedly approach majority took a from the different made it a crime under P.A. when, states it 03-21 an against pregnant to commit assault woman pregnancy that the termination of that causes does follow, result in a live birth. For the that reasons provides yet P.A. 03-21 another convincing enactment of why reason alive rale recognition of bom is the only approach respect take appropriate with our that statute, constmction of murder as statute is applied presented.58 to the factual scenario opinion attacking Justice Zarella devotes much of his the born alive past reason, as an rule outmoded relic that Justice Zarella charac —for “ recognition explaining ‘revolting’ terizes our the rule as ”—and to that majority rejected Only lengthy now have rule. his of states after attack legitimacy on the of the rule Justice that it does Zarella concede has been repudiated jurisdictions has to be in other because it been deemed unneces sarily scope, is, restrictive that it does not narrow or because extend Thus, recognizes, must, the murder of a fetus in útero. Justice Zarella he jurisdictions rejected those so that have the rule have done because it they replaced enough is not therefore inclusive have rule *69 killing a broader criminal scheme that includes the intentional of a fetus. crystal
It is clear from the legislative history of P.A. 03-21 that the legislature approach took this because of the concern that treating person fetus as a for purposes of our murder statute might have significant implications in the area of abortion rights. Indeed, the very same preceded debate that the enactment of P.A. 03-21 many has occurred in other states throughout the country, one prompting commentator explain: “Analytically, topic this ais difficult one —on one hand, it hardly controversial to take position that a fetus is a human organism (though personhood the legal of a hotly fetus is debated) that, consequently, killing of a fetus entirely should not go unpunished. But, on the other hand, those advocates of constitutionally protected reproductive rights balk at all classifying unborn children as ‘human for the beings’ purposes of present case, however, reject In the it would be nonsensical to the rule as because, so, doing required too narrow we would be to assume that the legislature statutory scheme, pursuant intended to create an irrational one felony to which process it would be a class A to kill a fetus in the assaulting pregnant woman and no crime at all to cause the death of a subsequently injuries fetus that is bom alive but that dies from sustained only response in útero. Justice Zarella’s to this untenable result is a non sequitur. recognize He states that court’s failure to the bom “[t]his alive ‘repudiation’ rule . . . would not constitute a . . . of alive rule [bom similar to that of other because has not states] [the heretofore been rule] recognized jurisdiction disagree- this and thus cannot be abandoned.” Our previously ment with Justice Zarella that the bom alive rule has not been recognized notwithstanding, response point; this state his is beside the the issue of whether a recognized court or courts of this state have the rule past in the is irrelevant to the issue of whether this court should now decline adopt rejected by the rule for the reason that it has been criticized and states, is, other because it is too narrow. Under no circumstances is reject light that a reason legislature for us to the rule in of the fact that our already killing words, has criminalized the of a fetus in útero. In other jurisdictions rejected reason that outmoded, other have the bom alive rule as namely, places unnecessary scope because it an limitation on the homicide, applicability state, and, crime of therefore, has no in this there rejecting Thus, although reasonably is no basis for the rule. the bom alive rule repudiated jurisdictions, has been up prover- in other Justice Zarella sets attacking outmoded, and, bial straw man in therefore, the bom alive rule as unnecessary, purposes of this state’s homicide statutes. *70 appro- then, becomes challenge, The statutes. homicide unborn and their mothers priately protecting pregnant free- reproductive maintaining while still children . . . doms. unborn recognize opting before
“[Consequently,
the legislature
as potential
children
homicide victims]
countervailing concern:
very carefully a
weigh
must
repro-
constitutionally protected
potential erosion
advocates under-
Many pro-choice
ductive freedoms.
laws encroach on
standably worry that fetal homicide
ultimately result
freedoms and could
reproductive
in these
Couched
outlawing
altogether.
of abortion
many oppose passage
it is
that
terms,
unsurprising
they do
wish to
law,
because
not
fetal homicide
impli-
protect
fetus,
the life of a
but because
issue
politics
Curran,
D.
reproductive rights.”
cates the
Addressing
note, “Abandonment and Reconciliation:
Objections
to Fetal Homi-
Political
Common Law
Laws,”
cide
58 Duke L.J.
1109-10 (2009).
legislative history
surrounding
and debate
precisely
P.A. 03-2159reveals
it was
enactment of
that
prompted
consideration that
to treat
legislature
this
killing
aggravated
of a fetus in útero as an
assault
mother,
legislature accomplished
on the
which the
infant
enacting
03-21,
killing
P.A.
and to treat the
an
injuries sustained
being
who dies after
bom alive from
as
which the
accom-
murder,
legislature
útero
place. Indeed,
plished
the bom alive mle
leaving
both
previously,
speakers,
we noted
two
of whom
as
strenuously before
represented pro-life groups, argued
characterizing
Zarella takes us to
P.A. 03-21 as criminaliz
Justice
task
prohibited
killing
ing of a fetus because the statute classifies the
conduct
and not as a
Justice Zarella’s criticism is unwarranted
as an assault
homicide.
because, although
apregnant
P.A. 03-21
indeed criminalize an assault on
does
or,
words,
woman,
only
pregnancy
it does so
when her
is terminated
in other
Consequently,
inarguable
P.A.
makes it
her fetus
killed.
it is
03-21
fetus,
against
kill a
albeit a crime classified
one
the mother.
crime to
judiciary
that the
alive
committee
bom
rule was
outmoded and obsolete and that it should be abolished
in favor
proposed
they
legislation
favored,60
person
which would have treated a viable fetus as a
under our murder statute.61 See Raised House Bill No.
*71
spoke
5747
who
(2002). Those
the bom alive
against
rule lost the
and the
argument, however,
legislature
Standing
Hearings, Judiciary,
8,
60 SeeConn. Joint
Committee
Pt.
2002
Sess., pp.
id.,
2403-2404,
Forsythe;
pp. 2417-19,
remarks of
see also
remarks
of O’Brien.
61Indeed,
recently
pro
rights publication
it
has been observed in a
abortion
spoke
bill, namely, Forsythe,
that one of
in
those who
favor of the
the
president
Life,
United
of Americans
for
is at the forefront of a movement
Wade,
to overturn the
abortion
seminal
case Roe v.
U.S.
93 S.
(1973).
Supreme
Ct.
Disregarding enactment,63 preceded that its legislative and the debate history legislative that of House Bill Justice Zarella asserts the Raised (2002) (fetal bill), within which included a viable fetus No. 5747 homicide “person” purposes for our and which of of homicide statutes the definition undermining rejected potential legislature due concerns about its the freedoms, history suggest reproductive legislative and of P.A. 03-21 an the adopt legislature unwillingness the alive the the bom rale because bill, namely, “employs exactly the same solution as the fetal homicide rale independent rights by imposing punishment granting legal a the fetus death, clearly step legislature expressly a . . . was unwill related to its the analysis because, ing This is off mark under the fetal homicide to take.” the any person, bill, accorded same other a viable fetus is treatment protection whereas, rule, alive statutes under the bom of homicide only longer and, consequently, no is when the fetus is bom alive is extended Thus, contrary assertion, there is a to Justice Zarella’s fetus but child. absolutely nothing treating death a child as a homicide about of such implicates any prompted legislature to of the same concerns that that reject bill. the fetal homicide disregards itself, claiming Zarella also the bom alive rale that Justice opinion. law this it never was the common of this state. See footnote reject
Justice Zarella would us have the bom alive rule as outmoded even in contrast to those other though, states that have done we would P.A. so, be barred 03-21 from it with a broader replacing and, claimed, it more and enlightened encompasses modem rule that of a killing approach fetus in útero. The Justice that urges, however, simply why Zarella the reason ignores opted the legislature preserve rule, the bom alive compromise is, response that to facilitate the crafted in positions to the competing by pro-life advocated pro-choice supporters. Thus, agree we that although the bom alive rule no is necessary to ensure that longer injuries was alive viable when fetus led to demise inflicted, its were our has legislature decided to retain the for an altogether rule different namely, reason, pro- to accommodate the concerns supporters choice opposed who treating killing a fetus in útero as murder.
Moreover, light policy the legisla- decision of led 03-21, judicial ture that to the enactment of P.A. abrogation the bom alive rule would to a result lead unprecedented that is both absurd; event, person fatally injures who fetus that dies útero subject would be penalties to severe criminal under 03-21, person P.A. whereas subject that same would be to no criminal sanction for inflicting those same injuries if the *73 is bom subsequently fetus alive and dies from injuries the inflicted in Of course, útero. no state ever has approved approve ever would of—such a —or yet that is that result, the result Justice Zarella would by have the rejecting us achieve bom alive rule. Justice Zarella nevertheless accuses us of “invadfing] legis- prerogative” lative and “violat[ing] separation of powers” to ascribe to the declining legislature such and irrational On contrary, bizarre intent. it is the previously explained, As we Justice Zarella’s contention in the face of flies contrary. overwhelming evidence to the that position Zarella advocates —a position that Justice history the legislative both common sense and defies would P.A. 03-21—that the enactment of surrounding is, that legislature, thwart the obvious intent an infant to that causes classify as a homicide conduct that injuries bom alive as a result being after die classify hand, one útero, on the were inflicted conduct on the mother aggravated an assault as injuries, from same to die in útero fetus causes the other. on Zare- Justice interpretation that surprisingly,
Not
principles of statu-
violates several cardinal
lla advances
repeatedly
this court
example,
For
tory construction.
enacting
or
amending
the legislature,
has stated “that
have
a harmo-
statutes, always
presumed to
created
[is]
quo-
.
body
. .
.” (Internal
of law
nious
consistent
2005-
Inquiry
re Judicial
No.
In
marks
omitted.)
tation
Moreover,
247,
977 A.2d
02,
262,
(2009).
293 Conn.
presumed
legislation
is
to enact
“[j]ust
legislature
the law coherent and consis-
body
that renders
. .
.
contradictory and inconsistent
tent, rather than
responsibility,
in case
their
discharge
courts must
body
law—
adjudication,
that the
case
to [ensure]
statutory
common and
coherent
both
—remains
omitted.) Lough-
marks
quotation
consistent.” (Internal
644,
A.2d 963
Loughlin,
lin
632,
(2006).
Conn.
when
required
together
to read statutes
Thus, “we are
subject
matter
.... Accord-
they related to
same
. . .
meaning
of a statute
determining
ingly, [i]n
at
only
provision
issue,
we look not
at the
but also
coherency
scheme to ensure the
statutory
the broader
quotation
our construction.” (Emphasis
added; internal
Ragaglia,
Teresa T. 272 Conn.
omitted.)
marks
General
words,
to have intended that
which its
or non-
action
effect
produces.” (Emphasis added;
action
internal quotation
Dept.
Safety,
Martinez
Public
marks
v.
omitted.)
263
74, 84,
Furthermore,
Conn.
Indeed, to
has
legislature
the distinction that
agree
adopted,
the classification that would result from the
statutory interpretation that Justice Zarella advocates—
is,
distinguishes
one that
the intentional killing a fetus that dies in útero from the intentional killing an infant who is bom alive but who subsequently dies
injuries
from
inflicted in útero
treating the former
*76
felony
as a class A
and the latter as no crime at all—
utterly
is
irrational. Notably,
previously
as we
have
observed, Justice Zarella has not
any
identified
conceiv-
why
place
able reason
would
legislature
imprima-
its
perverse
tur on such a
In fact,
scheme.64
as we have
explained, to conclude that the legislature has done so
require
would
us both to disregard the manifest intent
in
legislature and,
process,
truly
to
reach
result,
absurd
a course that we refuse to take.65
acknowledges
repudiating
Justice Zarella
the bom alive rule results
statutory
pursuant
felony
in a
scheme
to which it is a class A
under P.A.
fetus,
03-21to assault a
woman that results
the death of her
but no crime
injuries
at all to inflict
on a fetus in útero if that fetus is bom alive and
subsequently
injuries. According
Zarella,
dies of those
to Justice
this result
concern,”
represent
gap
is a “matter of
but it “does not
in the law.” We
why,
gap
scheme,
do not
if
understand
there is no
in the
that scheme
importantly, however,
strongly
nevertheless is a cause for concern. More
we
disagree
gap
with Justice Zarella that there
be
would
no
in the law under
statutory
advocates; indeed,
construction that he
we
it
believe
to be
gap
great
statutory
self-evident that the
would be so
as to render the
scheme
wholly
Although
interpret
irrational.
we must
statutes so as to ensure consis
tency
results; see, e.g.,
Grady, supra,
and to avoid bizarre
Dias v.
292 Conn.
361;
accomplish
construing the statute to
the result that Justice Zarella
precisely
opposite;
statutory
endorses does
that construction renders the
completely
truly
scheme
inconsistent and achieves a
bizarre result.
65Thus, contrary
Zarella,
lenity
to the assertion of Justice
the rule of
is
wholly inapplicable
statutory interpretation
to our resolution of the issue of
presented by
appeal
“[tjhe
this
because
touchstone of
rule ...
[the]
statutory ambiguity.
apply
lenity
. . . Thus . . . courts
do
the rule of
persists
scope
unless a reasonable doubt
about astatute’s intended
even after
language
structure,
legislative history,
motivating
resort to the
and
policies
omitted;
(Citation
emphasis
original;
the statute.”
internal
quotation
omitted.)
Lutters,
198,219,
marks
270 Conn.
Under 53a-54a cause the death of murder with the intent when, person of that or person, another he causes the death its third “the on face allows person. Thus, of a statute limi- for the crime of murder without transferred intent killed. The clear people tation as the number *77 that, when a of statute leads to the result meaning the person in conduct the intent kill some- engages every murder one, separate there can be a count for of person actually (Emphasis killed the conduct.” 309. Hinton, supra, Although State v. 227 Conn. added.) “per- victim requires 53a-54a that the murder be a (a) § there in that a tem- son,” nothing provision requiring person the status as a poral nexus between victim’s person’s and the that the death.66 brings conduct about Moreover, persuasive cited no the defendant has support authority, none, we are aware in of his of required temporal when, claim that such a nexus is present with murder case, charged the the defendant is of who is arising out of the death an infant bom alive injuries but who later dies from sustained in útero. Indeed, virtually every court has considered a simi- that clearly rather, that establish that the common-law bom alive those sources rule is embodied in our murder statute. argues contrary; 66 Although Zarella see 42 of Justice to the footnote already opinion; argument that this lacks merit for the reasons we have enumerated.
lar applicability of challenge the bom alive rule rejected has it.67 example,
For
in Cuellar v. State, supra, 957 S.W.2d
134, the
Frank
defendant,
Cuellar,
Flores
was convicted
only
support
case that
Zarella
Justice
has found to
his contention
concerning
purported requirement
temporal
of a
nexus between the
Aiwohi,
defendant’s conduct
the victim’s
status is State
109 Haw.
(2005),
717 omitted]). time act occurred” status at the [citations reasoning forego- with the of agree We generally ing cases. legislative of finally, that,
We under the doctrine note, may legis- that the failure of acquiescence, we infer a reasonable action within lature take corrective to interpreta- judicial a definitive period following of time with that signals legislative agreement tion of a statute See, Mfg., Mahon v. B.V. Unitron interpretation. e.g., 935 1004 645, 665-66, (2007). A.2d Inc., 284 Conn. inaction is legislative we are aware that “Although pre- we also affirmation ... necessarily legislative inter- is aware of legislature sume that the court’s] [this statute, subsequent its nonaction pretation of a and that interpreta- be a validation of that may understood as Id., quotation marks 665. omitted.) tion.” (Internal v. Fernando Under court’s recent decision State this we 20 A.2d also A., n.15, (2009), 427 Conn. officially published to apply are free to the doctrine A. is Superior Court. Fernando relevant decisions of has present case the bom mle been because alive published Superior decisions, in two Court recognized supra, Anonymous (1986-1), Conn. namely, twenty Sup. years which was decided more than ago, Courchesne, supra, Sup. 63, and State 46 Conn. which years ago. Thus, was decided more than ten A., permitted presume under would be Fernando we of abrogate that the failure bom legislature alive mle our Penal Code constitutes amending legis- rely lative We on the approval the mle. need not presumption A., available to us under Fernando how- ever, history genealogy light legislative because, previously explained, P.A. 03-21 we that history that the genealogy demonstrates, first, legis- Anonymous lature was aware both and Courchesne when P.A. it 03-21, and, second, it enacted enacted P.A. appreciation that, although 03-21 with full
provision protects only those that are injured fetuses statute, and die in our útero, 53a-54a, murder embod- § and, therefore, protects ies the bom alive rule those injured infants who in útero who are but nevertheless are bom do not die after birth.68 alive and until
In sum, the bom alive rule is well established in the common law this 03-21 state, and P.A. reflects the *81 68Contrary expressed by Zarella, to the view Justice our decision in Valeri Bronson, 75, 90, 546 rejected (1988), ano 209 A.2d in which Conn. 1380 we year day represented a claim a that the and rule the common law of this state, applicability present genesis rule, has no case. of that year which bars a conviction if homicide the victim does die within one day misconduct, primitive and one of the criminal was the concern that medical not discern the science could cause of death reasonable cer tainty. See, e.g., (2008). § Am. Jur. 2d Homicide Valeriano is inapposite day vitality year might because whatever the and a rule once had, longer necessary have to the rule no due medical and scientific By contrast, rule, although necessary longer advances. the bom alive no advances, a rule of similar to causation due to continues serve a vital function component light legislative policy as a Penal in of our Code of the decision Thus, rejection killing not to treat the fetus as a form of homicide. rejection year day rule, rule, the bom alive unlike of the would lead killing to a bizarre and untenable result: the of an infant who dies from injuries being crime, in after suffered útero bom alive would not be a whereas killing felony the of a fetus who dies útero would be a class A under P.A. possibly explained, legislature 03-21. As we the could not have intended such a result. legislature Justice Zarella also asserts that the failure of the renounce light present the bom alive rule in of the trial in the court’s decision case recognize years ago; generally more than eleven see rule State v. Courchesne, Sup. 63; supra, Conn. is attributable to the fact that this litigation. concurring case remains in See footnote 32 of Justice Zarella’s dissenting opinion. We do not share view of Justice Zarella’s the reason If, legislature’s maintains, for the inaction. as Justice Zarella it were the position legislature represent of the that the bom alive rule does not state, imagine legislature law of this we that the would cannot sit back and permit expense, state, great penalty against at to seek the death only defendant, has, repudiate rule, so, as it this court if does not do wrongfully years. after the been defendant has confined on death row for presume, that, rather, legislature disagreed We if the with the trial court’s recognition rule, legislature of the bom alive would have acted in the involved, including effectively judiciary, interests of all terminated capital proceedings against by clarifying position the defendant its on the bom alive rule. express Moreover, rule. acceptance of the legislature’s or elsewhere nothing there is our homicide statutes application suggest in the Penal Code to by any requirement temporal of a nexus rule is barred between the defendant’s conduct and the status of the victim.
Ill TRANSFERRED INTENT UNDER 53a-54a (a) § We next address the defendant’s related contention misapplied that the trial court the doctrine trans- rely ferred intent permitting state to on that legal principle that the defendant establishing had murdered Specifically, Antonia. the defendant asserts that his intent to kill Rodgers could not be transferred to Antonia because, at the time he assaulted and killed Rodgers, yet person Antonia was not within the mean- *82 of 53a-54a ing (a). § to the According defendant, transferred intent principle applied “has never been situations which the per- defendant’s intent to kill a son is transferred entity to another that had legally attained the ‘person’ status of a at the time the defendant acted.” Our recognition applicability of the of the bom alive mle to the law of dispositive homicide also is the defendant’s transferred intent claim.
The doctrine of transferred
operates
intent
to render
culpable
defendant
of the
person
murder of a third
when the defendant
per-
causes the death of that third
son with the intent to cause the death of someone else.
State Higgins,
See,
e.g.,
265 Conn.
51-52, 826
State Henry, supra,
Aswe injuries person on a fetus in útero with who inflicts guilty if is of murder the intent to kill that fetus subsequently dies as a result of fetus is bom alive but Consequently, injuries in útero. the bom suffered person operates fetus a for to render the alive rule having purposes fetus, if our homicide statutes injured bom alive and útero, nevertheless is been injuries in útero. Put differ- sustained then dies ently, particular scenario, factual the fetus is in that any person. Thus, who, a defendant treated like other injuries pregnant intending inflicts on woman, to kill a prove only is to be fatal after the fetus the fetus that the fetus has achieved the status alive, is, bom once guilty person of murder rule, under the bom alive of a by operation intent doctrine embod- of the transferred (a). § words, In because a fetus that ied in 53a-54a other person purposes alive is a of our homicide is bom provisions § intent of 53a-54a statutes, the transferred applicable equally (a) is bom alive are to a fetus that any person. they are to other provided persuasive reason has no The defendant represents why principles, each of which these two public policy of this state as determined applied pur- legislature, in tandem for should not be statutory poses interpreting scheme. In the our reject any his claim that reason, such we absence provisions (a) § are intent of 53a-54a the transferred inapplicable present case.69 *83 authority urges supervisory over the The defendant us to invoke our Padua, 178, justice; see, 138, e.g., State 273 Conn. administration of eligible (2005); for the death A.2d 192 and hold that a defendant cannot be application penalty predicated of the bom alive rule and the on the dual invitation to do of transferred intent. We decline the defendant’s doctrine provided reasons, primarily legislature has no so for several because present they applied together when, not be as indication that should justification they applicability. case, We therefore see no both have authority supervisory legislature invoking intent of the our to thwart the the manner that the defendant advocates.
IV
CLAIMS
AND EX POST FACTO
DUE PROCESS
application defendant next claims that the
conduct,
prospective
his
rather than
bom alive rule to
fair notice under
application only,
right
violates his
United
post
and ex
facto clauses of the
process
the due
He
opinion.
See footnote 29 of this
States constitution.
integration”
contends that the court’s “novel
further
intent
alive rule and the doctrine of transferred
the bom
theory
unconstitutionally
an
of murder
vague
“created
words,
. . . .’’In other
applied
conduct
[his]
person in his
defendant contends that a reasonable
he assaulted
could not
position,
Rodgers,
at the time
violated
presumed
be
to have known that his actions
felony
respect
with
capital
the murder and
statutes
claims.
disagree
Antonia. We also
these
principle
give
“The basic
that a criminal statute must
fair
of the conduct
that it makes a crime has
warning
by
Supreme]
States
recognized
often been
United
[the
84 S.
Columbia,
347, 350-51,
Court.” Bouie v.
378 U.S.
1697,
Ct.
722 the fair manifestations of are three related
“There
bars
doctrine
requirement. First,
vagueness
warning
forbids or
a statute which either
of
enforcement
so
that men
vague
of an act in terms
requires
doing
necessarily
at its
guess
must
intelligence
of common
. . . Second
application.70
differ as to its
meaning and
of criminal stat-
of strict construction
. . . the canon
by so resolv-
warning
fair
lenity,
rule of
ensures
utes, or
only
apply
as to
it
in a criminal statute
ambiguity
ing
.
States v.
clearly
.
. United
covered.71
to conduct
1219, 137 L. Ed.
259, 266, 117 S. Ct.
Lanier, 520 U.S.
doubt that a
can be no
Third,
(1997).
2d 432
[t]here
. . .
warning
fair
can result
right
of the
deprivation
judicial
and retroactive
an unforeseeable
also from
statutory language.
precise
narrow and
expansion of
352. In each of these
Columbia, supra,
v.
378 U.S.
Bouie
“70
clearly
unequivocally
vagueness unless it
is not void for
statute
[A]
validity
every presumption
unconstitutional,
its
to be
in favor of
[is
is
[and]
unconstitutionally vague
made],
... To demonstrate
[a statute]
beyond
defendant,
applied
. . .
a reasonable
he
demonstrate
to
must]
[the
prohibited
inadequate
or that
notice of what was
[he
doubt that
had
[he]
discriminatory
arbitrary
. . .
enforcement.
[T]he
victim of
was]
precepts:
right
fair
vagueness
two central
doctrine embodies
void for
guarantee against
warning
governing
. . . and the
of a
statute
of the effect
fairly
meaning
can be
...
If the
statute
law enforcement.
standardless
[m]any
vagueness since
statutes
will not be void for
ascertained a statute
phrases
English
vagueness,
words and
for most
will
some inherent
[i]n
have
judicial opinions involving the
.
.
. References
there lurk uncertainties.
necessary
may
law,
dictionaries,
statute,
legal
be
or treatises
the common
warning.” (Internal
meaning
gives
if it
fair
to determine
ascertain a statute’s
753, 759,
Winot,
omitted.)
combination challenging warning the fair doctrine tions of applied rale as constitutionality of the bom alive 532 U.S. Tennessee, supra, Rogers In present case.72 those addressed Supreme States Court 451, the United in so requirement and, doing, warning the fair aspects of had articu- previously that it approach reaffirmed 378 U.S. Columbia, supra, in Bouie lated which we had held decisions in “Reviewing explaining: under the void for vagueness criminal statutes [d]ue that this we noted [p]rocess [c]lause, [c]ourt Bouie] [in that a criminal principle the basic recognized has often have been “motion to dismiss should contends that his The defendant [panel’s] integration alive rule and granted novel of the bom because the unconstitutionally theory vague an of transferred intent created the doctrine applied . . . under . . . the due conduct . . . and of murder as [his] be process . . . should ... of the United States [constitution] [clause] contention, only.” support applied prospectively the defen In of this broad person claims, specifically, in the defendant’s more that reasonable dant “[a] position that his actions he acted would not have understood at the time felony capital as to the future Antonia murder and statutes violated the convictions necessitated strained .... Because defendant’s] [the unprecedented interpretation application of the ‘bom alive’ rule and doctrine, application rule of law to intent of this new the transferred right process retroactively . to due violates his . . constitutional him therefore, recognition essence, claims that our law.” In the defendant fundamentally application unfair because alive rule and its to him is the bom statutory interpretation. reasonably anticipated As have he could not because, hereinafter, process explain fails the defendant’s due claim we discussed, previously an established common- the bom alive rule was we therefore, enacted; rule, principle has when our Penal Code was law and, accordingly, time, homicide statutes since that been embodied in our defendant, public generally, is deemed to be on notice as with the applicability of the rule. warning give it
statute must fair of the conduct that Deprivation right . . . to fair makes warning crime. statutory vague . . . from lan- can result both judi- guage and from an unforeseeable and retroactive statutory appears expansion language that cial precise . . . narrow and on its face. For reason judicial . . . construction of a criminal statute is [i]f unexpected and indefensible reference to the law *86 expressed prior issue, which had been to the conduct in given [the construction] must not be retroactive quotation (Citations internal marks omitted; effect.”73 Rogers supra, omitted.) v. Tennessee, 457. process therefore,
In
the due
clause
essence,
“requires only
give
warning
that the law
sufficient
may
men
conduct themselves so as to avoid that which
potential
and thus not lull the
defendant
forbidden,
security, givinghim
into a false sense of
no reason even
suspect
might
scope.”
to
that his conduct
be within its
quotation
(Internal
omitted.)
v. Garvin,
marks
Rubin
(2d
2008).
461,
“Furthermore,
544 F.3d
469
Cir.
language
ambiguities
unavoidable
of
do not transform
every
judicial
circumstance which
construction is
necessary
requirement:
fair
into a violation of the
notice
vagueness
rough
‘The root of the
doctrine is
idea of
principle designed
fairness. It is not a
to convert into
73
Rogers
explained why
The court in
further
reaffirmation of the Bouie
appropriate: “We
this
on
standard was
believe
the due
[that]
[restriction
judicial
process
application
interpretations
limitations on the retroactive
of
unexpected
that are
and
of criminal statutes to those
indefensible
refer
expressed prior
ence to the law that had been
to the conduct
in issue]
adequately serves the
law context
....
It accords common law
common
leeway they
enjoy
they
daily
engage
courts the substantial
must
in the
formulating
passing
interpreting
criminal defenses and
such
task of
and
[on]
may
intent, reevaluating
refining
doctrines as causation and
and
them as
necessary
conformity
bring
logic
the common law into
be
to
adequately respects
process
common sense. It also
the due
concern with
protects
arbitrary judicial
against
or
fundamental
fairness and
vindictive
unjustified
unpredictable
lawmaking
safeguarding
against
defendants
Tennessee,
prior
Rogers
supra,
breaks with
law.”
v.
725 practical difficulties dilemma the a constitutional take enough general criminal statutes both drawing sufficiently variety of human conduct into account a that certain kinds of warning fair specific provide Kentucky, 407 U.S. prohibited.’ Colten conduct are 584 110, 1953, (1972) 92 Ct. L. Ed. 2d 104, S. Bronx, Ortiz v. N.Y.S. Parole in omitted.)
(Citations
words,
In
149,
(2d
other
N.Y.,
2009).
586 F.3d
Cir.
provide
process
require
does
statutes
“[d]ue
laundry
prohibited
may
gen-
list
conduct.
be
[L]aws
prohibited
include
range
eral in nature so as to
a wide
no more than a rea-
requires
conduct. The constitution
certainty.”
quotation
marks
(Internal
sonable degree
Wilchinski,
242 Conn.
omitted.) State
.
.
Moreover,
process
is not
.
A.2d
(1997).
“[d]ue
is a matter
first
simply
violated
because
issue
quotation
impression.”
marks
Ortiz
(Internal
omitted.)
Bronx, N.Y., supra,
Thus,
v. N.Y.S.
159.
Parole
judicial
retroactive
of a
decision
be
application
will
*87
to
“an
sort
represent
deemed
exercise of the
of unfair
which
arbitrary judicial
action
against
[d]ue
protect”
[pjrocess
only
aims to
if that decision
[c]lause
unpredictable
constitutes
“a marked and
departure
prior
Tennessee,
.
.
precedent
Rogers
from
.
.”
supra,
Subsequent Rogers, this
in
court,
Miranda,
to
State
supra,
the fair warning
Conn.
observed that
Rogers
are
principles articulated
andBouie
“in accor-
warning jurisprudence.
dance
our fair
We consis-
tently have
recognize
held that
we also
[w]hile
be
criminal
are to
construed
the lan-
strictly,
statutes
in a
given
criminal statute need not be
its narrow-
guage
possible
A
est
construction.
...
statute
not uncon-
merely
inquire
because a
must
further
person
stitutional
precise
reach of its prohibitions.
as to
...
In addi-
judicial
stat-
tion,
opinions involving the
[references
law,
dictionaries, or
ute,
legal
the common
treatises
may be necessary to ascertain a statute’s
meaning
if
determine
it
fair
.
gives
warning.
. . We
can
[also]
guide judicial opinions
use as a
that, [although] not
on
binding
court,
this
refer to the
in question
statute
or to a statute that uses similar language.” (Citations
omitted;
quotation
internal
marks omitted.)
Id., 105-
106; see also Rose v. Locke, supra,
Furthermore, because this
routinely
court
relies on
settled principles
statutory
interpretation to ascer-
tain the meaning of an ambiguous statute, our reasoned
application
ordinary
of those
tools of construction no
will
interpretation
doubt
result in an
of the statute at
issue that is both foreseeable and
pur-
defensible for
poses
v. Miranda,
See process.
of due
supra, 260
Conn. 109
reach
(“To
the conclusion that
did,
we
we
ordinary
relied on
statutory
tools of
construction. Those
tools
statutory
construction demonstrated
reference to
law
as it then existed, it was neither
unexpected nor indefensible
[interpret
statute
the manner that we
This same
did].”).
applies
standard
closely
defendant’s
related vagueness claim. In
view of the fact that a statute is not unconstitutional
merely because it is ambiguous
requires
or
further
investigation,
prevail
the defendant can
on his claim
under the vagueness
only
doctrine
if he can demon-
*88
statutory
strate that the
meaning
fairly
cannot be
ascer-
upon
tained
application of
principles
established
statutory interpretation. See, e.g., State v. Ehlers, 579,
Conn.
591,
Our
under
for
prohibition
facto
post
“The ex
similar lines.
along
any law
enacting]
bids . . . the
[that]
[s]tates [from]
punish
was not
for an act
imposes
punishment
[that]
addi
imposes
... or
it was committed
able at the time
.
.
.
prescribed.
then
to that
punishment
tional
to assure
[fjramers sought
prohibition,
this
Through
effect
fair
of their
warning
legislative
give
[a]cts
their
until
rely
meaning
individuals to
on
permit
Graham, 450 U.S.
. . . Weaver v.
explicitly changed.
2d 17
960,
(1981).
Ct.
67 L. Ed.
24, 28-29, 101 S.
[T]wo
penal
for a criminal or
present
elements must be
critical
retrospective,
facto: it must be
post
law to be ex
its enact
before
is,
apply
occurring
it must
to events
offender affected
disadvantage
and it must
ment,
Washington
marks
Id.,
quotation
omitted.)
it.
29.” (Internal
792,
Correction, 287 Conn.
Commissioner
A.2d 1220
(2008).
judicial construction of
We have
that the
recognized
thus
post
an ex
facto law and
operate
a statute can
like
warning
defendant’s
to fair
right
violate a criminal
See,
Johnson s.
prohibited.
e.g.,
what conduct
n.4,
288 Conn.
58-59
Correction,
Commissioner of
Supreme Court
“[A]
tive statement of what the statute meant before as well
as after the decision of
giving
the case
rise to that
Roadway
. . . Rivers Express, Inc.,
construction.
312-13,
511 U.S.
114 S. Ct.
L.
1510, 128 Ed. 2d 274
when
court
(1994). [Thus],
statute,
construes a
it is
[a]
explaining its
of what
the statute has
understanding
continuously
meant
since the date when it became law.
Washington Commissioner
Correc-
313 n.12.”
Id.,
tion, supra,
Applying
that he
to the
first contention
no merit
defendant’s
the murder
fair notice
his actions violated
lacked
Our
felony
respect
to Antonia.
capital
statutes
and
rejection of the defen-
analysis
previous
leading
inapplicability of the bom
claim
concerning
dant’s
particular,
concluding
in
our reasons for
and,
alive rule
murder
“person,”
term
as used
this state’s
that the
injuries
útero,
who suffers
statute, includes an infant
injuries,
dies
subsequently
bom alive and
from those
and
necessarily
process
are
to the defendant’s due
fatal
State v.
Winot,
Conn.
post
ex
facto claims. See
A.2d 188
statute not void
(criminal
(2010)
by
if its
can be discerned
resort
vagueness
meaning
Wash-
and tools of
constmction);
extratextual sources
ington
Correction,
Commissioner of
supra,
judi-
of
803-804,
application
Conn.
810-11 (retroactive
as func-
inteipretation
operate
cial
of statute did
law
due
equivalent
post
tional
ex
facto
and violate
when
reasoned
process
interpretation
based on
could not
application
tools of constmction and thus
indefensible);
be considered unforeseeable
Miranda, supra,
concluding
United process due claim same essential tively, rejected the case, but in present raises in the defendant that the statutory Miranda, construction Rogers both with the fair notice as consistent upheld that each court predictable and foreseeable less was requirement far incorporating as construction 53a-54a § than our contrary to set- reject bom alive rule. We therefore principles that the commonsense tled law —and to only assertion that law—Justice Schailer’s underlie when he launched “clairvoyan[t]” if the defendant Antonia Rodgers his attack on vicious lethal criminal expected understand the could he have been of his conduct. consequences K. was con- petitioner, Rogers, Wilbert Rogers, In in Tennessee state murder degree victed of second Rogers v. death of the victim. stabbing court for the victim, U.S. who had Tennessee, supra, 532 454. his injuries heart, survived threatening suffered life *92 after which he months, for fifteen died approximately Court injuries. appeal Supreme Id. On to from those com- Tennessee, of that Tennessee’s Rogers claimed day mle, to which a defen- year pursuant mon-law and a victim be of murder unless the dant cannot convicted conduct within has died as result defendant’s day conduct, precluded of his year one and one that victim. v. Rogers, conviction for the murder of the 393, the Tennes- (Tenn. Although 992 S.W.2d 1999). year and a expressly see statutes did not refer day rale, Supreme Court of Tennessee acknowl- viability it the rule in recognized that had of edged part 1907, agreed and both that the rule was parties law. 399. After observ- id., state’s common See judicially or ing legislatively the rule had been jurisdictions original and that abolished most justifications existed, rule the court longer no Id., 401. The court affirmed abolished the rule. Rogers’ conviction, concluding that it did not offend principles process apply due its holding abolishing year day and a rule Rogers’ case. Id., 401-403.
The United
Supreme
States
Court affirmed the judg-
ment of
Supreme
Court of Tennessee;
Rogers
Tennessee, supra,
In Miranda, the defendant, Santos Miranda, who was
twenty-one years old, resided with his
year
sixteen
old
girlfriend
year
and her two
old son and four month
old daughter. State v. Miranda, supra,
On
Court affirmed Miranda’s
appeal, the
injury
conviction for risk of
to a child but reversed his
no
convictions, concluding
assault
he had
legal
duty to act under the circumstances. State v. Miranda,
App.
As we have represented a in and Miranda rela- holdings Rogers of then tively sweeping existing broad and modification present merely in case law, holding whereas our of well estab- application reflects our recognition with lished common-law doctrine in accordance settled principles statutory Indeed, Rogers, of in construction. that Supreme United Court concluded States Supreme common-
Tennessee Court’s abolition retroactively year day applied law and a rule could be a defendant whose conduct occurred court’s before rule. repudiation Rogers, that common-law Under therefore, requirement necessarily notice is not fair highest violated even when a state’s court reverses an rule or completely respect existing course law interpretation applies change that retro- In actively prior that occurred thereto. con- conduct ultimately concluded, subsequent decision, court that Miranda’s This incorrectly convictions not stand because we had construed assault could encompassing at our assault statute as the conduct issue. See Miranda, supra, however, regard, 734. Our Conn. determination bearing applying prior has no on conclusion that the assault statute to our process principles due fair notice. Miranda’s conduct did not violate
trast to Rogers, present any case “does not involve expansion scope liability beyond criminal by previous indicated decisional law.” Ortiz v. N.Y.S. Bronx, Parole in N.Y., supra, 586 F.3d 158. In other words, Rogers, unlike in we have not reversed prior precedent liability in criminal resulting where pre- none viously had fact, existed. In no court of this state has ever even that the suggested bom alive rule is inapplica- ble to our murder statute; on the contrary, as we have explained, the common-law rule, roots of the both in *96 this elsewhere, state and are well established.
Moreover, in
of the
light
of the
holding
United States
Supreme
Rogers,
Corut in
if
even
the bom alive rule
previously had not been
in
recognized
this state, our
decision to do so today would constitute nothing more
than a clarification or iUumination of our murder statute
applied
as
to the facts of this case, based on our consid-
ered view
likely
of what the legislature
intended. In such
circumstances,
the conclusion of the
Rogers
corut in
the Tennessee
concerning
Supreme
repudiation
Court’s
year
of the
day
and a
rule
equally
would be
applicable
to our recognition of the bom alive rule: “Far from a
unpredictable
marked and
departure
prior prece-
from
dent, the court’s decision was a routine exercise of
common law
decisionmaking
which the court
brought the law
conformity
into
with reason and com-
mon
Rogers
sense.”
v. Tennessee, supra,
Our
holding
represents
Miranda
also
a signifi-
cantly
predictable
less foreseeable
application
or
statutory
common law to a
provision than
applica-
our
tion of the bom alive rule in
present
case. In fact,
concluded in Miranda
Appellate
originally
Court
passive
statute to Miranda’s
applying
the assault
unjustifiable
legal
Miranda had no
was
because
conduct
See State v.
duty to act
the circumstances.
under
Moreover, when
Miranda, supra,
App.
41 Conn.
339-40.
supra,
v.
otherwise;
Miranda,
we
State
concluded
remand,
on
determined
230; Appellate Court,
Conn.
unexpected
decision was so
unforeseeable
that our
apply
to fair notice to
right
that it violated Miranda’s
Miranda, supra,
case. See State
decision
his
this court’s
App.
Notwithstanding
305-308.
Conn.
determination;
Miranda,
State v.
subsequent contrary
we
109-10;
Conn.
thereafter concluded
supra, 260
statute
of the assault
original
interpretation
our
to the aid
nonparent’s
failure to come
encompassing
relationship
parent-like
with whom he has a
a child
274 Conn.
“clearly
Miranda, supra,
wrong”;
expansion
it
an unwarranted
734;
represented
because
id.,
733-34; see also
id.,
of the assault statute. See
previous
this
J.,
court’s
(Borden,
concurring) (rejecting
“unwise
interpretation
representing
of assault statute as
*97
in provision
. .
that statute resulting
. extension” of
“amorphous”
id.,
unacceptably
boundaries);
that assault
(Vertefeuille, J., concurring)
(concluding
by implication
be
statute “should not
extended
Nevertheless,
failure to
encompass
act”).
[Miranda’s]
previously
as we
this court
had determined
explained,
ordinary
statutory
use of
of
construction
that our
tools
interpretation
a
the assault
had led to
foreseeable
that
statute, such that Miranda had fair notice
even
his
an
State v.
failure to act could constitute
assault.
Miranda, supra,
Simply put, it is
abide
applied by
and
the United
principles
notice
articulated
in
this court in
Supreme
Rogers
States
Court
represent
precedent—
Miranda —cases that
binding
of the bom
recognition
and also to conclude
our
in
present
principles.
alive
case violates
rule
those
Rogers
nor Miranda
represented
Because neither
a
departure
applica-
marked or unforeseeable
from then
present
represents
which
law,
case,
ble
consider-
ably
example
more conventional and foreseeable
certainly
be
adjudication,
common-law
cannot
deemed
process requirements.
to run afoul of due
For this rea-
process
son,
analysis
the due
Justice Schaller’s con-
opinion is
curring
dissenting
flawed.78
analysis
Schaller’s
Justice
suffers from another fatal
infirmity, namely, his assertion that the trial court incor-
v. Anonymous
concluded that rectly
(1986-1),
Conn.
supra,
Sup. 498, placed
the defendant on notice
of the bom alive rule because the court’s discussion of
Anonymous
merely
Contrary
the rule in
dictum.79
78Justice SchaUer asserts that
have
we
misconstrued the defendant’s due
process claim, apparently
view,
because, in his
we
not address the
“[do]
directly
vagueness
but, instead,
claim
the defen
[defendant’s]
[characterize]
only
retroactivity
process argument
invoking
dant’s due
doctrine.”
concurring
opinion.
dissenting
Footnote 13 of Justice Schaller’s
Justice
misplaced.
aspects
process
is
Schaller’s criticism
Both
of the defendant’s due
claim
on
are founded
the contention that the defendant
not have fair
did
applicability
rule,
that,
notice of the
of the bom alive
a contention
as we
explained,
application
principles
have
is defeated
the fact
of settled
statutory
construction leads to the conclusion that
the rule
embodied
statute
our murder
and has been embodied in that
since
statute
adoption
words,
Penal Code. In
other
the extent that the defendant’s
predicated
vagueness
claim is
both on the
doctrine and on the constitutional
against
application
allegedly
bar
the retroactive
of an
unforeseeable statu
tory interpretation, his claim
on our
founders
that the
determination
murder
statute, fairly construed, prohibits
killing
of a
is bom
fetus that
alive
subsequently
injuries
and that
dies from
sustained in útero.
previously
observed,
As this court
dictum
has
is “an observation or
by judge
pronouncing
opinion upon cause, concerning
remark
an
made
rule, principle,
application
law,
question
some
or
or
of a
the solution
suggested by
bar,
necessarily
the case at
but not
in the
involved
case or
*98
any
essential to its determination . . .
statement of
law
enunciated
[or]
merely by way
illustration, argument,
suggestion.
analogy,
the court
of
or
opinion concerning
Statements and comments in an
rule of law
some
or
proposition
necessarily
legal
not
involved nor essential to determination of
dicta,
adjudication.” (Inter
the case ... are obiter
the force
an
and lack
of
quotation
omitted.)
Waterbury,
63,
n.16,
nal
marks
DeSena
249 Conn.
(1999), quoting
Dictionary (6th
1990).
The
thereafter turned
the mur-
noting
legislature,
enacting
after
“[our]
statute,
der
was familiar with the
[presumably]
general
subject
of common law on
when it
mies
enacted
[the]
id.,
explained that,
. .
[C]ode”;
502;
.
as
[our] [PJenal
statutory
principle
construction,
statute should
“[a]
far-
mle,
the common law
altering
not be construed
import,
than
words of
and should
ther
the statute
any
as making
not be construed
innovation
[on]
express.”
law
fairly
common
which
statute does not
quotation
Id.,
(Internal
omitted.)
quoting
marks
Kish,
740
well settled that the
law,
common
as far back as 1648
. . . held that an
fetus,
unborn
viable or otherwise,
subject
(Citation
could not be the
of [a] homicide.”
omitted.)
Anonymous (1986-1), supra,
State v.
40
Sup.
sup
Conn.
502.The court then cited nine cases in
port
every
of its
assertion
“almost
state court that
has had a homicide statute, similar to Connecticut’s,
being’ explicitly
that did not define ‘human
to include
‘person’
[has]
fetus
held [that] the words
or ‘human
being’ would not include the unborn child or fetus.”
every
Id., 503.The courts in each and
one of the cases
Anonymous expressly
cited
court
relied on
rejecting
the bom alive rule in
a claim that a homicide
prosecution
killing
could lie for the
of a fetus that died
acknowledged
in útero.81The court also
that two other
jurisdiction
operating
sister
courts,
state
each
in a
legislature
common-law crimes, that is, “the
in [those]
merely
existing
states
codified
criminal common law
by prescribing penalties
existing
common law
“recognized
preexisting
crime,” had
that the
common
recognize
killing
law did not
of an unborn child as
they
authority
change
‘homicide,’but felt that
had the
prospectively”
the law
and to treat an unborn child as
person.
citing
supra,
Id.,
Commonwealth v. Cass,
392
supra,
Mass. 799, v. Horne,
State
282S.C.444.These
represented
two courts, which then
the distinct minor
ity
expressly
abrogated
view,
had
the bom alive rule
including
potential
in favor of
a fetus within the class of
Brown,
n.3, 356-57,
226, 229-30, 237-38,
The court retroactively consequences applying of process ble due our murder statute that would interpretation” new of “a Anony v. State purview its viable fetus. include within Sup. Turning (1986-1), supra, 40 Conn. 503-504. mous Home, explained court that even those Cass and to jurisdictions to majority with that agreed courts “have being’ ‘human interpretation of the words apply new would but unborn fetus retroactively to include viable that retroac principles prohibit violate constitutional Cass, v. Id.; laws.” see Commonwealth tive criminal 282 807-808; Horne, supra, supra, 392 Mass. case, from a third approval S.C. 447. After quoting Court, 3d namely, Superior Cal. Keeler Rptr. Supreme in which the (1970), P.2d 87 Cal. to rejected request had the state’s Court California expand the abolish the bom alive mle and to definition to California homicide statutes “person” fetus; id., 631; Anonymous a viable the court in include that, stated “to the accused with murder charge fetus violate the accused’s the unborn but viable would process Anonymous (1986-1), State v. rights.” due supra, 504. its
Finally, Anonymous the court observed “only mle applied invoke the bom alive decision to The Id., murder and to tort law.” 505. the crime of not explained: “American courts have extended court [that] in the also, the benefits of tort law fetuses have uniformly specifically language, absence of inclusive change rule in criminal cases the bom-alive refused objectives and .... rationale is that [differing and criminal law foster the devel- considerations tort principles the same fac- opment governing different added; omitted; emphasis (Citation tual situation.” quotation internal marks Id. omitted.) Thus, court applying clarified its rationale for the bom alive purposes applicable rule for of the criminal law was to tort law. The application court thereafter denied the for an arrest warrant. Id. clearly
As
demonstrates,
discussion
foregoing
Anonymous
expand
court in
declined to
the definition
“person”
of the term
under our murder statute to
an
predi-
include
unborn but viable fetus because of its
cate determination that the
alive
bom
rule had been
*101
incorporated
statute,
into the
and that to abolish the
rule in favor of a
“person”
broader definition of
would
incompatible
process
be
an
due
right
accused’s
fair notice. See
503-504.
id.,
Consequently,
the court’s
of
the bom alive rule in Anonymous recognition
necessary to its conclusion and, therefore, part of its
rather
opin-
than dictum. See footnote 79 this
holding
of
ion. That the
of
recognition
court’s
the bom alive rule
Anonymous
aspect
in
awas
critical
of its holding is
reflected
the fact that a multitude of courts and
Anonymous
commentators have identified
a case in
recognized
applied
which the court
the bom alive
Superior Court,
Vov.
See,
rule.
172
e.g.,
195, 203,
Ariz.
Courchesne,
State
due purposes, principles of the legal articu- lated therein.83 reject
We also
the defendant’s claim that applying
the bom alive rule in combination with the doctrine
of transferred intent
rights
violated his
under the due
process
post
and ex
facto clauses. The bom alive rule
and the doctrine of transferred intent are well estab-
lished. The
deep
bom alive rule has
roots in our com-
law,
explained,
mon
as we have
and our
statute,
murder
namely,
expressly
53a-54a (a),
incorporates the trans-
§
principle.
ferred intent
why
We can think of no reason
application
of these two doctrines
renders
constitutionally
defendant’s conviction
infirm merely
because the defendant’s
implicated
conduct
both doc-
and, consequently,
trines
together formed the basis of
culpability
the defendant’s
for the murder of Antonia.
application
of these doctrines to the defendant was
unforeseeable,
novel or otherwise unfair.
Schaller,
Zarella,
We also note that Justice
like Justice
dismisses Swift’s
commentary explaining
part
that the bom alive rule was a
of our common
law,
incoiporated
statute,
early
and had been
into this state’s murder
as
eighteenth century.
Swift, System
the late
2 Z.
A
of the Laws of the State
Connecticut, supra, pp. 298-99;
part
opinion. Although
see
II of this
apparently
dispute
Justice Schaller
does not
the fact that the
alive rule
bom
firmly
generally”;
“was
entrenched
the common law
footnote 33 of Justice
concurring
dissenting opinion;
Schaller’s
Justice Schaller asserts that
represented
the rule never
the common law of this state because it was
“explicit[ly] adopt[ed]
legislature
never
or the courts of this state.”
fact,
explained,
language
Id. In
as Swift
of the murder statute in effect
commentary
at the time of his
in 1796
indicates
the statute had been
law,”
explained incorpo
drafted “in affirmance of the common
which Swift
Swift, System
rated the “bom alive” rule. 2 Z.
A
of the Laws
the State of
Connecticut, supra, pp.
Moreover,
298-99.
Justice Schaller’s assertion that
principle
part
a rule or
is not to be considered a
of our common law until
recognized explicitly by
legislature
it has been
this state’s
or courts reflects
*103
misunderstanding
the same fundamental
of the common law as that demon
concurring
dissenting opinion.
strated
Justice Zarella in his
See
opinion. Indeed,
explained,
position
footnote 39 of this
as we have
espoused by
squared
princi
Zarella and
Justices
Schaller cannot be
with the
ple
process
simply
presented
that due
is not violated
because the issue
represents
impression.
a matter of first
has
in
contrary,
addressing
as one court
stated
On the
impossible
perceive
how
is
a similar contention: “[I]t
ordinary intelligence
of even less than
an individual
woman
[stabbing
pregnant
a
can fail to be aware that
conduct,
is
lawful
in the chest and
not
repeatedly
back]
perpetrator’s] behavior after
and,
fact,
[stab-
[the
himself of
immediately
divesting
bing]
[fleeing
and]
recognized
. .
indicates that he
clearly
.
[knife]
in his actions.
. . .
criminality involved
suppose
particular
a
simply ludicrous to
that
is
“[I]t
notice of forbidden conduct
provide
statute fails to
fair
crimi-
expressly anticipate every possible
if it does not
perpetra-
. . .
is fatuous for
nal contingency.
[the
[I]t
notice
that he did not receive fair
that
complain
tor]
be
in a criminal manner
could
held
acting
he was
[and
baby
if
criminally liable
woman’s
bom
pregnant
People
subsequently
(Citation omitted.)
alive but
died].”
also
App.
79-80;
Div. 2d
see
United
Hall, supra,
Spencer, supra,
(rejecting
States v.
a result is unfair perverse and creates a incentive for criminals not to render aid to dying their victims, or to secrete their bodies to ensure that medical aid cannot be rendered to the fetus. In State v. Cotton, Ariz. supra, 590-91, the Court of Appeals of Arizona rejected very addressed and this argument, and we agree analysis with that court’s and conclusion.
In Cotton, the defendant,
Cotton,
Lawrence
with two counts of
charged
second degree reckless
accidentally
murder after he
shot and killed his girl-
friend, who was
and one-half
eight
months pregnant.
baby
586. The
Id.,
day
was bom alive but died one
after
bom. Id. Cotton
being
urged the Arizona Court of
Superior
in Vov.
Appeals
Court,
to extend its
reasoning
supra,
172 Ariz.
in which the court had concluded
that the definition
“person”
under the Arizona first
degree murder statute did not include a
Id.;
fetus.
see
v. Cotton, supra,
“It is inconceivable that legislature [the Arizona] would have perpetrator escape intended responsibility for child’s death in the former sce- nario, but latter. To the not the extent Cotton is correct in that the between the arguing interplay fetal statute and the murder statutes has cre- manslaughter ated a perverse incentive not to render aid to a dying to best addressed policy are fetus, arguments his appropriate forum for which is legislature, appropriate.” (Cita- any, if reform is determining what, omitted.) tions Id. in Cotton. court reasoning
We agree with the defendant’s determine, If we consistent were that the definition of present case, contention capital felony statutes “person” under our murder and include infant who is bom alive later does not an we would be injuries útero, dies inflicted in also from through its required legislature, to conclude that the punish an assault 03-21, enactment of P.A. intended on a that causes termination pregnant woman birth, in a live on her that does not result pregnancy for the same hand, punishment but intended no one bom but dies happens if the to be alive conduct fetus on shortly injuries, from its the other hand. thereafter We that the intended such legislature will not assume especially because the result, an irrational and bizarre definitively legislative history P.A. 03-21 surrounding contrary intent.85 legislative establishes bizarre, and, indeed, suggests Schaller that it unfair treat Justice *107 injured harshly responds a an fetus to “eleventh defendant more because alive, only hour” medical care is bom to succumb thereafter its and prenatal injuries. concurring Part I A and footnote 3 of Justice Schaller’s opinion. When, present case, dissenting strongly disagree. and as in the We brutally repeatedly eight and a a woman who is one- defendant stabs die, pregnant her to half months in the chest and abdomen then leaves readily seriously, it is she child will be foreseeable both that and her unborn injured, every possible fatally, if not effort made to and that will be save help the mother and her unborn child when medical becomes available. foreseeability readily fairness satisfied of medical Fundamental is defendant, perfectly intervention, it for who and therefore is reasonable motion, in that sets this horrific chain of events to assume the risk his punished severely depending will be more or less on the extent to conduct any which medical intervention is successful. principles process also it Justice Schaller asserts that violates of due apply present case, thereby the born alive rule in the to hold the defen- criminally responsible because, dant in it Antonia’s death Specifically, argues a crime at all to kill a fetus in útero. Justice Schaller process application that bars due the retroactive the doctrine trans- which, present case, ferred in a in as “criminal intent situation in the intent
Moreover, it is not fundamentally unfair for the legis-
lature to treat the killing of a fetus in one manner and
of an
killing
infant who is bom alive and subse-
quently
prenatal injuries
dies of
in another manner. We
are aware, of course, that the legislature’s decision to
entity
yet
personhood
is transferred toward an
that has
to achieve
status
argument
. . . .” This
also
acknowledges,
lacks merit. As Justice Schaller
court,
Higgins, supra,
50, expressly
this
in
265 Conn.
held that the
may provide
predicate
doctrine of transferred intent
for a conviction
capital felony statute, namely,
Indeed, Higgins,
under our
§ 53a-54b.
we
properly
concluded that the defendant in that case
had been convicted of
capital felony
killing person
age
though
under the
of sixteen even
person
age. Id., 42,
defendant had intended to kill a
over that
59. In
reaching
conclusion,
explained
our
we
that the “doctrine of transferred
may
applied
intent
be
wrongful
when the defendant’s actual mental state and
equivalent
wrongful
conduct are
to the mental state and
conduct that must
proved
charged,
be
under the offense with which he is
even if that offense
contemplated
Id.,
is more serious than
According
offense.”
59.
to Justice
Schaller, however,
applying
we are barred from
the doctrine of transferred
present
here,
intent in the
case because
“we are not concerned with the
child,
transfer of the intent to kill an adult to a
but . . . with the transfer
what,
of the intent to kill from an adult to
at the time of the defendant’s
act,
fetus,
words,
entity
was an unborn
in other
to an
that was not considered
‘person’
Accordingly,
equivalence
under our law.
of mental state and
wrongful
lacking.
conduct is
. . .
underlying
the time of the
[A]t
conduct
convictions, causing
the defendant’s
the death of a fetus in útero was not a
” (Emphasis
original.)
agree
criminal act.
We do not
with Justice Schaller’s
agree
premise,
conclusion
is,
because we do not
injuring
with his
that
subsequently
a fetus that
prenatal injuries
is bom alive and that
dies of those
equivalent
fatally injuring any
person.
not the
Although
other
it is true
that,
1998, killing
legislature
fetus in útero was not a crime—the
did
gap
statutory
not fill that
in the
scheme until 2003 with its enactment of
rule,
P.A. 03-21—under the bom alive
it was murder if that same fetus was
subsequently
injuries
bom alive and
Because,
died of
sustained in útero.
as
explained,
readily
we have
may
it is
foreseeable that a fetus
be bom alive
prenatal injuries,
and then die from
nothing
there is
unreasonable or unfair
treating
person.
about
Indeed,
that death as the death of a
it is treated as
policy underlying
such
rule,
is,
because of the
the bom alive
a fetus
prenatal injuries
that is bom
precisely
alive but later dies of
is entitled to
protection
any
the same
person.
consideration and
other
Because the
society’s
bom alive rule reflects
reasonable determination that there exists
no
killing
predicated
moral distinction between the
of a child
on conduct
*108
bom,
hand,
after the
killing
predicated
child was
on the one
and the
of a child
on
bom,
conduct that occurred before that child was
on the other—in both
cases,
course,
the defendant also must have had the intent to kill—there
process impediment
prosecuting
exists no due
either under the transferred
intent doctrine.
differently
treat a fetus that dies in útero
from an infant
produces
particularly
who is bom alive
unfortunate
present
case because,
result for the defendant
if
applicable statutory scheme,
under the
he were not
criminally
Antonia,
liable for the murder of
he would
penalty.
adopt
not be
to receive the death
To
eligible
defendant, however,
the contention of the
that an infant
injuries
who is bom alive but later dies of
sustained in
usurp the
person
legislature’s
útero is not a
“would
role
require
inherently
this court to vitiate what is an
....
legislative
categorization
determination
and,
speak-
offenses is a legislative judgment,
generally
it is not the
of courts in this area
ing,
prerogative
lightly
inquiry
to launch an
to resolve a debate
has
[that]
already been settled in the
forum.
. . . We
legislative
authority
possess
defer to the broad
that legislatures
types
punishment
and limits of
determining
rationality
crimes.
of a
Indeed,
examining
legis-
[i]n
classification,
lative
we are bound to defer to the judg-
clearly
ment of the
unless the classification is
legislature
omitted;
irrational and unreasonable.”
inter-
(Citations
quotation
Heinemann,
nal
marks
State v.
omitted.)
281, 310-11,
Conn.
history purpose resolving process P.A. 03-21for the the defendant’s due history only legislative claim. We consider that insofar as it evinces the legislature recognize intent of the the bom alive rule. The defendant’s process recognition due claim fails because our of the rule —an action that apparent legislature— we take because it is that it reflects the intent of the
752
V
THE
AND
CORRECT
EVIDENTIARY SUFFICIENCY
DETERMINING
STANDARD FOR
LEGAL
ANTONIA WAS
WHETHER
ALIVE
BORN
that,
panel
even if the
defendant next claims
applicable
alive rule is
that the bom
properly concluded
is entitled to a
case, he nevertheless
present
respect
to the murder
acquittal
with
judgment
to the death of Antonia
felony
pertaining
capital
charges
insufficient
to establish
the evidence was
because
alive
that Antonia was bom
beyond a reasonable doubt
what
it
defining
Connecticut
law
“prevailing
under
marks
quotation
omitted.)
(Internal
means to be alive.”87
panel
contends
Specifically,
the defendant
articulated
this court
apply
principles
failed
Guess, supra,
State
244
761. We
agree
v.
Conn.
panel improperly
contention that
the defendant’s
articulated in Guess
principles
apply
failed to
nor the
trial,
parties
neither the
because, at the time
principles
of those
appreciated the relevance
panel
sufficient
Because the evidence was
present
case.
under the stan-
support
the defendant’s conviction
apply, however,
did
the defendant
panel
dard that the
claims; rather,
as he
he
acquittal,
not entitled to an
is
with reference to the law as it
unforeseeable or indefensible
no sense
existed in 1998.
87
a live
is an essential element
that the
It is well established that
birth
Bolar, supra,
E.g., People
beyond
prove
v.
doubt.
state must
reasonable
389; People Selwa,
App. 451, 469,
App.
543 N.W.2d
v.
214 Mich.
109 Ill.
3d
934,
State
appeal denied,
(1996);
v.
(1995),
N.W.2d 307
453 Mich.
557
321
State,
Elliott,
(2002); Bennett v.
227, 240,
377 P.2d
308 Mont.
A found Guess of murder. Following conviction, appealed 763. his Guess Appellate Court, claiming that the evidence was insuffi- support probable cient to of cause that he finding McCoy had because, maintained, legal killed Guess McCoy’s life-sup- cause of death was his removal from port systems McCoy. rather than Guess’ shooting particular, that, See id. In Guess contended “because adopted Determina- legislature had the Uniform Act,88 tion of Death and because the did not legislature death, define death in the Penal Code to include brain provides: Section 1 of the Uniform Determination of Death Act of 1980 (1) “An circula individual who has sustained either irreversible cessation of tory respiratory functions, (2) or irreversible cessation of all functions brain, including stem, of the entire the brain is dead. A determination of accepted death must be made in accordance with medical standards.” Unif. Thus, act, (2008). § Determination of Death Act 12A U.L.A. 781 under the ways. can in one of death be established two [McCoy’s] who or what caused court, determining death, use a common-law definition
death, must . . . but rather include brain death which does not circulatory solely the cessation depends [on] body.” Id., 766-67. The functions of the respiratory rejected claim, “concluding Guess’ Appellate Court [McCoy’s] death was the bullet proximate cause of sustained, disconnecting he had and the act wound had been systems [McCoy] after support the life medically act was a reasonable declared brain dead nor constituted [McCoy’s] caused death that neither cause so as to intervening negate sufficient [Guess’] State Id., 763-64, citing of death.” acts as the cause *111 Guess, Conn. A.2d 849 App. 790, 800, (1997). certification petition of Guess’ for
Upon granting our if the that, legislature we concluded even appeal, of Death the Uniform Determination adopted had not under the Penal operative definition of death Act as adjudica- common-law could, we “as a matter of Code, in tandem with medical define term tion, [the] [death] they evolved in recent technology science [had] Guess, supra, State 771. After years.” noting Conn. expanded to an definition developments that had led fields; id., 772-78; see legal in the medical and of death ‘death’ as that term is meaning we “construe[d] a brain-based defini- in the Penal Code to include used 780; placing thus the common-law death”; id., tion of with the definition of death in conformance definition of Death term under the Uniform Determination of that We therefore deter- opinion. 88 of this Act. See footnote that an individ- law, of our common mined, purposes has sustained person dead if that ual is deemed to be circulatory respira- cessation of either irreversible of all functions irreversible cessation tory functions or the brain stem. See brain, including of the entire Guess, supra, 780. that “our emphasized we conclusion, our reaching In determining criteria for brain-based recognition determi- any prior judicial unfaithful to death [was] identi- phenomenon single remains the nations. Death criteria are supplemental law; common fied at conditions changed account for the merely adapted to so as to a machine body may be attached that a dead of life. It reflects demonstrably false indicia to exhibit complete in the understanding that improved an brain, the tradi- functioning irreversible absence of lungs heart and the tional loci of life—the —function from outside only originating as a result of stimuli an part function as body again and will never marks omit- quotation organism.” (Internal integrated Id., 780-81. ted.) in Guess concerning
In of our determination light standard, death we concluded applicability of the brain properly case had found the trial court in that Guess with the crime of mur- probable charge cause to “Because the trial Specifically, 781. we stated: Id., der. reasonably cause found probable court at the hearing caused extensive shooting [McCoy] act of [Guess’] with no evidence of leaving [McCoy] brain damage, *112 properly the court found that the state function, brain probable charge had established cause to [Guess] the crime of murder.” Id. present court, the defendant appeal
On to this that the brain death standard that we case concedes Guess adopted supplant was not intended to merely but, rather, definition traditional common-law establishing as an alternative basis for supplement it contends, nevertheless, He when death has occurred. in Guess per- that a that, recognized because the court support may life have being son who is sustained on may dead, brain even died, is, person though that be to exhibit traditional of person signs that continues respiratory functions, the life, namely, circulatory and that Antonia was bom alive proving state’s burden of disprove any hypothe- reasonable required the state “to actually sis from the evidence that arising [Antonia] . . . she was extracted from the womb died before placed support.” (Emphasis added.) on The defen- life evidence maintains, moreover, dant that the state’s testimony failed to meet this standard because department physician who Palmer, emergency solely on the fact that Antonia, delivered was based breathing had a heartbeat and was she Antonia after a ventilator. The defendant further placed had been on Wayne testimony of Harold that, light claims examiner, medical that Anton- II, Carver the state’s chief “badly was and “contained areas damaged” ia’s brain away atrophy or of the tissues” as result wasting very deprivation, pos- there is a real prenatal oxygen required disprove, that sibility, which the state and, Antonia was brain dead at the time of her birth therefore, “person” meaning was not a within the murder statute. the state’s response,
In the state contends that evidence of brain required prove function never has been live birth. The state therefore asserts that the defendant’s reliance misplaced merely is and that Guess stands on Guess person life proposition removing for the from support does not bar a defendant’s conviction for mur- der when the evidence establishes that the defendant’s person’s caused an irreversible cessation of that actions In support. brain function before the removal of life directly view, the state’s Guess neither addressed nor present case, implicitly resolved the issue raised who, delivery, an infant her is, following whether forty-two placed support on life and sustained for support, qualifies life days being before removed from within the of our murder “person” meaning as a statute.89 *113 that, legal further maintains “from both a medical and stand The state question begins question
point, of when life is not the same as the of the ends. . . . when life con- to the merits of the defendant’s turning Before raised that, trial, at the defendant never tention, we note insufficiency he now raises evidentiary claim that the judg- defense moved for a appeal. Although on counsel case-in-chief ment of at the close of the state’s acquittal evidence, insufficiency his claim ground on that on contention the state primarily based had intent prove failed that the defendant had necessary support his conviction for the murder she was a fetus when he engaged Antonia because Thus, her the conduct that caused death. claim insufficiency at evidentiary that defense counsel raised markedly from trial differs the claim defendant defendant, Furthermore, on like the appeal. raises actually that state, panel applied does not contend that Antonia determining a brain function standard was bom alive. not directly
We with the state that Guess does agree what or is type proof address the issue of evidence who is required to establish an infant delivered after prolonged cesarean section suffering oxygen is deprivation immediately placed in útero and on life within of our support “person” meaning murder did factual Indeed, present statute. Guess not scenario required question. import- us to consider that More panel antly, present it is clear that the in the case did apply what relevance, Guess or otherwise consider purposes law, provides “For of the criminal ‘brain death’ a workable i.e., prove establishing standard for that the of an victim causation — thereby ensuring (1) [perpetrator] assault has in that the will not fact died — homicide, escape punishment professional (2) for that the medical who liability. support subject Conversely, will not be life to criminal [withdraws] baby requiring prove the state to that a such as Antonia was not ‘brain dead’ requirement be at the moment of birth would unworkable because such and, consequently, make difficult to would it far more establish homicide person baby likely injured far more who could that the not be held causing accountable her death.” *114 any, respect if that case have with might to the issue of Antonia’s status at the time of her birth. apparent, It is rather, panel, that the her determining status, applied pursuant traditional common-law test to which an circulatory infant is bom alive if she has respiratory independent functions that are Indeed, her mother. our review of the record indicates that Guess was men- only tioned once the entire course of the That trial. occurred counsel, when defense at the close of the state’s case-in-chief, acquittal moved for a judgment evidentiary insufficiency. on the ground time, At that primarily defense counsel argued that the state had failed prove possessed requi- that the defendant site intent to murder Antonia because she was still a fetus, person, and not a when the defendant inflicted injuries ultimately on that Rodgers caused Antonia’s death; asserted, defense counsel also however, that the prove state had failed to that the conduct, defendant’s personnel and not the actions of medical in removing support, proximate Antonia from life was the cause of support Antonia’s death. In of this contention, latter Guess, defense counsel relied on that, explaining proof contrast that had been adduced Guess, state in there was no evidence to estab- tending lish that Antonia was brain dead when she was removed support.90 Thus, from life at trial, defense counsel con- tended that the evidence established that Antonia could have been alive when life support removed, support that her from life removing the defen- —not dant’s conduct —had caused her death. In light of the foregoing apparent it is argument, defendant, viewed Guess like the state, merely as a causation case.91
90 response attorney argument, In to defense counsel’s the state’s asserted that the evidence established that Antonia had lived for four to five hours following support Carver, her removal from life the medical exam performed autopsy, iner who Antonia’s ruled that her death was a homicide. panel judgment acquittal denied the motion for a but did not doing Presumably, however, panel elaborate on its reasons for so. relied to estab- seek moreover, did the defendant time,
At no
witness, that Antonia
any
Palmer or
other
lish, through
contrary,
To the
time of her birth.
dead at the
was brain
*115
theory
defense,
of
the aforementioned
consistent
testimony from
elicited
apparently
counsel
defense
and
was bom
was alive when she
Antonia
Palmer that
which time
at
delivered,
being
weeks after
up until six
more-
state,
support.
removed from life
she was
Palmer or other-
evidence, through
no
over, presented
brain
had demonstrated
whether Antonia
wise, as to
The state’s
thereafter.
time of her birth or
function at the
as part
function
any evidence of brain
to adduce
failure
that Guess
is
appeal
on
argument
case and its
of its
bom
Antonia was
to the issue of whether
inapplicable
did not
that
the state
compel
the conclusion
alive
brain function
required
it was
to establish
believe that
any such
demonstrate
never
sought
and therefore
In light
alive issue.
respect
to the bom
function with
concerning the
contention at trial
of defense counsel’s
defense
equally evident that the
import
Guess,
of
it is
any obligation
not believe that the state had
also did
Finally,
signifi-
satisfy a brain function standard.
suggest
in the record to
cantly,
nothing
there is
court, Damiani, J.,
applied panel
or the
either the
forth in Guess in
whether
determining
standard set
had been bom alive.
Antonia
insufficiency
evidentiary
the claim of
Thus, although
predicated
raises in this court
the defendant
a
whether
application
determining
on the
test
of the
requires
alive that
due consideration
person is
Guess,
apparent
that, in
articulated in
it is
principles
any
parties nor the court had
court,
the trial
neither the
Vpart
set forth in
in mind. For the reasons
such test
Guess,
holding
Appellate
reasoning
which had
Court
on the
who, upon
injuries
that,
on a victim
when a defendant
inflicts
concluded
injuries,
support,
being
of those
from life
dies as a result
removed
Guess, supra,
death. State proximately
causes the victim’s
defendant
App.
Conn.
798-800.
B
opinion,
panel improperly
of this
we conclude that the
apply
purposes
failed to
the Guess standard for
whether Antonia was bom alive.
determining
spe-
More
cifically,
that,
light
that,
we conclude
of the fact
person
circulatory
Guess,
respiratory
whose
support
may
functions are sustained
life
nevertheless
necessarily
have
brain
it
death,
that,
suffered
follows
prove beyond
a reasonable doubt that Antonia was
birth,
disprove
alive at
the state must
that she was
proper remedy
panel’s
brain dead at birth. The
for the
standard
wrong legal
trial, however,
use
is new
acquittal.92
DeJesus, supra,
not a
Cf. State v.
judgment
A Standard the Trial Utilized Court and the Sufficiency of the Evidence
Under That Standard
Guess,
Before
the defendant’s claim under
addressing
we first address his claim that the evidence was insuffi-
92
present case,
panel.
judge
In
finder was a three
the fact
This case
different, however,
jury;
is no
from a case which the fact finder is a
case,
panel applies
applicable, whereas,
the former
the law that it deems
latter,
jury applies
remedy
in the
the law as instructed
the court. The
legal impropriety, however,
case, namely,
for the
is the same in either
a
supra,
DeJesus,
trial.
v.
quotation marks
289 Conn.
omitted.)
519,
The additional following procedural history facts and analysis are relevant to In our of this issue. finding panel Antonia was alive, specific bom made no Rather, panel factual of its own. findings relied on and, particular, the law of the case on the pretrial court, Damiani, J., on the motion ruling to dis- immediately prior miss that the defendant filed to the probable only testify cause hearing. witness at probable hearing regarding cause Antonia’s condi- tion at Palmer, emergency department birth was physician who delivered her. According Palmer, after it was determined that Rodgers could not be resusci- tated, he delivered Antonia cesarean sec- emergency tion. After cutting clamping cord, the umbilical he immediately physician’s handed Antonia to a assistant, pediatric who was a member of the staff standing pediatric to take Antonia intensive care unit for resuscitation. Because Palmer transferred Antonia to physician’s quickly, assistant so his observations of extremely observe, her were limited. He did however, that she was not or breathing making Approxi- sounds. mately thirty minutes delivery, after the Palmer went pediatric intensive care unit to treat a laceration that Antonia had suffered the cesarean during section. At that time, signs her vital were stable and she was breathing with the assistance of a ventilator. Palmer completed appropriate paperwork thereafter for the issuance of certificate, Antonia’s birth signifying she had been weeks, bom alive. Over the next several Antonia, Palmer often checked on who continued to exhibit stable vital with the assistance of the venti- signs *118 ing propriety panel applied determining of the standard that the that Antonia was bom alive. On being after delivered. until died six weeks
lator she that Antonia concluded facts, basis of these Palmer . . . .” state alive, she died The bom, “was she was testimony that to establish Antonia adduced other no was bom alive. Palmer cross-examination, counsel asked
On defense elapsed Rodgers’ arrival had between how much time When the state’s and Antonia’s birth. hospital at relevancy attorney question to the on objected grounds, “trying was deter- explained that he defense counsel alive or And mine the child was bom dead. whether into hospi- when the came the time between mother very baby was significant. tal and when the delivered of the because clearly The time essence [Palmer] personnel] that already has testified fact [medical fetus in útero because any monitoring didn’t do defense The court then asked counsel situation.” in view of the that why question was relevant fact baby was bom already Palmer had testified “that responded: that, “He testified to alive.” Defense counsel give opinion, but he had the basic facts to whether he just I’m whether has the testing we don’t know. attorney The state’s inter- support evidence to [it].” . . jected “you don’t . have to be a doctor to know .... baby baby whether a is bom alive or dead The The overruled the state’s lived weeks.” court [six] attorney’s but observed that Palmer had deliv- objection “was bom ered Antonia and testified that she alive. infant being. baby a human He has an or a [Palmer is] he off, in his arms that and he can tell passes hands or alive baby if the is bom or not.” court further testimony, of Palmer’s it that, light observed did elapsed view the amount of time that had between hospital Antonia’s Rodgers’ arrival at the birth as you we’ll are “relevant, going.” but . . . see where copy defense counsel showed Palmer a Thereafter, certificate, of Antonia’s birth which indicated that she *119 had been bom at a.m., shortly 12:16 after Rodgers had department. been brought emergency He then asked Palmer whether he was “aware of what consti- tutes a fetal death in the state of Connecticut . . . .” attorney The state’s objected, inquired and the court relevancy defense counsel as to the question. responded: Defense counsel “Again, the issue is whether the child was bom alive or not. I understand what opinion was, the doctor’s but I think this is rele- vant to his knowledge law, of Connecticut which is what we are dealing attorney here.” The state’s responded: doctor has baby said that the was “[T]he bom alive. I know doctors great, are but I don’t think somebody when dead, they is bom can them back bring to life for weeks .... This is ridiculous. It’s ludi- [six] questions.” these crous, The court overruled the state’s attorney’s objection, and Palmer then stated that he did specifics know of Connecticut law . . . .” “[t]he Defense counsel whether, asked Palmer when he deliv- Antonia, ered he had examined her to determine whether she had a heartbeat and was Palmer breathing. responded that he except had done nothing cut and clamp cord, the umbilical and hand Antonia over to the physician’s assistant who was waiting to take her to pediatric intensive care unit. Specifically, Palmer personally stated that he had observed sounds,” “[n]o crying,” “no breathing.” “[n]o After defense counsel had finished questioning the court Palmer, indicated that it had a few questions. The court then Palmer what, asked in his opin- medical ion, constitutes a “fetal . death . . .” Palmer “ responded, when the stops baby’s heart and the [t]hat’s no longer viable.” The trial court also asked Palmer whether Antonia was and had a breathing heartbeat thirty when he visited her minutes after her birth. responded Palmer that, time, at that Antonia’s heart was beating she “was on a ventilator.” breathing had state established finding
In its that the decision Antonia bom alive to conclude that probable cause purposes person she was a and, therefore, part: court stated in relevant Code, Penal our “[The] *120 ‘person’ definition of a Connecti- finds that the court are bom and are includes those who cut criminal law Antonia. . . . This does not exclude alive. definition hearing probable . at the cause Palmer . . testified forty-two alive for bom and remained that Antonia was injuries. her days she succumbed to before applicability to interpretation “This of the statute’s support present case finds the facts [com- Courchesne, supra, alive’ rule.” ‘bom mon-law] portion only 67-68. other Sup. 46 Conn. finding is relevant to the court’s
decision that by explanation following alive is the Antonia was bom transferred intent why court the doctrine of as to “Obviously, are alive context: there applied the bom has many an adult victim died some instances which] [in of the fatal blow considerable time after infliction survives, whether wound. If the victim recovers or treatment, medical or or other- by surgical reason of homicide; if the victim dies from wise, yet, there is no wounds, surgi- it is murder. While such medical or such factor may intervening cal treatment be a so-called injury and point of infliction of resul- between the [the] issue death, nevertheless, of homi- tant survival or is the initial circumstances that caused cide resolved death. any why “There no different mle logical is reason successfully apply should to an unborn fetus who of mother independently] delivered alive and lives his time; a reasonable at for sufficient time so least [a] accepted ‘stillborn,’ as not to be as that term is profession society.”94Id., our 75. A medical stillborn passage foregoing We note the court’s decision was taken that the from Anderson, supra, Super. almost verbatim from State N.J. 428-29.
baby baby is a that is dead at birth or that has died before birth. See Stedman’s Dictionary Medical (28th p. Ed. 2006) (defining dead; “stillborn” as “[b]om an denoting birth,” infant dead at “still- defining birth” as birth of an infant who has died “[t]he before delivery”).
On the basis of the it is evident foregoing, that the court determined that Antonia had been “bom and days”; State v. Courchesne, forty-two remained alive for supra, Sup. merely 46 Conn. 67; because she had demon- strated vital signs while sustained on being support life period for that extended of time. This is so because the presented state no other probable evidence at the cause respect to the bom hearing alive issue. That the solely court relied on the fact that Antonia had been *121 forty-two days sustained on a ventilator for in conclud- that ing she had been bom alive also is by evidenced virtue of its questioning of Palmer the regarding mean- of . ing responded “fetal death . . .” Palmer that fetal death occurs stops baby’s “when the heart and the no longer viable.” The court then asked Palmer whether Antonia’s heart was beating and whether she was when he examined her breathing approximately thirty minutes after birth. responded Palmer in the affirmative but noted that she was breathing the assistance of a Thus, ventilator. under the test the court applied, an infant alive, is bom even if she is not breath- ing birth, circulatory at as as her long respiratory and functions are maintained life-support systems for a period of time. the
Following
probable
trial court’s
of
finding
cause,
phase
the
of
guilt
the trial ensued before
panel.
the
the
the
During
guilt phase,
attorney presented
state’s
essentially the same evidence that he had adduced at the
probable cause
addition,
In
the state
hearing.
adduced
testimony from Carver, the state’s chief medical exam-
iner,
performed
who had
an autopsy on Antonia. Carver
described
a homicide and
Antonia’s death as
classified
weighed
infant” who
appearing
as a “normal
Antonia
death, that is,
time of
pounds at the
approximately ten
been with-
support had
hours after ventilation
several
develop-
size and
Carver,
Antonia’s
According
drawn.
baby.95
old
with that of a six week
were consistent
ment
guilty
defendant
as
found the
panel
thereafter
adopted
bom alive
panel
so,
In
charged.
doing
Specifi-
applied.
had
court, Damiani,
J.,
test that
on the defendant’s
of decision
cally, in its memorandum
part:
in relevant
articulation,
panel
stated
motion for
opinion
comprehensive
a .
.
Damiani issued
.
“Judge
applies
it
alive’ rule as
the issue of
‘bom
resolving
felony
state Connecticut.
capital
in the
murder
adopted
and utilized
panel]
mling
. .
has
. [The
concluding as it did that
analysis in
Judge Damiani’s
felony
capital
is
of murder
guilty
defendant
.”96
omitted.)
. . .
charged
(Citation
panel applied,
that the
In
nature
the test
light
by the
apparent
it
that the evidence adduced
state
previously
at
test. we
trial was sufficient to meet that
As
definition of
explained,
traditional common-law
establishing
death was satisfied
evidence
irre-
circulatory
respiratory
func-
versible cessation of
merely required
“life”
Conversely, proof
tions.
*122
circulatory
respiratory
See,
of
and
functions.
evidence
463-64,
People
Selwa,
App. 451,
v.
214 Mich.
543
e.g.,
logically
321
definition
‘fife’
(1995) (“the
N.W.2d
95
testimony
Joseph,
state also
from Antonio
Antonia’s father.
The
elicited
family
Joseph
that
of his
had held Antonia
testified
he and other members
support
she
not die until
after
was removed from life
and that
did
four
she
explain
however,
Joseph,
for
did not
the basis
his
to five hours thereafter.
period.
five
alive for that four or
hour
conclusion that Antonia was
96
that,
trial,
important
to
the defendant never claimed
It is
underscore
at
only claim relative to the issue of
that Antonia was not born alive. His
was
alive
that the bom alive rule
not
whether Antonia had been bom
was
that,
applicable,
our
if
both
it was not embodied in
law and
even
because
applying
present
right
was,
notice.
it
it in
case violated his
to fair
”
flow[s] from
.
.
.
of ‘death,’
definition
and,
“[accordingly,
‘person’
a child is ‘bom
and thus a
alive’
following expulsion
...
if,
or extraction from the
lacking
mother, there
an
is
irreversible cessation of
respiratory
circulatory
appeal
functions”),
and
denied,
(1996);
934,
Mich.
department hospital subsequently at the and placed lung on a ventilator that her function, maintained which, turn, assisted her heart function. While on support, grew life Antonia at about same rate as any other infant would have in the of six course weeks. forty-two support days Antonia remained on life until it after withdrawn, was which she died. Because bodily including circulatory functions, Antonia’s her respiratory independently continued, functions, delivery, following her mother, weeks her for six satisfy state’s evidence was sufficient to standard panel applied phase during guilt that the defendant’s trial.
In
with his
he
connection
claim that
is entitled to
acquittal
judgment
ground
evidentiary
on the
insufficiency,
appears
presume
the defendant
to
panel applied
pursuant
a test
which
the state
required
prove
lived or
Antonia
was able
independently
independently
to live
of her mother support.
presumption
of life
This
is manifested
on
that,
defendant’s reliance
several cases
he asserts,
proposition.97
general
stand
for that
It
true that a few
Court, supra,
Superior
Keeler v.
619,
defendant cites
Cal. 3d
Booth, supra,
Horne, supra,
Commonwealth v.
564 Pa.
282 S.C.
444, Morgan State,
Keeler,
Booth
(1923).
148 Term.
For of our is fact never consideration that defendant court, applied, claimed such a test that neither Superior Court, 623-24; supra, v. the fetus died in útero. See Keeler Common supra, Horne, supra, Booth, 230; v. v. The issue in all three wealth State 446. cases, rather, recognize viable as a was whether the court should a fetus Superior Court, person in of the bom alive rule. See v. contravention Keeler 631; Booth, 229; Horne, supra, supra, supra, v. 446. Commonwealth baby Morgan, floating although the was a found in a creek In issue whether person purposes been alive and therefore was a of the state had bom Morgan State, 419-21; statute; supra, nothing is in that murder see there independent support required suggest that an existence of life was case Rather, Supreme baby bom to establish that the alive. the Tennessee applied by the a standard consistent with the standard Court articulated present “In trial court in the case: order to become a ‘reasonable creature subject being,’ must be bom alive. cannot be of homicide child It usually independent until it has an existence of its mother. It is said severed, independent must been and an circulation the umbilical cord have indepen Ordinarily, breathed, if the child has this would show established. dent life. But this test is not infallible. Sometimes infants breathe before they delivered, they quite fully do are and sometimes not breathe for they however, perceptible period Generally, respiration after are if delivered. established, independent indepen an that also establishes circulation and Id., dent existence.” 420-21.
Damiani, J., panel nor the ever mentioned or otherwise adverted to a standard requiring evidence that Antonia capable was of living independently support, of life any to that no evidence relative such standard was party. adduced either It therefore is clear that both court, Damiani, J., panel pursu- test used a ant to which Antonia was deemed to been have bom merely because, alive as the court was stated, she “suc- cessfully delivered . . . independently] live[d] mother for a at time; reasonable least for suffi- [her] [a] cient time so as not ‘stillborn,’ to be as that term is by the accepted profession society.” medical and our Courchesne, supra, State 46 Conn. Sup. Thus, 75. that some have adopted extent courts a bom alive that requires proof baby indepen- standard that the lived dently of life was support, that not the standard that court, Damiani, J., panel applied. or For the hereinafter, reasons set forth we that conclude proper requires proof that the baby test was not brain birth, and, therefore, dead at the time of the defendant is entitled to a new trial at which will the state be required to meet that standard.
B
Standard Under Guess
Applicable
turn,We
therefore,
to the defendant’s claim that the
required
prove
state
but failed
that Antonia was
dead
purposes
brain
for
establishing
she
analysis
was bom alive. We
our
begin
our
noting
disagreement
the state’s contention that the issue
Guess,
namely,
that we decided
when life ends
for
purposes of
in a
proving
case,
causation
homicide
has
question
no
on the
bearing
pur-
when life
begins
poses
an
determining
whether
infant
been
has
bom
alive under the bom
rule. Although
alive
its relevance
may
readily apparent,
determination Guess
not be
our
person may
that a
be
though
dead even
he or she exhib-
a heartbeat and
life,
is,
indicia of
traditional
its
issue of whether
relevant
respiration,
highly
death
incorporated
at
We
brain
was alive
birth.
Antonia
pre
of death Guess
our common-law definition
into
alive
person
kept
in extremis can be
cisely because a
*125
person
life
even
support
though
the aid of
of
may
an
cessation
already
have suffered
irreversible
Conn.
Guess, supra,
See
v.
244
brain function.
State
explained
that,
under the common
We
Guess
780.
or she
person was not considered dead unless he
law, a
circulatory
cessation of the
had suffered an irreversible
id., 772;
that would seem
respiratory systems;
and
and
systems
functioning
if
were
to hold true even
those
Mitchell,
support.
People
life
only with the aid of
See
Cal.
166
App.
389, 396,
Rptr.
(“In
3d
183
(1982)
132 Cal.
maintain
support equipment
cases . . . life
can
many
artifi
respiration
and
expired person’s
an
circulation
physical breathing,
A
can maintain
cially.
respirator
dioxide levels.
well as balance
carbon
oxygen
if
been
However,
respiration
the victim has
without
enough
permanent
to have caused
irreversible
long
will
in vegeta
the victim
forever remain
damage,
brain
capable of
state,
repository
a mere
for
sur
organs
tive
of
transplanted
elsewhere,
incapable
if
but
viving
corpse
they are
brain of the
in which
regenerating
death,
law definition of
contained. Under
common
F.
also
116
patient
alive.”);
Camp,
see
Law
295,
Sup.
(D.
2000)
2d
304
Conn.
advances
(“[bjecause
. .
possible
it
for .
technology
in medical
made
[have]
bodily
any
in the
brain
functions
continue
absence
function, a
on a mechanical ventilator would
person
law
legally
be
dead under the common
definition
affd,
Appx.
15 Fed.
Cir.
cert.
death”),
(2d
2001),
Ct.
2d
denied,
534 U.S.
122 S.
152 L. Ed.
Kennedy
cf. Strachan v. John F.
Memorial
(2002);
Hospital,
523, 532,
N.J.
It is apparent, however, application that of the tradi- tional test common-law to determine whether Antonia Damiani, J., was bom the alive, court, panel as and the did in does case, this for the possibility account that have Antonia could been brain dead at birth even circulatory her and though respiratory functions were forty-two days sustained for with the assistance of life support.98 If, fact, in that was case, defendant criminally could not be responsible held for her death 98 There is no evidence the record Antonia that breathed or had a placed prior being support. contrary, Palmer, heartbeat on life To the only person testify respect frame, explained to this time breathing Antonia was not and that he did not know whether her heart was beating pediatric immediately when he transferred her to the staff after he delivered her. circum- because, such our murder statute
under útero, and, conse- have died in stances, she would meaning within the “person” she not be a quently, would of murder statute. our of death Guess, this court expanded the definition
In
death
include brain
of the Penal Code to
purposes
requires proof
traditional
test that
as well
circulatory
respiratory
and
the irreversible cessation
did
both because
id., 780. We
so
functions. See
accepted
have long
and
communities
scientific
medical
777;
death; id.,
defining
standard for
brain based
and
that “medical science
of the fact
recognition
and in
point
person’s
where a
evolved to
technology [have]
respiration may be sustained mechani-
heartbeat
loss of all brain
face of an irreversible
cally even
artificially maintain
where machines that
functions, and
wide-
come into
have
[pulmonary]
cardio
[function]
Lamy, supra,
see also 772;
spread
Id.,
use.”
. . .
technology
medical
has advanced
(“As
N.H. 518
mle.
the efforts
Through
so too has the bom alive
a fetus can now be delivered
technology,
doctors
heartbeat,
function,
no
no brain
breathing,
with no
yet
artificially resusci-
have
those functions
of]
[certain
time
Because of these
tated and maintained some
later.
advances,
the bom alive doctrine have
employing
states
spontaneous sign
child
required
show some
*127
independently]
ability
as well as the
to exist
life,
point
future.”),
at some
in the
support
citing
artificial
per-
(providing
Stat. 11.41.140
that
(2008)
Alaska
§
“[a]
car-
spontaneous respiratory
‘alive’ if there is
or
son is
or,
respiratory
function
when
and cardiac
diac
there
means,
are maintained
artificial
is
functions
In
spontaneous
function”).
circumstances,
brain
such
despite
support
is
life
when an individual maintained on
function,
complete absence of brain
death has
the
that
under
the brain death standard
we
occurred
in Guess even
inter-
due to mechanical
adopted
though,
vention, there has been no irreversible cessation of
circulatory
respiratory
case,
functions. In that
therefore, the
that
fact
there has been no irreversible
respiration
cessation
circulation and
functions does
signify
Similarly,
present
not
life.
when,
case,
the
circulatory
respiratory
an infant’s
functions have
artificially
immediately
been maintained
after
since
her
the
birth,
state must establish that she
not
brain
satisfy
require
dead at the time of birth in
order
the
ment
she had been bom alive.99
evidentiary
state
contends that this
standard is
light
exigencies
unworkable in
of the medical
that fre-
quently
According
exist at
time of
state,
birth.
requiringproof
baby
brain function to establish that
had been bom
“would make it far
alive
more difficult
consequently,
likely
and,
to establish homicide
far more
person
injured
baby
that the
who
could not be
causing
Although
held accountable
death.”
for
her
we
acknowledge
depending
that,
on
circumstances,
sat-
may require
proof
isfying
greater
a brain death standard
necessary
than would be
under
traditional bom
rule,
alive
alone
not
fact
does
dictate the test to
adopted
medically
be
because “brain death became the
accepted
determining
for
standard
death some time
ago.”
supra,
Guess,
Moreover,
consideration to the fact that a can be maintained by artificial means even she though has no brain func- Indeed, tion. the of those holdings cases are inconsis- in Guess, tent expressly with our which we holding reaffirm. We therefore that, retrial, conclude on required state will be to establish that Antonia was not brain dead at time of her birth.101
VI PENALTY PHASE CLAIMS sufficiency The defendant also challenges presented by evidence the state penalty phase at the Specifically, the defendant first hearing. contends that Schaller, opinion, concurring dissenting We note that Justice in his acquittal judgment asserts that the defendant is entitled to a due to evidentiary insufficiency. support claim, In of this Justice Schaller contends that, known, process purposes, if the defendant should have for due prosecuted killing Antonia, concluded, he could be as we have then it only state, which, according Schaller, is fair to bar to Justice should applicability present case, retrying have known of the of Guess to the from the defendant for Antonia’s death because the state did not adduce evidence satisfy contrary sufficient to that test. Justice Schaller further asserts that a jeopardy rights. conclusion would violate the defendant’s double provides support legal Justice Schaller no for either contention because argument, appears justice, truly rough unprece- his which to seek a sort of perfectly dented. It is clear that the issue of whether the defendant had fair nothing notice of the bom alive rule has to do with the issue of whether retrying the state should be barred from the defendant for Antonia’s murder ground evidentiary insufficiency; thus, on the Justice Schaller’s assertion “constitutionally required justifies fundamental fairness” somehow their any linkage logic. explained, lacks basis in law or As we the evidence that panel actually the state adduced was sufficient under the test that the did apply; necessary permit that is all that is to the retrial of the defendant. Moreover, although disagree we with Justice Schaller’s assertion that Guess clearly present case, agreed is so relevant to the even if we with Justice point, failing recognize Schaller on that the state was not alone in Guess; panel recognized relevance of neither the defendant nor the it either. manifestly penalize It therefore would be unreasonable and unfair to state for the reason and in the manner advocated In Justice Schaller. short, approach urges that Justice Schaller has no foundation in the law place and no in this case. prove beyond reason- was insufficient the evidence capital had that the defendant committed able doubt heinous, depraved cruel or man- felony especially “in an the defendant requires. Second, ner” as (i) (4) 53a-46a § that he had prove failed contends that state Third, in such a manner. Rodgers intended to murder *130 reasonably jury that the could the defendant contends that factor aggravating outweighed not have found the with any factor or factors in accordance mitigating reject We the defendant’s claims.102 (f). 53a-46a § interpreted aggravating the factor set have “[W]e proof the require forth in to that defen- (i) (4) 53a-46a § in conduct that inflicted dant intentional engaged or or physical psychological pain [suffering] extreme beyond necessarily victim that torture on the above the underlying killing, the and that defen- accompanying specifically pain dant intended to inflict such extreme . . . . torture . . or the defendant [suffering or] psycho- or physical callous or indifferent to the extreme pain, or torture that his intentional logical suffering . . in fact inflicted on the victim. . conduct “In reviewing a claim that evidence fail[ed] support specified factor finding aggravating of an subject finding 53a-46a ... we to the (i)] [§ scrupulous independent same examination of the employ entire that we in our review of constitu- record of a fact-finding, tional such as the voluntariness confes- sion of a ... In ... or seizure defendant. such circumstances, required we are to determine whether findings supported by the factual are substantial evi- dence. . . . 102 Although we have concluded that the defendant is entitled a new capital felony charges,
trial on we address the defendant’s claim insufficiency penalty hearing evidentiary respect phase to the because finding impose the evidence a sentence was insufficient of death preclude imposition penalty would of the death on retrial. See footnote opinion. this 93 of appellate scrutiny
“Even with the heightened appro- priate penalty case, for a death the defendant’s chal- lenge sufficiency of the evidence of aggravating circumstances must be reviewed, analysis, the final the evidence considering presented at the [first] penalty [phase] defendant’s hearing most light impliedly favorable to the facts sustaining found jury. . . . Second, upon we determine whether facts so reasonably construed and the inferences drawn reasonably therefrom the could have [finder fact] concluded that the cumulative force of the evidence established existence of the aggravating [the factor] beyond a . reasonable doubt. . . This court cannot substitute its own for that if judgment jury there is sufficient support jury’s evidence to verdict. . . .
“Furthermore, viewing evidence could [i]n [that] *131 yield contrary jury inferences, the is not barred from those inferences drawing consistent with existence [the of the aggravating required and is not to draw factor] only those inferences consistent with nonexis- [its jury’s The rule is that the function is to draw tence]. whatever inferences from the evidence or facts estab- lished the evidence it deems to be reasonable and . . . logical.
“[Finally], process of it review, does not [i]n [our] probative diminish the force of the evidence that it consists, part, in whole or in of evidence that is circum- stantial rather than direct. ... It is fact, not one but impact the cumulative aof multitude of facts [that] establishes existence of an aggravating [the factor] a case substantial circumstantial involving evidence. . . . Indeed, direct evidence of the defendant’s state of rarely mind is . . . Therefore, available. intent is often inferred . . . from conduct and from the cumulative effect of the circumstantial evidence and the rational omitted; inferences drawn therefrom.” inter- (Citations Colon, supra, State v. quotation omitted.) nal marks Conn. 335-37. penalty presented that at the the state
The evidence that the defendant had phase hearing established who and one- eight was Rodgers, caused the death multiple by stabbing her times pregnant, half months two knife were seated the with a kitchen while police The statement to defendant’s car. defendant’s spoke he murder, on that, night indicates her that he had telephone with on the told Rodgers boyfriend drugs. $365 that he owed her up he her Rodgers pick told that would defendant machine at his an automated bank teller take her to money. In his state- bank, withdraw where he would “really had no ment, explained he the defendant did have paying [Rodgers] because intention [he] any trying fool her.” money, he] [and bank, defendant told they arrived at the When his Rodgers he had bank card. Rodgers forgotten defendant, and, point, with at that upset became . . . a kitchen knife “just grabbed lost it defendant compartment door kept] he the driver’s [that . she Although . . to stab [Rodgers] started [it].” kept he her.” At away, “just stabbing tried some get from the car and ran short point, Rodgers escaped collapsed. she The defendant then distance before “to chase her down.” When car, intending exited the *132 vicinity, he saw there were other cars in the several scared, into his car and however, got he became back away. possi- drove As he he it was fleeing, thought ble he had run over with his car. All he Rodgers time, however, about was not get- could think at the ting caught. presented expert testimony regarding
The state also the nature of the wounds that defendant inflicted on One of the state’s associate medical exam- Rodgers.
iners, Shah, Malka testified that Rodgers had sustained injuries several in a number places of different on her body, including stab wound to her chest and seven stab wounds to her back. The chest wound measured deep, penetrated five and one-half inches and the right border of sternum Rodgers’ and her heart. The most serious stab wound to Rodgers’ back measured five deep penetrated inches and the abdominal cavity. According Shah, to the stab wounds to chest Rodgers’ and abdomen had caused her death. In addition to these wounds, also sustained a Rodgers three inch wound to her face and another wound her chin, to both of which by were sharp object. caused Rodgers also had cuts mouth, around her which bruising by were caused premortem, blunt force trauma unlikely that was to have been caused a fall. The evidence further estab- lished that Rodgers up remained conscious for to seven minutes after the fatal suffering chest wound and that up she lived for to finally fifteen minutes before suc- injuries. cumbing her carefully
Having
considered the evidence adduced
state,
we
supported
jury’s
conclude that it
that the
finding
defendant killed
in an
Rodgers
espe-
cially heinous,
depraved
cruel or
maimer.
jury
The
rea-
sonably could have found that the eight
wounds,
stab
as well
multiple
as the
wounds and blunt force trauma
face,
to Rodgers’
experience
caused her to
extreme
physical
pain
and psychological
above
suffering
beyond
necessary
that which was
accomplish
experienced
and that she
killing,
such
suffering
up to seven minutes.
jury
reasonably
also
could
have
pain
found that Rodgers’ psychological
and suffer-
compounded by
were
ing
subjected
the terror of being
vicious, spontaneous
such a
attack while pregnant,
and that her pregnancy caused her to suffer additional
pain out
psychological
of extreme concern for her
nearly full-term child. See State v. Medrano, 173 Ariz.
*133
knowledge
393, 397,
(1992) (victim’s
supports finding jury that he murdered Rod- heinous, depraved in an gers especially manner, cruel or jury reasonably aggra- could have found factor more fac- vating outweighed one or mitigating tors. The our that, law, state contends under case jury’s determination as to the to be weight accorded
the mitigating and aggravating factors is not reviewable appeal. on The state that, further maintains to the extent that such a determination is reviewable, the evidence presented penalty phase at the hearing permitted jury rationally to conclude that the factor aggravating outweighed any asserted mitigating factors. Assuming without that the deciding defendant’s claim is review- able, we agree with the state that the evidence is suffi- support jury’s cient to determination aggravating any factor outweighed factor mitigating or factors.
The additional following procedural history facts and are relevant to our resolution of this claim. The defen- dant eighteen raised claims of mitigation, two including statutory mitigating factors under 53a-46a The (h).103 § sixteen, nonstatutory factors mitigating were: (1) “[The was found guilty of the murder of Antonia defendant] . . . under the doctrine of transferred intent”; (2) “[p]rior to his convictions for the murders in case, this had no record of criminal convictions”; [the defendant] (3) developed dependence on “[the defendant] cocaine and crack cocaine that negatively affected him personal in his and work life”; (4) cocaine and “[h]is crack dependency directly cocaine led to his relation- ship with . . . Rodgers”; (5) thinking was “[h]is statutory mitigating were, first, The two factors that the defendant’s capacity significantly impaired impaired mental but not so as to consti prosecution; (Rev. 1997) tute a defense to see General Statutes § to 53a-46a (h) (2); second, reasonably that he could not have foreseen that his conduct the course of the commission of the offense of which he was cause, grave causing, convicted would or would create a risk of death to person, is, (Rev. 1997) another that Antonia. See General Statutes § to 53a- jury (h) (4). prove 46a The concluded that the defendant did not either of statutory mitigating preponderance the two factors of the evidence. course, jury proved Of if the had concluded that the defendant had either statutory mitigating factor, ineligible the defendant would have been (Rev. 1997) receive a death (h). sentence. See General Statutes § 53a-46a defendant, however, express jury reasonably raises no claim that the rejected alleged statutory mitigating could not have his two factors. impaired by prior the crack cocaine he to stab- ingested constantly . . . worked bing Rodgers”; (6) “[h]e productively from the of sixteen until ... he was age in September, 1998”; arrested and incarcerated (7) “[h]e person empathetic is a who has been to other caring persons, particularly disabilities”; those with (8) “[h]e others”; has been has and will generous (9) “[h]e *135 productive prison continue to be a well behaved and inmate”; has his both (10) time, volunteered when “[h]e employed and while incarcerated, to work above and beyond required what is of him to the benefit of other persons institutions”; exception and (11) “[w]ith the murders of, that he has been convicted defen- [the is a nonviolent person, unlikely and it is that he dant] will violently behave in the future”; volunta- (12) “[h]e rily written statements to gave Waterbury police”; (13) remorseful”; is not the (14) appropriate “[h]e “[d]eath penalty for defendant]”; (15) “[a]ny other factor [the concerning character, background [the defendant’s] and or the history, nature and circumstances of the crime, that specifically has not been suggested, which juror jury may, or the in fairness and mercy, find is [a] in mitigating nature and constitutes a basis for a sen- tence of imprisonment life without the possibility release”; and (16) cumulative or combined effect “[t]he of all the evidence concerning [of] [the defendant’s] character, background history, or or the nature or cir- crime, juror jury cumstances of the which a or may, in fairness and mercy, find in nature mitigating constitutes a basis for a imprisonment sentence of life possibility without the of release.” jury concluded that the proved by preponderance defendant had the evidence one or more of the foregoing nonstatutory, mitigating factors, specify but it did not which factor or factors it found proven. had been
We begin
analysis
our
with the standard of review.
previously
This court
appellate
has indicated that
respect
determination
jury’s
of a
review
spe-
in a
factors
mitigating
aggravating
weighing
sense.
practical
in the
impossible
be
cific case could
Rizzo,
In (2003),
The state effectively unre- jury engages in which the process decline to consequently, we should that, viewable in process challenge to the defendant’s consider threshold address the state’s case. We need not present in that, we conclude reviewability claim because found reasonably could have jury present case, the factor aggravating that the beyond a reasonable doubt mitigating proven outweighed had that the state by defendant.104 factors alleged appellate engage review of the in a number of states that There are mitigating respect weighing aggravating jury’s decision with explained, jury concluded that previously As we proved by preponderance the defendant had of one or more fac- mitigating evidence the existence specify which factor or factors the tors, but it did that, conclude even if the proven. defendant had We advanced jury mitigating had credited all of the factors defendant, they were not so that the compelling find one or more of those jury required cruel, factors heinous or mitigating outweighed in had mur- depraved manner which the defendant Rodgers. dered presented penalty phase
The evidence
at the
hearing
Rodgers
established that the defendant had induced
pretenses and, thereafter,
into his car under false
get
repeatedly
in the
and back as
had stabbed her
chest
she
for her life and the life of her unborn child.
fought
finally escaped
car,
When
from the
the defen-
Rodgers
car,
hand, intending
dant
out of the
knife
chase
got
Only
sure that she was dead.
when
her down to make
vicinity
in the
and feared that he
he saw other cars
stop
Rodgers.
be seen did he
his vicious assault of
might
undisputed
particular,
In
of this
light
evidence,
Rodgers’ injuries, which,
extensive nature of
in addition
wounds,
to the numerous stab
included blunt force
face,
say
jury
trauma wounds to the
we cannot
that the
reasonably
beyond
could not have found
a reasonable
capital case,
guided
variety
factors in a
and these states are
of standards
performing
See, e.g.,
State,
97, 108,
that review.
Williams v.
338 Ark.
*137
(conclusion
supported by
(1999)
evidence);
S.W.2d 565
must be
substantial
People Hooper,
64, 77,
(conclusion
v.
172 Ill. 2d
KATZ,J., concurring. Justice Zarella relies on which principles ations and opinion strong have dissenting in his concurring and because he reaches on their merits appeal, both death expose the defendant to the result that would not I overcome the anomalous ultimately, cannot penalty, concurring Schaller’s result that his and Justice statutory yield scheme opinions dissenting —a in the death a woman that results makes an assault on 53a- felony under General Statutes § a fetus a class A assault penalty no enhanced when the 59c, imposes but and the results in a live birth woman pregnant on There- a result of the assault. subsequently fetus dies as in its majority opinion recognition I fore, join the law. part rule as a of our common the bom alive majority opinion insofar agree I Although I decide, disagree the issues it does as the resolution of additional claims related not to address with its decision likely are proceedings penalty phase subsequent penalty phase proceeding to arise at a again penalty imposition of the death also contends that The defendant reject arbitrary disproportionate. present was, alia, We case inter that the evidence essential reasons that we conclude this claim for the same imposition penalty support under our of the death was sufficient to capital sentencing scheme. *138 Courchesne, be convicted Robert defendant, should the majori- because the felony phase at the capital guilt of contrary to the those claims ty’s failure to consider proceedings. in the trial every participant interests of on which pertain to matters Many these claims undoubtedly guid- will need court and the trial parties transpire.1 phase proceeding penalty ance should imposi- preclude would of the claims Indeed, some court and the trial parties penalty.2 death tion of the would decide this court have to at how guess should not if indeed mistakes the same issues, making risk these what merit, go through have and claims the defendant’s costly and time-consum- needless, be a turn out to could may unnecessarily exposing be We also exercise. ing reliving family to the heartbreak both the victim’s and penalty phase proceeding in another tragedy their anxiety against defending to the the defendant the state acknowledge death. I another sentence of felony and capital the defendant of may not convict improperly (1) excluded whether: the trial court Such claims include by mitigation evidence, including a statement certain of the defendant’s offense, regarding expressing remorse for the evidence the defendant electronically Waterbmy department’s policy police against for the reasons recording confessions, evidence related to “the insidious allure conclude, grasp cocaine”; (2) unyielding either of crack this court should supervisory pursuant our constitution or to the exercise of under the state may testily penalty phase authority, law enforcement officials at a capital hearing when in a case that the defendant did not show remorse by videotape confessing or offense if those officials failed to record confession; permitted audiotape (3) defense counsel should be to review material, exculpatory to determine if that record contains a sealed record perform review; alternative, court such a or in the whether this should pretrial hearing (4) to a to determine whether the defendant was entitled heinous, especially allegation that the murder was committed in an the state’s by depraved supported probable cruel, manner was cause. or improperly example, denied the defendant claims that the trial court For penalty imposition because the decision motion to bar the of the death his attorney penalty by seek the death was based on the race the state’s in violation of the defendant’s state and federal constitutional the victims attorney allegedly rights made the state’s as evidenced statements defense counsel. *139 that, by the need to address these articulating
caution issues, other I do not mean to intimate that the defen- In I am light caveat, dant would be so convicted. of that persuaded by issuing less a concern that we would be an advisory opinion compelled by potential than I am the family and parties case, harm to the the victim’s judicial economy majority that the risks the interests by to address these claims. declining respectfully I concur.
Accordingly, NORCOTT, J., joins, concur- ZARELLA,J., with whom majority in part dissenting part. Today, the ring capital felony trial for subjects the defendant to another for the first time in the state adopting, and murder alive rule. In so the Connecticut, doing, the bom opinion in an of more than 160 fails to majority, pages, encompasses that the murder statute the demonstrate committed, acts to have been adds a substantive alleged appear not in the statutes proof element of that does the of a fetus governing murder, making killing thus substantive offense not con- that dies after birth new Code, fails to establish that the bom tained in our Penal adopted by provides ever the legislature, alive rule was support for its view that the rule was a convincing no part of the common law of Connecticut and resorts to history enhancing penalty of an act the legislative for an assault on a woman to conclude that pregnant accepted has the rule under our murder legislature felony addition, majority In capital statutes. plain statute, of the murder ignores language ignores what precedent in the area of or fails to address our Connecticut, disregards constitutes the common law of the defendant on process rights relying the due of the rule more purported acceptance the legislature’s years committed, crime was fails to than four after lenity to resolve the employ ambiguities the rule of felony applied capital our murder and statutes any the first time and, case,1 this facts of proposi- of, establishes I am aware jurisdiction require does act of murder criminal that the tion before or either present murder be intent to that the of the crime. commission during approach deeply flawed with this agree I cannot despicable or how horrific because, no matter and the precedent our *140 justify ignoring it does not crime, to all defendants. protections guaranteed constitutional majority opinion, part I of the I concur Accordingly, the trial court majority concludes in which his suppress to motion denied the defendant’s properly him to tying and other evidence written confessions dis- respectfully but Rodgers, the murder of Demetris in which the V,2 II respect parts through to sent with stan- mle, legal devises a adopts the bom alive majority the case for and remands implementation for its dard prove to that the require will the state a new trial that the irreversible by disproving birth baby was alive at generally agree function. I also of all brain cessation opin- dissenting concurring Schaller’s with Justice application majority’s retroactive ion because the defendant of his clearly deprives the bom alive mle to fair notice. process right due
I
in a
once observed
Oliver Wendell Holmes
Justice
to have no better reason
revolting
context: “It is
similar
was laid down
of law than that so it
for a rule
grounds
if the
Henry
revolting
IV. It is still more
time of
since,
vanished long
it was laid down have
upon which
1
n.15,
Courchesne,
537,
and the rule from blind imitation of the past.” Holmes, O. “The Path of Law,” Address at University 8, Boston School of Law (January 1897), 10 Harv. L. Rev. (1897); Muolo, cf. State v. 118 Conn. A. 373, 378-79, 172 Justice Holmes’ (1934).3 particularly apt observation is in the present case because the dearth of medical knowledge prompted early articulation of the bom alive rule in the 1300s no longer exists, and, therefore, grounds adoption its have vanished.4
It is well documented that the bom alive rule evolved a time of medical during limited when it knowledge, necessary to establish that a fetus was alive at the See, time of the criminal act. C. e.g., Forsythe, “Homi- cide of the Unborn Child: The Bom Alive Rule and Anachronisms,” Other 21 Val. U. L. Legal Rev. varying “It is a well settled rule that the law varies with the reasons on expressed by maxim, ratione,
which it is founded. This is
cessante
cesset
ipsa lex. This means that no law can survive the reasons on which it is
*141
change it;
abrogates
founded. It needs no statute to
it
itself. If the reasons
by
reasons,
opposing
on which a law rests are overborne
in
which
progress
society gain
force,
controlling
the old law . . . must cease
apply
controlling principle
(Internal
as a
to the new circumstances.”
quotation
Muolo, supra,
omitted.)
marks
State v.
(13) (B) (i) (a) (Sup. 2009) (for of Arkansas statutes, “person” homicide term includes “an unborn any child útero at of Cal. Penal stage development”); Code 187 unlaw (a) (Deering 2008) (“[m]urder § ful killing fetus, of a human or a with malice being, Fla. Stat. Ann. 782.09 aforethought”); (West 2007) § quick by any unlawful of an unborn (“[t]he killing child, injury to the mother of such child which would be murder if it resulted in the death of such mother, shall be deemed murder in the same as degree that which would have been committed against mother”); Ann. Sup. Idaho Code 18-4001 and 18-4006 (Cum. §§ within 2009) (including definition of “human being,” purposes of murder manslaughter statutes, “a embryo human Comp. or 720 Ill. Stat. Ann. fetus”); 5/ 9-1.2, 5/9-2.1 and 5/9-3.2 (West 2002) homi (proscribing cide of unborn child from fertilization to Ind. birth); Code Ann. (4), 35-42-1-1 35-42-1-3 and 35- (a) (2) §§ 42-1-4 (d) (LexisNexis murder and 2009) (proscribing of viable manslaughter fetus); Kan. Stat. Ann. 21-3452 § (d) (2007) (extending “person” definition of in Kansas’ murder, and vehicular homicide statutes manslaughter child,” to include “an unborn of regardless viability); Ky. Rev. Stat. Ann. 507A.010 (1) (c) §§ and 507A.020 through 507A.050 (LexisNexis 2008) “fetal (proscribing homicide,” which includes intentional or reckless kill of unborn child from ing conception); Ann., Md. Code Crim. Sup. Law 2-103 (LexisNexis 2009) (proscribing § respect murder or with manslaughter to viable fetus); Comp. Mich. Laws Serv. 750.322 (LexisNexis 2003) § wilful “an (designating manslaughter killing of quick unborn Minn. Stat. Ann. child”); (a) 609.266 §§ and 609.2661 609.2665 through (West 2009) (proscribing murder and manslaughter respect child, with to unborn which is defined as “the unborn of a offspring human conceived, yet but not Ann. being bom”); Miss. Code 97-3-37 (1) (2006) (for purposes Mississippi’s homi- § includes an being’ term ‘human “the statutes, cide concep- from every stage of gestation unborn child at (2) Neb. 28-389 birth”); §§ Rev. Stat. tion until live Sup. 2006) (delineating (Cum. 28-394 through 28-391 respect killing of homicide various degrees Nev. any stage development útero); unborn child at wilful killing (2007) (designating Stat. 200.210 Rev. § by any against committed injury quick “unborn child” N.D. Cent. Code as manslaughter); child’s mother *145 (1997) (proscribing 12.1-17.1-04 through 12.1-17.1-01 §§ with homicide murder, manslaughter negligent child, defined as child con- respect to which is unborn Ann. Rev. Code yet bom); Ohio ceived but and Sup. 2009) 2903.06 2006 through (West 2903.01 §§ pregnancy of as homi- unlawful termination (classifying Ann. tit. (A) (B) (West Okla. Stat. 691 cide); § homi- Sup. of unborn child constitutes 2010) (killing 2605 18 Cons. Stat. Ann. 2603 cide); through §§ Pa. manslaughter murder and (West (proscribing 1998) Laws 11-23- respect with to unborn R.I. Gen. child); § wilful quick of “an unborn (2002) (proscribing killing by any injury to would be murder child” mother that if of Code Ann. 16-3- mother); it resulted in death S.C. § Sup. killing of (c) (Cum. 2009) (intentional unborn 22- “punished S.D. Codified Laws murder”); § child [as] killing 16-1 one human (2006) (“[h]omicide child, by an unborn Term. being, including another”); Code Ann. 39-13-214 fetus included (2006) (viable § “person” purposes stat- term for of Tennessee homicide Code Cum. utes); (49) (Vernon Tex. Penal Ann. 1.07 § “death,” respect child, to unborn Sup. 2009) (term purposes failure to be alive” for includes “the bom Texas Code and its homicide Utah provisions); Penal (1) (a) (2003) (person Code Ann. 76-5-201 commits § when death of criminal homicide he causes another any including stage human unborn child at being, (pro- Va. Code Ann. 18.2-32.2 development); (2009) § scribing killing of Wash. fetus); Rev. Code Ann. 9A.32.060 (1) (b) (West 2009) § (designating as first degree manslaughter unlawful and intentional killing quick of unborn injury child infliction of on mother of such W. Va. Code Ann. child); 61-2-30 (LexisNexis § embryo 2005) (recognizing or fetus as distinct victim purposes for of West Virginia’s homicide cf. statutes); Ga. Code Ann. 16-5-80 (2007) (treating § killing unborn fetus as “feticide”); La. Rev. Stat. Ann. 14:32.5 §§ through Sup. 14:32.8 (2007 2010) kill- (designating of unborn ing child as Wis. Stat. Ann. feticide); 940.04 § (West 2005) (proscribing intentional destruction of life of unborn child but not classifying such crime as homi- Supreme The cide). Judicial Court of Massachusetts implicitly rejected also the bom alive rule when it deter- may mined that a defendant charged be with homicide death of viable fetus in útero. Com- causing Cass, monwealth supra, 807; id., Mass. see also 799 (ruling that viable fetus is within ambit of term “person” in vehicular homicide statute).8 legisla- *146 in Alabama, Arkansas, tures Idaho, Kansas, Mississippi, Oklahoma, South Dakota and Utah also have amended their penal codes to include an unborn child or fetus “person” the definition of a or “human being,” thus emphasizing that the critical focus of the fetal homicide statutes is on life rather than birth. This is consistent with the rationale for the bom creating alive rule in the instance, always first because the mle presumed that person. a viable fetus was a requirement The of a live merely birth was prove mechanism to that the death the fetus was caused the defendant’s act and not by some other cause. majority’s adoption of the bom alive rule has at
least three deleterious consequences. First and fore- 8 Lawrence, 378, 383-84, 397, In Commonwealth v. 404 Mass. 536 N.E.2d (1989), upheld the court reaffirmed its earlier decision in Cass and 571 involuntary manslaughter causing defendant’s conviction of the death twenty-seven murdering of a week old fetus in the course of the mother.
797 prerogative legislative invades the most is that court crime, what because the not, what is is, to define majority, has applied rule, as understood under “person” the definition of a amending the effect Statutes 53a-3 statutes; (1) see General § our murder include a “person” being”); as “a human to (defining injur- subsequently but dies from that is bom alive fetus of such a útero, making killing thus ies inflicted court has a new offense. This fetus substantive “in established doctrines acknowledged that, light of primary respon- powers, in the implicit separation classify sibility for the laws that define enacting . . legislature (Citations in the . .” crimes is vested Joyner, State 225 Conn. 450, 625 A.2d 460, omitted.) Hanson, State see 210 Conn. (1993); also (“Where statutory language A.2d (1989) . . must clearly expressed apply legisla- . courts terms and cannot according plain tive enactment into the terms of a statute which mani- something read in order reach what the court festly is not there It is just thinks would be a result. ... axiomatic that accomplish itself statute the court cannot rewrite a particular legislature.” result. That is the function internal omitted; quotation omitted.]); marks [Citation Statutes, Commission to Revise the Criminal Penal Ann. Comments, (West Code Conn. Gen. Stat. 53a-4 § “free comment, p. (court not to fashion addi- 2007), tional in Penal substantive offenses” included and, the bom alive rule Code). Accordingly, adopting in effect, statutory “person,” definition of amending jurisdiction. the court exceeds its *147 Second, stripped alive of its relevance rule, bom evidentiary tool, as an incoherent thus logically a significant incongruity introduces into our criminal interpreted by majority, law. As the mle contains the inherent contradiction that a viable fetus that is fatally injured subsequently but bom alive is considered person capital under our murder and felony statutes but is person not considered a if it is not bom alive. Thus, fatally injured viable fetus that is may in útero may person or not be a purposes for an prosecuting accused capital felony for murder or on the depending entirely random fact of its status at the death, time of its may depend which on such unforeseen factors as how injured soon the mother receives medical attention, how quickly the medical staff is perform able to delivery, accuracy and the of the observations and tests delivery administered team to determine if the baby is bom alive. This makes no sense whatsoever. Moreover, majority’s focus on the status of the fetus at the time completely of its death is at odds with the underlying rationale of the bom alive rule, which con- sidered whether the fetus only was alive at birth establish its condition in útero at the time of the fatal injury. majority thus temporal severs the connec- tion between the criminal conduct and the status of the victim injury when the fatal was inflicted and allows pure happenstance to determine perpetrator whether a may prosecuted be subjected murder and penalty. death
This, in turn,
process
raises serious due
concerns
fair
regarding
right to
notice because whether crimi-
liability
nal
will attach for
any
the death of a
fetus
particular case will not be
perpetrator
evident to the
at the time the crime is committed. See State v. Aiwohi,
In summary, because the developed bom alive rule as a rule causation and is no longer necessary due *148 a deter- permit now in medical science that advances fetus, made the health of regarding to be mination evidentiary perpetuation. its justification no there is have the effect adoption the rule will Accordingly, of under our Penal “person” definition of amending the of injured but subse- fatally a fetus that is Code to include vio- our statutes Amending bom alive. criminal quently well it is powers the of because separation lates has the court, the not the legislature, that established addition, the authority crimes. In to define undisputed process due confusion and threatens engenders mle deprives poten- consistency it logical lacks because consequences fair as to the warning defendants of tial particular case actions. The defendant in this of their majori- notice of the deprived will be fair because also retroactively. view, my In apply the rule ty’s decision mle’s militate the strongly against reasons these adoption.
II
alive
the bom
majority nonetheless embraces
The
fatally
that,
as
fetus that is
concluding
long
rale,
can
subsequently
alive,
perpetrator
bom
injured is
person. Recognizing
of a
charged with
murder
be
major-
appears
however,
be
problematic,
that this
not
statute does
states that Connecticut’s murder
ity
person
the fetus be a
at the time
require that
person
only
but
that it
before
criminal conduct
become
interpretation
bom
This
being
dies
alive.
it
only
conflict
murder statute is
direct
that
fetus was
original purpose
establishing
rale’s
but
injury
inflicted,
requires
when
fatal
alive
53a-54a.
major rewriting
General Statutes §
Penal
nothing
claims
there
in our
majority
is
application of the
(a)
or
suggesting
§
Code
53a-54a
tempo-
of a
requirement
bom alive rale
barred
conduct
nexus between the defendant’s criminal
ral
*149
and the
as a
that
person,
victim’s status
and
it is unaware
any
authority
of
requires
other
one. I find this
reasoning unpersuasive because an examination of the
language
relationship
of the murder statute,
its
to other
statutes,
the
on
the majority
authorities
which
relies
and
unequivocally
other authorities
demonstrate other-
v. Gibbs,
See wise.9
254 Conn.
601-606, 758
A.2d 327
principles
well settled
of stat-
(2000) (applying
utory
if
interpretation
temporal
to determine
nexus
between multiple
prerequisite
murders
is absolute
to
proving
place
that murders
took
in course of single
transaction
purposes
for
of General Statutes
to
[Rev.
In
four
[8]).
addition,
§ 53a-54b
all
cases from
1991]
jurisdictions
other
cited
majority10
the
for the princi-
ple that no
nexus
temporal
required
is
involved statutes
that, unlike our murder statute, contained no element
of intent
been superseded
and have
fetal homicide
statutes, which eliminated the bom alive rule and effec-
tively repudiated
legal
adoption
the
for its
rationale
jurisdictions.
those
9
principles
govern statutory
“The
construction are well established.
statute,
construing
objective
When
a
fundamental
is to
[o]ur
ascertain and
give
apparent
legislature.
words,
effect to the
intent
...
In other
determine,
manner,
meaning
statutory
we
seek to
in reasoned
of
the
the
language
applied
case, including
question
to
facts of
of
[the]
actually
apply.
language
seeking
whether the
does
...
In
to determine that
meaning,
l-2z
§
General Statutes
directs us
consider
first to
the text of the
relationship
If,
examining
statute itself
to
and its
other statutes.
after
such
relationship, meaning
considering
plain
text and
of such
such
text is
yield
unambiguous
results,
absurd
does
or unworkable
extratextual
meaning
evidence of
the statute shall not be
. . .
considered.
When
plain
unambiguous,
interpretive
guidance
statute is not
we also look
legislative history
surrounding
enactment,
and circumstances
its
legislative policy
designed
implement,
relationship
it was
and to its
existing legislation
principles governing
general
and common law
the same
subject
quotation
(Internal
omitted.)
Friezo,
matter . . . .”
marks
Friezo v.
166,181-82,
General Statutes with intent when, “A of murder part: person guilty he causes the person, of another the death to cause . . .” There . person person or of a third death of such expression temporal nexus be no can clearer crime and necessary to commit the the intent between language. crime than this committing act of term “when” mandates that the defendant use person death of a the intent to cause the must have that is the contemporaneously with, act prior to, or *150 cause of death. person
The “of such statute’s reference death the unin- person” of a further that suggests or third victim, must be victim, tended as well as the intended injury because the person a when the fatal is inflicted time of the person” term “such relates back to the person” criminal act is linked the term “third that, by previously the word “or.” This court has stated synony- of the ‘or’is ‘the “[a]mong the definitions word of two mous, equivalent, or substitutive character . . .’ phrases words or . Webster’s Third New Interna- Dictionary.” Seymours. Seymour, 107, tional 262 Conn. very A.2d It clear that (2002). 809 1114 is thus intended unintended of the defendant’s the victims occupy equivalent criminal must an status as conduct injury Indeed, at the time the is inflicted. if the persons injury victim a is is person inflicted, is not when it understand, logical without engaging hard acrobatics, how the can linguistic defendant’s conduct subsequent Furthermore, cause the victim’s death. majority cites no other statute in our Penal Code that requirement temporal lacks the of a nexus between the question criminal conduct in and the status of victim person. Accordingly, language the statute clearly found guilty instructs that defendant cannot be and unintended victims of murder unless intended persons injuries are when are inflicted.
The majority’s attempt parse statutory lan- word, guage turning dictionary definition of the in support “when” of its temporal assertion that no is required nexus is Webster’s unavailing. Third New Dictionary hitemationai part defines “when” in relevant as “at or that,” the time which during unquestionably temporal establishes that a nexus must exist because the link created the element of between intent and the criminal act use of necessarily the word “when” requires person that the victim be a at the time the act committed, being it be self-evident there can no to kill if person intent the law does recognize person. the victim is a majority also relies on four cases other from
jurisdictions. These include
v. State,
Cuellar
957 S.W.2d
(Tex. App. 1997),
in which the court stated that
necessary
is not
that all of the elements of a crimi-
“[i]t
immediately
nal
be
offense
satisfied at the
time
Cotton,
and State conduct”; id., 139;
defendant’s
P.3d
918 (App. 2000), State v. Ham-
588-89,
Ariz.
*151
mett, 192
App. 224, 225,
Ga.
contemporaneously with the act that causes the victim’s In death. other words, the intent to cause the victim’s death must exist in the mind of the perpetrator at the moment the fatal injury is inflicted, which cannot occur when the victim is a fetus because a fetus is not a person under Connecticut law. Indeed, I can think of no case which any this or other court has determined specific kill person intent to can be found to exist the act completed. is The language of the after statutes the cases on which majority relies thus does not support the conclusion that a temporal nexus must exist between the criminal conduct and the status of the victims as persons, as the language the murder present statute in the case does, because the element of intent is lacking there is no requirement other of a contemporaneous relationship among elements of each of the crimes enumerated in those statutes.
Furthermore, all four jurisdictions have since enacted fetal homicide or feticide statutes and thus repudi have ated 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 person as a at the time of the fatal injury.12 See Ariz. Rev. Stat. Ann. 13-1102, 13-1103, 13-1104 §§ and 13-1105 Sup. (Cum. Ga. 2008); Code Ann. 16-5-80 (2007); Ky. § Rev. Stat. Ann. 507A.010 (c) §§ and 507A.020 through 507A.050 (LexisNexis Tex. 2008); Penal Code Ann. 1.07 (49) (Vernon § Cum. Sup. 2009).
The majority also declares that it “perfectly clear” temporal that no required nexus is because New York’s “homicide statutes . . . materially are identical to our homicide statutes”; footnote 42 of the majority opinion; and a New York appellate court applied the bom alive 12 majority substantially also relies on the outmoded rationale of Cotton, supra, part opinion, 197 Ariz. IV of its in which it considers process present the due issues raised case.
805 second under New York’s rule in a conviction affirming People Hall, 158 statute.13 See manslaughter degree denied, 76, 879, appeal 2d N.Y.S.2d App. 69, Div. 557 N.Y.S.2d 69 (1990). N.E.2d 76 N.Y.2d part in our Code is modeled Although I Penal disagree. statute Law, Penal the New York after the New York degree reckless pertained at in to second issue Hall stat- and, therefore, like the murder, not manslaughter, Kentucky and Arizona, Georgia, utes at issue in the the New conduct, reckless Texas cases that involved mur- distinguishable is from Connecticut’s York statute of it the element intent der because lacks statute Accordingly, injury the fatal is inflicted. must exist when statute, to our murder “materially it is identical” interpreting this in 53a-54a. § Hall cannot assist court any author- asserts that it is unaware majority The temporal nexus is ity support of the view that a conduct and the victim’s required between the criminal when person. surprising I assertion status as a find this why be found. reason authority there is so much majority of states have abandoned overwhelming adopted laws, fetal homicide the bom alive rule and expressly have enacted laws why two other states who has “person” of a one limiting definition act; been bom and is alive at the time criminal (“ ‘[p]erson,’ (2) (2009) § see Colo. Rev. Stat. 18-3-101 means homicide, to the victim of a when referring had at the being who been bom and alive human Or. Stat. 163.005 (3) § time of the homicidal Rev. act”); who has been person means (2009) (“ being’ ‘[h]uman is act”); bom was alive at the time the criminal temporal connection they wished to restore and the status of the between criminal conduct provides part: person guilty manslaughter “A That statute relevant degree when: the second recklessly person . . “1. of another . N.Y. Penal He causes death 2009). (McKinney Law § 125.15 *154 person necessarily victim as a that is broken when the bom alive rule longer no functions as a of causa- rule Indeed, Supreme tion. the Court of Hawaii State Aiwohi, supra, Haw. after considering benefits and of the flaws bom alive rule applied as prosecution parties of mothers and third who inflict injuries fetus, expressly fatal on a that concluded cogent more rule is that “the defendant’s conduct must at a occur time when the victim is within the class contemplated by legislature.” Id., majority’s 126. The authority assertion as to the lack of other regarding requirement temporal of a is, therefore, nexus with- out foundation.14 majority by
The claims that the enactment other of fetal states homicide statutes that defini- amend the “person” tion to include an unborn child or fetus purview “does exclude from its the infliction of injuries on a viable fetus that is bom alive and that 14 majority Aiwohi, describing only The criticizes it as the case cited in opinion proposition temporal required this for the that a nexus is between majority the criminal conduct and the victim’s status. See footnote 67 of the opinion. majority rely Hammett, supra, The is mistaken. I also on App. 225, 192 Ga. in which the court that determined the vehicular homicide required language nexus, temporal and, at issue statute contained no that therefore, subject prosecution. the defendant in that case footnote See opinion. require Oregon 11 of this I also cite statutes from Colorado and that temporal (2) (2009); § nexus. See Colo. Rev. Stat. 18-3-101 Or. Rev. Stat. 163.005(3) (2009). principal whythere contemporary § The reason are so few legislatures majority cases that discuss the issue because the in the statutes, making our states sister have enacted fetal homicide thus further judicial construction of relevant murder statutes under bom alive unnecessary. opinion. rule See footnote 15 of this To the extent that the overwhelming majority jurisdictions Aiwohi court in noted that “an of the prosecution party perpetrated confronted with the of a third for conduct against pregnant mother, causing subsequently child, the death of the bom uphold parties”; Aiwohi, supra, the convictions of the third State v. 123; every Haw. one of the cases that the court Aiwohi were cited from jurisdictions rejected by adopting that have the bom rule alive a fetal homi statute, manslaughter cide or involved a or reckless that homicide statute require proof intent, did not unlike murder statute in this case. Accordingly, majority’s unpersuasive. comments are injuries.” from subsequently (Emphasis dies those opinion. The majority Footnote 67 original.) statutes thus reasons that homicide majority “[fetal] broaden the class protected of victims thereunder bears no rele- class, an innovation that redefining our murder statute con- vance to the issue whether requirement temporal kind of tains the [this says it does.” opinion] concurring dissenting majority that, Id. concludes added.) then (Emphasis bom now is viewed those “because alive rule] [the underin- unnecessarily states have abolished it] [that *155 of victims that it elusive respect category to the the reject it make no sense to mle protects ... would rule, namely, . . . it with a broader without replacing in of a fetus.” killing (Emphasis one that includes alive I insofar as the bom mle agree that, original.) other states, in previously has been recognized adoption in states con- of fetal homicide statutes those repudiation, of the mle. Such abandonment, stitutes a or only that causes the statutes not criminalize conduct fetus, regardless alive, death of whether it is bom of but, extent mle has lost its meaning that they temporal as a also causation, mle of restore connection between the element of intent and the status See, fetus at the time of the criminal act.15 e.g., 15 majority misrepresents my (1) The views when it that I claims “concede” “repudiated” jurisdictions that the bom alive rule has been other as unnecessarily killing narrow or restrictive because it does not extend to the útero, my purported (2) of a that dies in that the rule fetus belief also repudiated in should be Connecticut as too narrow “nonsensical” because requires assumption legislature it that an intended to create an irrational statutory felony kill scheme under which it would be a A class fetus that dies no kill a alive in útero and crime at all to fetus that is bom subsequently injuries dies from sustained in Footnote 58 of útero. majority opinion. majority completely my The misunderstands discussion matter, and, consequently, opinion, majority, of this it is the this up proverbial opposition. “sets straw man” to attack the Id. stated, previously jurisdictions recognized As I believe that have subsequently repudiated abandoned or the bom in favor of alive rule fetal merely expand have done homicide statutes so not the class victims injured útero, temporal but to restore the between the connection element
People v.
Ford,
App.
Ill.
354, 367,
3d
581 N.E.2d
1189 (1991) (expressly acknowledging legislature’s
rejection of bom alive rule in
acts directed
criminalizing
against
appeal
unborn child),
denied,
Ill.
2d
alive rule is “well established in the common law of
this state . . . .” This claim is
major
without merit. The
ity ignores
that,
the fact
if
even
the bom alive rule had
been accepted
part
of the common law of this state
prior to
I
1969, which submit
not, “[a\doplion
it had
abrogated our common
[P]enal [C]ode [in 1969]17
law crimes.” (Emphasis
added.)
Ross,
Conn. 183, 197,
law,
those
and
action,
security
and
relating
government
authority
their
persons
property,
which derive
solely
antiq-
from
and customs of immemorial
usages
uity, or from
and decrees of the courts
judgments
such
recognizing, affirming,
enforcing
usages
.
Dictionary (6th
customs .
. .” Black’s Law
Ed. 1990).
that,
This means
in order
demonstrate
the bom
*157
alive rale is “well established in the common law of
state,”
this
must be evidence that the rule was a
there
colony
known
custom the
or
usage
well
or
in
the state
courts
Connecticut,
reviewing
or
have issued
over
past
and decrees
the rale
judgments
enforcing
years.
majority
Even
giving
the benefit of the
doubt, I submit that no such evidence exists.
majority
relies on a single treatise, written in 1796
by a former Chief Justice of the
Supreme
Connecticut
Court, Zephaniah Swift,18
explains
the bom alive
rule
the context of the common-law definition of
murder, and on three trial
decisions,
court
a single
Appellate
decision,
Court
the Model Penal Code and the
common-law principles that govern criminal matters in
this state. Swift, however, authored the treatise several
years before he became a
judge
Superior
Court
nearly
twenty years before he became Chief
Justice of this court in 1814. See 2 Z. Swift, A Digest
of the Laws of the State of Connecticut
memoir
(1823),
of the author. Swift’s
represent
treatise thus does not
his understanding of the decisional
law
rendered
Connecticut courts
his time
during
on the bench. In
addition, others have observed that Swift’s treatise “not
only covered Connecticut law but encompassed the law
”
Valeriano
‘generally.’
v. Bronson,
supra,
Judges,” 19 Conn. 181,192 B.J. (1945). Notwithstanding this limitation, the revised version of Swift’s treatise, published which was in 1823 before advanced medical technology permitted a determination to be made as to whether fetus was alive in útero, explains that the why reason killing of fetus that dies útero is not considered murder is because “the circumstance [s] of its death cannot be ascertained with sufficient preci- sion,” not because the satisfy fetus does not the defini- “person.”19 tion of a 2 Z. Swift, supra, p. 267. Swift, System 2 Z. (1796). See A of the Laws of the State of Connecticut
19The fact that this court sometimes has relied on Swift’s treatise in other consulted, explains contexts irrelevant. Even if the treatise is it that the purpose of the bom alive rule was to determine whether the fetus was alive act, not, majority insists, impose at the time of the criminal as the penalty merely killing for the of a fetus because it was bom alive and person Swift, supra, p. thus became a before it died. See 2 Z. 267.
811
that
court
three trial
decisions
respect
With
raised
mle, the issues
recognize the bom alive
allegedly
published
which was
decisions, one of
in two of those
availability
medical tech
of advanced
in 1955before the
but, rather,
conduct
not involve criminal
nology, did
cause of
whether a
to determine
required the court
negligent wrongdoer
against
be
brought
action could
fetus and a
in útero to
viable
injuries
inflicted
Mullin,
Sup.
v.
34 Conn.
nonviable20 fetus. See Simon
Tursi
fetus);
(nonviable
Anonymous if little, any, precedential has value in present context because the issue before the trial court was whether an unborn rather than a fetus, fetus that is fatally injured subsequently but is bom alive, is a “human under Connecticut’s murder being” statute, any and the specifically court stated that redefinition “person” the term must be to the legislature left body alone that authority because has the to define Anonymous crimes. State (1986-1), supra, Conn. jurisdictions nine cited Sup. Moreover, eight 505. killing of an not consider the by the court did fetal homi- since enacted fetus a homicide have unborn and discarded the bom alive or feticide statutes cide that “the codes from as the court stated mle.21Insofar limit the words our law was drawn which Connecticut alive”; id., who been to those have bom being’ ‘human nothing respect 501; suggests the statement injury of a fatal on fetus whether the infliction murder; rather, subsequently bom alive constitutes is who is bom simply being means that a human one it absolutely from the dis- Indeed, is alive. it is clear *160 quoted and follows this precedes language that cussion an was to the referring only killing the court that did not because “Connecticut’s legislature unborn fetus viable to a as an unborn but being’ intend define ‘human in Although the court also stated dictum fetus.” Id. is not that, mle, the bom alive an unborn fetus under id., its reference person; 503; passing see considered incorrectly mle, the bom alive mle describes of an reject not the idea that the killer unborn which did merely prosecuted but fetus could be for murder the fetus had bom alive required evidence that been was prove it was alive when the criminal act that Lastly, trial conclusion that the committed. court’s unborn fetus is not a homicide did killing an mle require adopt the court to the bom alive because issue in that was whether an was case unborn fetus Id., being a human under Connecticut’s murder statute. the trial court’s in Thus, reasoning Anonymous 499. hardly majority’s that bom supports the assertion mle or “is adopted alive that case mle state,” well established the common law of this cit- majority’s attempt otherwise also suggest 21 Anonymous California, Florida, Illinois, The court in cited cases from Kentucky, Louisiana, Jersey, Michigan, Virginia. New Utah West See Jersey Anonymous (1986-1), supra, Sup. State v. 40 Conn. 503. All but New or have enacted fetal homicide feticide statutes. to In re Valerie D.,
ing App. 586, 591, Conn. 595 A.2d on other 223 Conn. (1991), grounds, rev’d 492, A.2d 748 which involved the termination of (1992), parental quoted from Anon- rights language certain ymous, is at best.22 misguided, majority also seeks for its support view in the Code, internally Model Penal but its is reasoning incon- sistent and misunderstanding reflects the code. On majority the one hand, concedes that “it is not entirely clear” whether the Model Penal Code intended apply definition of “human to a being” fetus that injuries is bom later alive but dies from inflicted útero. of majority opinion. Footnote 35 the The majority likely farther concedes that “it more [is] commentary to the Penal Model Code was [related] clarify intended to that the fetus in killing útero does not homicide, constitute crime of and that [the Model Penal ‘human definition being’] does Code] [of not expressly specific address the more issue of whether it a homicide infant, is when an having been injured in is útero, bom alive and dies of then his or injuries.” majority her Id. On the other hand, the asserts that, statutory patterned our scheme after “[b]ecause *161 the Code,” presume Model Penal we must that our legis- lature “expressly repudiated]” would have the bom apply.23 alive rule if it had not intended it Id. The 22 majority my why explain The fault with finds failure to this state would recognized specula not have the bom alive rule under law. the common Such my part point. tion on the is beside The issue this court before never has statutes, and, consequently, been raised under homicide our the bom alive judicially recognized rejected rule never has been or Connecticut. Conse quently, only question adopt the relevant court whether this should the present rule in the case. 23 majority following reaches this conclusion on basis of the the commentary (1) in the Model Penal Code: “Section 210.0 defines the term person being’ ‘human a to mean ‘who has bom and is been alive.’ The language limiting effect of this is to continue the common-law rule criminal killing of homicide to the one who has been alive. bom Several modem making explicit. statutes follow the Code in Model this limitation Others point, express they contrary, are silent on but absent statement may expected carry approach. too be forward the common-law authority the Model Penal Code as majority thus cites after bom alive mle Connecticut adopting code was the notion that explicitly rejecting the term incorporate defining the mle intended to being.” “human of “human if Model Penal Code’s definition
Even adoption of implicit as an could be constmed being” cannot, the Con- mle, which I believe it the bom alive definition declined to embrace that legislature necticut in the New York Penal “person” or the definition of in 1969. adopted when it this state’s Penal Code Law “person” for (1) (defining See General Statutes 53a-3 § where purposes being, and, of Penal Code as “a human limited appropriate, public private corporation, a or a liability unincorporated association, an company, partnership, a or a instru- government governmental portions even of our mentality”). Accordingly, though may patterned Penal Code be after the Model Penal may Code have been familiar with legislature commentary, legislature’s the Model Penal Code reject “person” decision to the definitions of “human in the New Law being” York Penal and Model Penal Code, respectively, necessarily constitutes rejection any implications affirmative regarding purportedly bom alive mle therefrom. arising significance being’ “The this ‘human is that it excludes definition of killing criminal homicide the This exclusion is warranted from fetus. entanglement in order to avoid of abortion in the law of . . . homicide. “Thus, defining being’ ‘human to exclude a fetus serves the valuable maintaining criminological function of abortion as an area of distinct concern (Emphasis added.) not covered the law of homicide.” Model Penal Code 210.1, (c) (1980). § comment 4 commentary, majority that, On the of this basis concludes because legislature explicit regarding the Connecticut has made no statement *162 rule, may presumed adopted bom alive it be that the mle has been in this disagree opinion, including I state. for all of the reasons discussed in this legislature employ being” that the did not the definition of “human on which portion commentary and, additionally, this of the Model Penal Code is based commentary killing fetus, that the focus of the is on the of a not on the killing fatally injured subsequently of a fetus that is but bom alive. 816 alive mle majority next claims that bom
The
“[t]he
knows
in
law” and that it
deep
has
roots
our common
have
why
. . .
the . . . rule would not
of “no reason
just
. . .
as
law of this state
accepted
been
as the
[it]
every
jurisdiction by virtually
other
accepted
rule is
I
that the bom alive
agree
had considered it.”
and that some
England
from the common law
derived
past.
accepted
have
the rule
of our sister states
Cotton,
584, 589,
Ariz.
applicable [emphasis added]). to our social conditions” majority responds to this clear and unambiguous incorporated courts statement of how Connecticut have *164 legal the common law of into this state’s frame- England misappre- I by work that have “fundamental declaring in law hension of the manner which the common applied. identified and Even if no court of this state previously had the existence of the bom recognized required we would be to determine its exis- rule, alive England, tence on the basis of the case law of jurisdictions, of of other and the works decisions courts majority of common-law scholars.” Footnote 39 of the majority appears The thus to subscribe to the opinion. all of the common law has been assim- English view that law of this state, regardless ilated into the common statutorily byor whether it has been either recognized emphatically the courts. I disagree. precedent, majority of our disregard
In clear
Dacey
analysis
of our
in
portions
ignores significant
foreign jurisdictions,
relies on the case law of several
Maryland, Minnesota and North
including Arkansas,
analysis.
Dakota to
its common-law
See id. To
guide
acknowledges Dacey,
majority
it
the extent
that the
v. Walker,
from Graham
takes a small
78 Conn.
passage
quoted Dacey,
In
we
that the common-law
determined
year
day
adopted
and a
rale had
been
in this
never
state and
even if it
it had been
that,
had,
abrogated
opinion.
See footnote 37 of this
comprehensive
enactment of the
Penal Code in 1969.
95-96.
on
Id.,
Relying
reasoning similar to that which
opinion,
I have articulated in this
we stated that (1)
prior
references to the rule in two
passing
cases were
merely
“part
larger [passage]
that addressed the
dispositive
cases],”
issue in
which had nothing
[those
year
day rule;
to do with the
and a
id., 91; (2) “discussion
judicial opinion
goes beyond
in a
the facts involved
in the issues is mere dictum and does not have the force
other
precedent”; id.; (3) no
Connecticut decision had
expressly “adopted
applied”
year
day
and a
if
rule; id.; (4) even
the rule had existed in the common
prior
“adoption
law of Connecticut
to 1969,
of the com-
prehensive
in 1969
the com-
abrogated
[P]enal [C]ode
mon law and set out substantive crimes and defenses
in great detail,” and, there
been no mention of
having
year
day
Code,
rule
the Penal
it had not
adopted;
id., 92;
been
(5)
language
savings
clause in General Statutes
53a-426and related com-
§
mentary by the commission to
revise
criminal stat-
utes indicated that the
clause was intended
savings
apply only
chapter
to those statutes in the
in which
appears, namely, chapter
statutory
53a-4
951 on
§
con-
*166
principles
struction and
of criminal liability, and not to
chapter 952; id.,
the homicide statutes in
93-94;
the
(6)
year
day
and a
rule would be “inconsistent” with the
provides:
provisions
chapter
§
General Statutes
53a-4
“The
this
shall
of
any
precluding
recognizing
principles
not be construed as
court from
other
liability
provisions.”
of criminal
or other defenses not inconsistent with such
(Emphasis added.)
explains:
pur-
The commission’s comment further
“The
pose
saving
provisions
of this
clause
tois make clear that the
sections 53a-
53a-23,
principles
liability
defenses,
5 to
which define the
of criminal
are
necessarily
precluded by
not
exclusive. A court
not
is
sections 53a-5 to 53a-
recognizing
principles
23 from
other such
and defenses not inconsistent
mean, however,
therewith. This does not
that the court is
free
fashion
offenses,
precludes, by repealing
additional
substantive
the
sec-
[c]ode
54-117,
(Emphasis added.)
tion
the notion
common law crimes.”
Com-
Statutes,
Comments,
mission to Revise the Criminal
Penal Code
Conn. Gen.
(West
comment, p.
2007),
§
Stat. Ann. 53a-4
324.
“prevents conviction
because the rule
homicide statutes
not
the victim does
die within
for a homicide [when]
day
causing
of the defendant’s conduct
year
and a
the
overhaul of the
and,
sweeping
death,”
“given
the
it
in
wrought
criminal
the
law
[C]ode
[P]enal
in bar not be
wholly
that such a defense
illogical
is
specifically included
in the code or . .
.
chapter
[951]
. . .
[p]articularly
‘defenses’ . . .
which
rife with
involved”; id.,
the
94; (7)
homicide is
where
crime of
year
day
developed
rule
for the
and a
“original reason
hardly
when medical science was
years ago
hundreds of
1980s],”
in the
and that reason
as advanced as it [was
it
possible
diagnose
because
is now
longer
no
exists
cause of the victim’s
precision
with far
greater
“the
behind the rule is
death,
therefore,
policy
and,
century”; (internal quota-
in
twentieth
dubious ...
id.,
the rule was “in
94-95; (8)
tion
omitted)
marks
States” and numerous
decline
United
throughout
id., 95;
jurisdictions already
it;
(9)
had abolished
of the Laws of
State of
although
Digest
Swift’s
year
day
specifically
Connecticut
refers to the
and a
part
rule was
Con-
rule, Swift did not state that the
opposed
English
necticut’s common law as
com-
mon law in
must be remembered that
general,
“[i]t
only
Swift’s
covered Connecticut
law but
Digest
”
encompassed
‘generally,’
and,
the law
“[u]nder
circumstances, any reliance on Swift would
been
have
position.”27 Id.,
a weak
91-92 n.10.
reasons,
disagree
majority’s
For several
I
with the
assertion that this
court,
State,
“expressly
(1994),
230 Conn.
mate cause Connecticut’s murder under reliance on Swift’s *167 Digest position.” Bronson, supra, was “a weak Valeriano v. 91-92 Conn. Second, interpretation contempt n. 10. in the issue Ullmann involved the of a statute, provision State, supra, not a from the Penal Ullmann v. Code. See Thus, 699. the court in Ullmann could not have disavowed our conclusion Valeriano must serve precedent
I
as
in
submit that
whether the bom alive rule is embedded
determining
in the
of this
the
common law
state because
bom alive
rule,
year
day rale,
like the
and a
was
common-law
applied by
rule of
to
English
causation
courts
determine
liability
Accordingly,
in homicide cases.
all of the rea-
rejecting
sons on which this court relied in
the argument
year
day
that the
rule
in
and
existed
Connecticut
apply
equal
with
force to the bom alive mle. These
include
no
expressly
that
Connecticut court
has
(1)
applicability
Digest
interpretation
regarding
in Valeriano
the
of Swift’s
to the
Third, although
of the Penal
in
case.
court in
Code
that
the
Ullmann noted
preface
Digest
that Swift had
in the
stated
the first volume
his
“plan
authorities,
English
his
from the
the
in
select
rules
force
[was]
here,
systematic
own,
view,
to combine them
our
in a
so as to
complete code”; (internal quotation
omitted) id.,
n.7;
exhibit one
marks
why
persuasive
resolving
contempt
the reason
the court found Swift
in
authority
English
issue was
had cited
law as
because Swift
common
for the
early
contempt
century,
in
Connecticut
statute
existence in the
nineteenth
contempt
id.,
which was similar
to the
statute at issue UUmann. See
citing
Swift, supra, pp.
Digest
contrast,
2 Z.
359-60. In
did
Swift’s
not refer
year
day
authority
any
to the
rule or
as
and a
the bom alive rule
for
pertaining
Connecticut statute or court decision
to those rules. In both the
Digest
System
predecessor, “A
and its
of the Laws
the State of Connecti-
cut”;
opinion;
see footnote
this
to the
18 of
Swift’s reference
bom alive
English
rule was
followed
a footnote to the work of
renowned
commentator,
Coke,
English
Sir Edward
in which Coke
described
com-
Furthermore,
Valeriano,
mon-law bom
alive rule.
as the court indicated
judge
significance
legal
a former Connecticut
who studied the
of Swift’s
Digest
biographical
Digest
and wrote a
article about Swift observed that the
generally
applicable
“covered the law
and was almost
to the
as
other states
Undoubtedly
why
Digest
as it was to his own.
this was
reason
[sjtates, mainly
throughout
legal
was used to a
extent
considerable
occasionally
authority
instruction
an
but
cited
the courts.” P.
scholarly
O’Sullivan,supra,
light
B.J. 192. In
Conn.
character of
biographical piece
this
the fact that
no
Swift cited
Connecticut statutes
rule,
pertaining
or cases
bom
I
alive
do not believe that the court in
concluding
misplaced
Valeriano was mistaken
on Swift was
reliance
largely compendium
only
in that
was
context or that Swift
“not
. . .
generally.”
quotation
(Internal
. .
law
Connecticut law but
.
marks
omitted.)
Bronson, supra,
Finally,
Valeriano v.
91-92 n.10.
if
even
it is
presumed
Digest
regarded
authority
that Swift’s
once was
as common-law
Connecticut,
authority clearly
for the existence of the bom alive rule in
such
legislature
extinguished
adopted
Penal
when
Code in 1969.
*168
that
injuries
to a fetus
that
infliction
concluded
subsequently
from those
but
dies
is bom alive
that the
to the extent
murder, (2)
constitutes
injuries
Appellate Court referred
Court and the
Superior
D., respectively,
re Valerie
Anonymous
and In
in
rale
as
passing
part
larger
in
only
mentioned
it was
in
none
cases,
issues
those
dispositive
of the
discussion
of fatal
to do with
infliction
anything
which had
subsequently
alive, and,
on a fetus that is
bom
injuries
prece-
no
merely
were
dicta with
thus, those references
in
support
no
for the rale
value, (3) there is
dential
never
that the
Swift
Digest
suggested
Swift’s
because
if it is
in
even
adopted
Connecticut, (4)
rale had been
that the
alive rule existed in our common
assumed
bom
rale,
Code
abrogated
enactment of our Penal
law,
which
preserved by
clause,
it is not
the savings
and
Statutes,
apply
chapter
General
does
felony
capital
appear,
which the
statutes
murder
is
with our
statutes
the rale
inconsistent
homicide
(5)
rejected any
specifically
because the
modifi-
legislature
fetus
“person”
cation of the term
to include a viable
rejected
proposed
bill;
it
fetal homicide
see
when
advanced
(2002);
(6)
Raised House Bill No. 5747
has rendered
reason
original
medical
technology
year
in the
rale,
for the bom alive
case of the
day rale,
obsolete.
claims
majority
nonetheless
that “[c]ourts
consistently
. . .
concluded
jurisdictions
other
have
injuries
who is bom
that the death of an infant
alive from
quota-
in útero
homicide.” (Internal
inflicted
constitutes
might
which
comparison,
tion marks
Such
omitted.)
fifty years
now
forty
ago,
have been
or
compelling
Lamy,
See State supra, passé.
(describ-
N.H. 521
pro-
bom alive rale as “outdated anachronism often
ing
jurisdictions
anomalous
Most other
ducing
results”).
rale
adopted
have
the bom alive
did so at a time
history
nation’s
when the health of the fetus
our
could not be monitored in útero, which is no longer
the case. Although
majority
concedes that “recent
*169
advances in medical
prompted
science have
a number
depart
of state courts to
from the bom alive rule” in
favor of a rule
that a
recognizing
fetus can be the victim
homicide,
of a
it fails to acknowledge that the “recent
trend” to which it refers is more akin to a landslide,
approximately
percent
70
of our sister states now
the bom alive
rejecting
rule
favor of fetal homicide
Indeed, many,
laws.
if not most, of the cases from other
jurisdictions
adopted
that had
the bom alive rule and
majority
on which the
superseded by
relies have been
jurisdictions.28
the fetal homicide laws enacted in those
Cotton, supra,
See,
v.
e.g.,
supra,
(bom
ground legislature’s “reflects the statute)29 vated assault rale” because express acceptance of the [bom alive] have rejected bill30that would defined legislature the Code, the Penal include “person,” purposes of assault aggravated viable and enacted the statute fetus place. logically This is both flawed its conclusion by history. completely unsupported legislative history legislative There no reflection in the is mle, express acceptance of the bom alive legislature’s any history legisla- in the does legislative and nowhere part tor is of the common law of rale suggest wholly is irrelevant what Moreover, this state. it 03-21, Public which as at General Statutes Act is codified amended 53a-59c, person pregnant provides: “(a) guilty A is of of a woman § assault resulting person pregnancy of when such commits assault in termination provided (1) (a) degree in the under subdivision subsection first (1) general of such section 53a-59 of the statutes the victim assault pregnancy pregnant, (2) such assault results in the termination of not in live does result birth. section, “(b) any prosecution it In for an offense under this shall bo an actor, engaged that the at the time actor in the affirmative defense such constituting offense, pregnant. know conduct did not that the victim resulting “(c) pregnant pregnancy Assault of a woman termination felony.” is a class A Hereinafter, (2002). Bill No. all Raised House references to Bill fetal homicide bill are to Raised House No. 5747.
assumptions legislature regarding made the bom nearly alive rule because the statute was enacted five years after the crime in committed, this case was and, any event, the common law is not determined legislative assumptions as to what the common law may be. majority agree, and I states,31 that enactment of legisla-
the fetal homicide bill would have constituted rejection part tive of the bom alive if rule, it had been treating killing law, the common because of a fetus in útero as a homicide without evidence that the plainly fetus was alive at the time of the criminal act requirement conflicts with the rule’s that such evidence provided killing be in order for such a to constitute a legislature’s homicide. The decision to treat the assault pregnant of a woman that results in the termination of pregnancy aggravated her as an assault, however, is synonymous acceptance of the bom alive rule. contrary, consciously legislature To the declined to statutorily address the controversial issue of the status any omitting of the fetus reference to the unborn aggravated by making child in the assault statute and against pregnant the offense a crime woman rather against why legislature than the fetus. The reason *171 approach punish took this was that it wanted to conduct resulting pregnancy in the termination of a without becoming rights in an embroiled abortion debate and granting independent legal recogni- without the fetus granted tion, which would have been under the fetal aggravated homicide bill. In words, other the assault punish perpetrator statute was not intended the against provide pregnant a crime the fetus but to women protections by increasing existing with additional the penalty pregnant for the assault of a woman if the pregnancy. assault results in the termination of her previously discussed, majority conflicting As I the makes assertions respect with to this issue. of pregnant assault Compare (designating P.A. 03-21 her as pregnancy that in termination of woman results (desig- A with Statutes 53a-59a § class General felony) as degree woman in first class pregnant assault of nating be a may appear B distinction felony). Although this difference, to the enactment a it was crucial without point The is that, assault statute. aggravated grant did not the assault statute aggravated because is inconsistent recognition, fetus the statute legal the rale a fetus presumption of the bom alive as is that it was bom person long is there evidence attempt majority’s to treat the Accordingly, alive. “person” expand definition of refusal legislature’s fatally injured fetus as an affirmation of to include a collapse weight rale must under the the bom alive faulty logic. own its abundantly is further “it majority
The declares that fully . . . the considered and legislature clear that the bom alive rale rejected possibility abolishing This viability rale instead.” assertion is adopting implies that respects. First, in at least two it wrong presently alive followed Connecticut bom rale rejected possibility . . . legislature because “the previously I stated, disagree it. As abolishing” objective can be drawn from an such conclusion or legisla- examination of this state’s common law the history of the statute. aggravated Second, tive assault it suggests legislature expressly that the considered the possibility bom when eliminating alive rale it statute, assault in fact aggravated enacted when it did not. only references to the bom alive rale during on the fetal homicide and legislative proceedings D. assault bills were made Clarke For-
aggravated *172 sythe, president of for and Bill Life, Americans United O’Brien, legislative president Right vice of Connecticut Corporation. Forsythe to Life Both and O’Brien “person” in passing remarked that the definition of in expanded the Penal Code should be to include an unborn bom alive fetus because the rule had become outmoded should be abolished Connecticut. See Conn. Joint Committee Standing Hearings, Judiciary, Sess., p. 424, O’Brien; id., pp. Pt. remarks of 663-66, testimony written of Conn. Joint Forsythe; Committee Pt. Standing Hearings, Judiciary, 8, 2002 Sess., pp. 2403-2404, Forsythe. Forsythe remarks of admitted, however, that he was a resident of Illinois explained and twice that he was “not familiar with” or the “aware of intricacies of Connecticut law . . . .” Conn. Standing Judiciary, Joint Committee Hearings, Pt. 8, Sess., pp. 2406, 2407. no member Moreover, Assembly of the committee or to General referred bom rule public alive during hearings legislative or legislature understandably debates on matter. The was question concerned with the much narrower penalize perpetrator whether and how to for causing an unborn any positive the death Furthermore, fetus. of the bom rule would been discussion alive have incon- express sistent the legislature’s unwillingness capital create a new See id., pp. 2429-30, offense. Representative remarks of Michael P. (stating Lawlor capital of “new offense” “real creation was issue” “extremely poten- and that was reluctant” expose he capital tial punishment killing defendants unborn fetus). Accordingly, because record demonstrates discuss, any that the legislature did not or take action be recognizing, could constmed as the bom alive any rule at time cannot during proceedings, it be “fully rejected” said that legislature considered and the bom alive abolishing rule Connecticut.32 32 majority’s legislature rejected possibility assertion that the “abolishing adopting viability bom alive rule and rule instead” because areportonthe aggravated prepared by legislative assault statute the office legislature, making determination, research “indicates that the its express well aware trial court’s reliance on the rule in the bom alive present case, application in State as well as the of the rule court *173 majority conclusion, the opposite
In the reaching liberties as extreme only what be described takes can example, the history. For legislative in the interpreting over- declares, in sometimes unequivocally majority opted preserve to legislature blown that “the language, has decided to rale,” legislature “our the bom alive bom alive “judicial abrogation the rale,” retain unprecedented that both would lead to a result is rale the absurd,” legislature obvious intent of “the [in classify to the assault statute enacting aggravated was] after an infant to die as homicide conduct that causes a injuries inflicted a of that were bom alive as result being bom rale in this case útero,” apply the alive failing “perverse to decriminalize would amount to a scheme” on fetus that is subse- injuries infliction of fatal a the out an quently alive, “carving bom the legislature pre- supra, Sup. 498,” Anonymous (1986-1), As I Conn. is inaccurate. reject possibility viously discussed, legislature abolishing the did not the aggravated the alive when it the homicide and bom rule considered fetal bills, Anonymous. majority apply The assault the court did not the rule in quotes report passage stating aggravated a in the that the assault statute law, person not affect murder Under a “does statutes. Connecticut case baby baby charged cannot be with murder of a unless the is bom alive and period Research, Legislative time.” lives for some Office Research Report 2003-R-0488, Pregnant (June No. “Assault of a Woman and Murder” 30, 2003), http://www.cga.ct.gov/2003/olrdata/jud/rpt/2003-R- available at May 27, quoted passage, however, (last 2010). The incor- 0488.htm visited rectly represents adopted by that the bom alive rule has courts of this been reports agree majority legislative I state. with the that do not constitute legislative agree majority legislative I evidence of intent. also with the necessarily judicial of a inaction does not constitute affirmation decision. majority Accordingly, why I do not understand states that it is reasonable legislature’s “may conclude inaction be understood as valida- law, part especially light tion” that the rule bom alive is Connecticut currently litigated is of the fact that this case continues to be under appeal. Finally, majority’s legislature not assertion that the did take ruling present following Anonymous trial case action and the court’s necessarily legislature’s enact fetal true. refusal to homicide capital bill it have a new offense could well be because would created present case, rejection ruling construed as a of the trial court’s in the issued approximately years earlier, practical creating which had effect of three capital new offense for murder of fetus. exception” the bom alive rule when enacted it aggravated statute, assault and the legislature recog- “an subsequently nized that infant who is bom alive but *174 injuries in already protected dies from útero is sustained by operation virtue of the the bom rule, pursu- of alive ant to which the infant’s is treated a death as homicide.” majority’s Even misleading that, more is the statement consequence a “as of the enactment of aggravated [the statute], authority reject assault this lacks the court the bom alive rule . . . .” (Emphasis added.) To those who have not read the these asser- legislative history, convey tions the impression legislature the expressly injuries recognized that the infliction of fatal subsequently presently on a that is bom is fetus alive murder in considered Connecticut and that the aggra- vated statute enacted to complement assault was the for a providing remedy rule a the death of fetus that appears majority dies útero. The to base its assertions on the limiting the of assault stat- language aggravated ute, testimony pro-life pro-choice the of witnesses during judiciary committee on the fetal hearings aggravated homicide and assault bills and passing Forsythe references bom alive rale O’Brien, pro-life who testified as advocates before the Nothing legislative history, committee. however, expressly, or legislature demonstrates even alive it implicitly, recognized the bom rule when consid- exactly bill. In fact, opposite ered either is tme. With in the respect language aggravated assault limiting application statute its to “the termination of birth”; that does not in a Uve P.A. pregnancy result OS- 21; implies says. more than it language nothing response statute was enacted direct to the sensa- killing pubhc tional of a woman and pregnant the acute penalty concern that foUowed the lack of a regarding Proc., for the death her unborn fetus. See 46 S. Pt. Sess., p. Andrew J. remarks Senator become of, bill out has generally arises (“this McDonald situation it deals with the Jenny’s bill and known as and the pregnant while a woman assaulted where without a her to terminate pregnancy assault causes E. Donald id., p. 1010, live remarks Senator birth”); specific . case . . refers to Williams, (“Jenny’s Jr. law pregnant . was . . young woman [involving] [who] murdered]”). Conse- at time was shot [she [the] at the commit- bills and those who testified quently, the exclusively remedy tee on a hearings focused application of restricting an unborn fetus. In killing of a fetus, legislature to the death of such statute penalty presently that a exists acknowledging is bom alive and subse- for the fetus that killing *175 attention to quently but, rather, directing dies was its the issue at hand and its intention specific expressing not to address circumstances beyond giving those rise ultimately majority’s to enacted. The decla- the statute of the bom alive mle the ration that the existence “only why opted to possible . . . reason legislature protection of assault aggravated include within the [the bom only alive”; those fetuses that are not statute] misses majority opinion; 54 of the thus footnote completely questions majori- raises as to the mark ty’s understanding legislative his- knowledge tory assault bills. aggravated of the fetal homicide and testimony on majority
Insofar as the relies at the conclude that the enactment of legislative hearings to legisla- also represented assault statute aggravated mle, tive affirmation of the bom alive it misunderstands ultimately the stark compromise forged bridge differences expressed by pro-life advo- pro-choice spoke judiciary cates committee. In who before eloquent pro-life argued often advocates language, independent an fetus should be as an recognized unborn entity protection therefore, deserving legal and, passed. See, be Conn. e.g., fetal homicide bill should
Joint Standing Committee Hearings, Judiciary, Pt. Sess., pp. 2425-26,2428, remarks Sister Suzanne Gross, on behalf of the Ministry Pro-Life of the Francis- can Life Center. In equally eloquent pro- language, choice advocates, an fearing erosion of existing abor- tion rights, that an argued unborn fetus should not be granted independent legal status and that restraining orders and other laws then in place to curb domestic violence sufficient, properly were if enforced, to protect pregnant See, women. e.g., id., p. 2309, remarks of Jenni- fer C. Jaff, on behalf of Connecticut Coalition for Choice. Pro-choice advocates thus contended that the real issue at protection stake was the of a woman’s carry right her pregnancy term, and that it was not necessary to enact additional laws that would create penalties new for the killing of an unborn See, fetus. p. e.g., id., 2227, remarks of Jeri Reutenaur, on behalf of the Connecticut Civil Liberties Union; id., p. 2311, remarks of Jaff. Significantly, no witnesses, other than Forsythe and O’Brien, referred to the bom alive rule, presumably because the rule never publicly had been recognized this state and thus was generally unknown.
After considering foregoing arguments, legis- *176 lature was to unwilling choose sides. It thus crafted a in solution which each got some, side all, but not what it in sought gamer public order to broad support. See, 46 S. e.g., Proc., Pt. Sess., p. 1010, 2003 remarks of Senator Williams (“[T]here’s broad support for this bill. The National Organization of Women and the Con- necticut joined by Coalition Choice are the Confer- [for] ence Catholic in a Clergy unique alliance in support of this id., p. legislation.”); 1013, remarks of Senator Catherine W. Cook (praising “extraordinary work” of former state Representative Nystrom Peter in preceding year “in very that crafting compromise unusual between pro-life the pro-abortion folks and the folks”); id., p. Harp (“this Senator Toni Nathaniel 1014, remarks of way in of the contradic- reconciling bill some long goes around in the minds of those may appear that tions Proc., Pt. 46 H.R. right choose”); women’s to Representative Jefferson B. remarks of Sess., p. 1982, compromise”). that bill was “reasonable (stating Davis advocates, a was cre- pro-life To new offense placate increased the assault statute that aggravated ated in by woman pregnant the for the assault of penalty felony A the from a class B to a class elevating crime her To pregnancy. if results in the termination of it advocates, declined mollify pro-choice legislature the unborn against to make the new offense a crime legal the fetus granted this would have fetus because independent Thus, of the mother. the essence of rights penalty was for an compromise to increase the that in termina- assault on a woman results pregnant without her the fetus as pregnancy recognizing tion of entity. accomplished The separate legislature legal by omitting any balance reference this delicate statute, emphasizing in the using language fetus it, “An naming the crime is the woman and against of a Woman.”33 Concerning Pregnant Act Assault legislative history, majority’s light “there In of this claim that is only why possible legislature opted to within the one reason include protection only aggravated those that are assault fetuses [the statute] operates protect alive, namely, . not the bom alive rule . . which bom injuries but then an infant who suffers in útero who is born alive and dies corresponding posit] any injuries,” and its that I from those claim “[do why purview other reason excludes from its statute] conceivable an [the injuries subsequently is but from infant who bom alive who dies sustained misrepresent útero,” my opinion. the record as well Footnote as majority opinion. majority goes “unwilling also on assert it is response legislature have to assume” that the could enacted the statute namely, specific question, killing útero, event in of a fetus in rule, considering ignoring the bom alive thus the fact that the rule without only inapplicable enacted in that context and that statute not very Jenny’s response specific crime, ultimately to a but became known disagree majority’s Id. Law in honor of the victim. I also with the statement *177 legislature not if it that the would have enacted the statute had not intended implicitly completely recognize to the rule. bom alive Such comments are majority appreciate fact, consistently
The fails to this describing aggravated assault statute as imposing penalty a for the a fetus. If been killing this had intention, however, the act would legislature’s never As of the passed. have the demise fetal homicide bill demonstrates, was to legislature unwilling recog- independent light oppo- nize fetal of the rights strong pro-choice rule, sition of advocates. The bom alive under which the of a fetus is as mur- killing considered long prove der as as there is the fetus evidence that when committed, was alive the criminal act was exactly employs the same solution as the homicide fetal bill, namely, granting independent legal the fetus rights by imposing punishment expressly a its death, related to step legislature clearly a the Connecticut was to take.34 unwilling previously stated, judiciary
As no member of the com- engaged rule, mittee a discussion the bom alive Forsythe even when and O’Brien the rule mentioned hearings. the committee In the during exchange majority Repre- which the refers O’Brien involving Farr, sentative Farr did not affirm the existence of the merely clarify rule but asked O’Brien his comments history, unsupported legislative ques- demonstrates, which without tion, legislature attempting compromise to achieve a between pro-choice pro-life unique advocates in context of that situation penalize concerned a was not with the issue whether to defendant injuries subsequently inflicting fatal on a that is fetus bom alive. 34 majority reasons that the bom alive rule does have the same legislature rejected because, effect as fetal homicide bill that the under bill, fetal homicide fetus would have been accorded the treatment same person, whereas, rule, protection as a under the alive bom “the only and, is when the homicide statutes extended fetus is bom alive conse majority quently, longer opinion. is no fetus but a child.” Footnote 62 of the analysis, however, noted, logically because, previously This incoherent requires temporal it severance of the connection between the criminal act victim, and the status and transforms the rule into substantive crime, contemplated element of the neither of which was under the tradi tional alive rule. bom
835 penalties bom alive rule from the distinguishing fetus of a viable or nonviable imposed for death actually from going bill ... whether “the asking case of separate but treat it as conception, it doesn’t you're saying.'' (Emphasis added.) murder is that what Judiciary, Hearings, Committee Standing Conn. Joint responded: “That’s 426. O’Brien Sess., p. Pt. 2003 her preg- woman and simply talking about the right. It’s thus con- woman.” Id. The discussion nancy, pregnant statute, to the assault relating aggravated details cerned alive rule.35 not the bom 35 and, view, misrepresents, my majority grossly the remarks inflates in The hearing judiciary hearings. by Forsythe committee and O’Brien at approximately pages generated of transcribed bill on the fetal homicide Standing thirty testimony by approximately Com See Conn. Joint witnesses. 2308-18, 2331-33, Sess., pp. 2224-28, Hearings, Judiciary, Pt. mittee witnesses, Forsythe 2402-39, Only 2338-62, 2382-89, 2335-36, two 2448-65. Forsythe discussing O’Brien, bill. bom alive rule in mentioned the presentation professional that articles his initial he had authored testified in homicide; p. id., involving addressing bom rule and fetal issues alive killing remedy” 2402; in Connecticut for the of a that the “lack of [a] law was and obsolete common bom fetus in útero “due to outdated 2403; id., p. Id., p. (referring outdated bom alive see also to “the rule.” Forsythe location, a rule”). “a rale of rale of alive described rule as 2403;and, knowledge, evidence”; id., p. light as a medical rule modem Id., p. Forsythe indicated to “absurd results.” 2404. also leads by adopting alive fetal several other states had abolished the bom rale id., pp. 2412, repre Together, 2414. See these few remarks homicide laws. testimony pages sented than one out of fifteen of his transcribed less nothing personal opinion alive than his that the bom rule constituted more part Significantly, this members of the common law of state. committee response Forsythe’s questions asked and made no comments in refer no rule, alive which in his of the fetal ences to the bom were buried discussion questions Forsythe Those few that were directed concerned homicide bill. jurisdictions, purport knowledge of fetal laws in which his homicide other person, of a death of fetus the same manner the death treat the among
prosecutions jurisdictions, a fetus in death of other differences viability respective regarding under their homicide states fetal limitations Id., laws, applicability pp. relating of constitutional law to abortion. and the provided only testimony pages of 2404^-2409.O’Brien three transcribed id., pp. never discussed the bom alive rule. See 2417-20. O’Brien which he only question fetal was asked one about whether he believed the homicide provision viability, responded bill contain a on to which he in the should negative. Id., p. 2420.
Finally, with respect
majority’s
focus on legisla-
history,
tive
it is more than ironic that
majority
finds the enactment of the aggravated assault statute
equivalent
to legislative affirmation of the bom alive
*179
rule when it
statutory
also declares that the
provisions
pertaining murder and the
“person,”
definition of
the
only relevant
present
statutes in the
case, are unclear
pertinent
and that the
legislative history of
provi-
those
sions
guidance
respect
“offers no
to the issue [of]
. . . whether a person who murders a
woman
pregnant
may
also
be found
of
guilty
the murder of
if
baby
baby
is bom alive and later dies from the injuries
hearing
aggravated
produced approximately
The
on the
assault bill
eleven
pages
testimony
of
Standing
transcribed
from six witnesses. Conn. Joint
Hearings, Judiciary,
Sess., pp. 424-26, 461-66,
Committee
Pt.
477.
only
referring
O’Brien,
The
witness
to the bom'alive rule was
who stated
presentation
proposed legislation
in his initial
that the
continued “Connecti-
medically
rule,”
cut’s adherence to
obsolete . . . bom
[the]
alive
which
Id., p.
had
suggested
been created “as a rule of evidence.”
424. O’Brien later
changes
proposed legislation.
id., p.
several
Following
See
425.
these
remarks,
response
question regarding
and in
to a
whether there should be
any
age
limitation on the
of the fetus at the time of the assault on the
pregnant woman,
replied
“apply
any stage
O’Brien
that the law should
at
gestation. Essentially,
books,
that’s what Connecticut has on the
or at
today.
problem
least
common law
recognize
The
is not that we don’t
person.
problem
unborn
in
child Connecticut as a
is that we have the
prove
person.
got
bom alive rule to
that it’s a
It’s
to take its first breath.”
Id., p.426. Representative
[proposed legisla-
Robert Farrthen asked: “Butthe
actually going
conception,
...
is
from
tion]
but it doesn’t treat it as a
separate
you’re saying.” Id.,
Represen-
case of murder is that what
remarks of
responded:
right.
simply
tative Robert Farr. O’Brien
talking
“That’s
It’s
about
pregnancy, pregnant
Representative
the woman and her
a
woman.” Id.
Fan-
comment,
made one other
rule,
minor
also unrelated to the bom alive
before
testimony,
abundantly
the next witness testified. Id. On the basis of this
it is
clear that there was no
during
discussion of the bom alive rule
the two
judiciary
hearings,
single
committee
as no committee member directed a
question
any
regarding
meaning
witness
or relevance of the bom
Similarly,
alive
of,
rule under Connecticut law.
there was no discussion
or
to,
during subsequent
reference
thé bom
aggravated
alive rule
debate on the
Thus, majority’s
repeated
assault bill
the House and Senate chambers.
unsupported-
legislature
assertions that the
considered the bom alive
by Forsythe
rule because of the few unsolicited comments made
and O’Brien
hearings
only
misrepresentation
at the
can be described
as a
of the record.
shared
útero,”
a conclusion
baby
while the
is
inflicted
in this case.
the trial court
which is
analysis,
In
to its common-law
addition
adoption fact that
light
irrelevant
entirely
law of
our common
abrogated
Code in 1969
Penal
Ross,
supra,
197;
Conn.
e.g., see,
crimes;
fills a
bom alive rule
majority maintains that the
majority opinion;
54 of the
“gap”
law;
in the
footnote
there would
mle,
but for the existence of
because,
on
injuries
fatal
the infliction of
penalty
be no
I
that the
bom alive.
subsequently
agree
fetus that
not intended to address
aggravated assault statute was
the death
in which an assault causes
situations
believe, however,
I
it is bom alive. also
fetus after
penalty
causing
lack
in Connecticut for
current
*180
law. The
represent
gap
such a death
a
in the
does
that
of a
legislature merely has determined
an assault
of
pregnant woman that results in the termination
her
felony.
pregnancy
legislative history
is a class A
As the
demonstrates,
of
the
aggravated
leg
the
assault statute
independent
legal
fetus
grant
islature declined to
the
by pro-choice
in the
rights
strong opposition
face of
a
and, therefore,
never has enacted
law
advocates,
it
directly
any type
penalty
causing the
imposing
of
for
death of a
either
or after it is bom. The
fetus,
before
impos
majority’s
of the statute as
mischaracterization
a
ing
penalty
support
gap
such a
of its assertion that
at
reflects,
best,
the law exists
a serious misunder
and,
a
history
worst,
of the
at
mis
standing
legislative
justification
attempt
create a
for
guided
to
theoretical
majority
the bom alive rule.361
with the
adopting
agree
36
concept
justify
majority
“gap” to
To the extent that the
relies on the
of a
injuries
penalty
imposition
of a
the
fatal
on a fetus that
for
infliction of
majority
subsequently
alive,
reasoning
of the
is
bom
its
is flawed. Footnote 54
opinion.
“gap”
law,
Any
may
filling
law
viewed
a new
new
be
because
by definition, is
resolve an
that never has been addressed.
intended to
issue
Thus,
every
gap
recognition
law is
to fill a
of the fact that
new
intended
concept
justify adoption
gap
to
of the bom alive rule in
renders the
of
present
essentially meaningless.
case
lack of
penalty
such a
is a matter of concern.
imposition
by judicial
of a
fiat
penalty
in the
of clear
however,
absence
legislative guidance,
defies
common
legal
sense,
and interferes with the prerog
atives of another
of government.
branch
See State v.
Anonymous
(1986-1), supra,
Sup.
(“For
Conn.
explore
this court
new fields of
is foreign
crime
concepts
justice
questions
modem
of
raises serious
of
separation
powers
between it
legislature.
and the
Therefore, any
‘person’
word
must be
redefining
legislature,
primary authority
left to the
which has the
to define
see also State v.
62 Ohio St.
crimes.”);
Gray,
518, 584
3d
N.E.2d
(1992) (“[a]
court should not
place a tenuous constmction on
address a
statute to
[a]
problem
readily
which the
is
legislative attention
readily
directed and which it can
if in its judg
resolve
appropriate subject
an
ment it is
legislation” [internal
quotation marks omitted]). Furthermore,
majority’s
adoption
penalty
the bom alive rule means
causing
fatally injured
for
death of a fetus that is
subsequently
will
but
bom alive
be far
than the
greater
penalty
legislature
established
for
assault
woman that results in the
pregnant
termination of
presently
her
pregnancy. Accordingly, although there
punishment
no
causing
death of a fetus who
prenatal
dies after birth from
injuries, adoption of the
*181
respect
Lamy, supra,
n.3,
v.
With
bom exposed will to two differ now be perpetrators because conduct, essentially the same for consequences ent before the fetus dies basis of whether merely on the two perpetrator Subjecting bom. or after it is different how it takes depending long on penalties any unheard of my knowledge, is, victim to die support legisla finds no context,37 other criminal previously and, homicide bill history of the fetal tive process Creating due concerns. noted, raises serious vastly consequences different penalty second injuries prenatal that dies from death of a fetus reprehensible effect will have the after birth also perpetrator for the to conduct an incentive providing pregnant vicious attack on a more bmtal and an even thus dies in útero and to ensure that the fetus woman will of death that punishment serious escape the more dies after birth. Such an very likely follow if the fetus have been intended bizarre result could not absurd and by the legislature. claim, majority’s it is the
Contrary
majority’s
my interpretation
adoption
mle,
of the bom alive
will
history, legislative
of the relevant statutes and
statutory
con-
principles
several cardinal
“[violate]
canon
These include the well established
struction.”
majority’s inteipretation
mle,
distinguish
of the bom alive
which
37 I
year
causation,
longer
from the common-law
no
functions as a rale
day rule,
for homicide if the
a rale of causation that “bars
conviction
year
day of
conduct that caused
does not die within one
and one
victim
day
Bronson, supra,
year
To the extent that
doubt
lingering
remains as to
how the murder statute should
I
construed,
be
believe
rely
that the court must
on the well established rule of
lenity,
any
which directs that
in a
ambiguity
capital
felony statute must
interpreted
be
favor of the defen-
Harrell,
see State
dant;
238 Conn.
832-33, 838,
point
my
841 especially in “an killing the the defendant committed to depraved manner,” both heinous, cruel or majority Id., the 542. The only victims or one of victims. of in Courchesne conceded that the text the statutes that the state interpretation favored the defendant’s had been murdered prove must both of victims that see heinous, depraved manner; or especially in an cruel lenity rule of to id., 546-47; apply declined but id., language. in the See resolve statute’s ambiguities I J., dissenting). see 597-98 555-56; id., also (Zarella, majority failure to follow the with the for its disagreed command, especially clear in the context of rule’s pre- We are capital felony. id., See 609-13. now 597-99, question involving related stat- sented with a similar majority’s I ute, and, again, disagree once this venerable present ignore decision case to rule. Courchesne, lenity, I rule of which
As stated in
“[t]he
principles
embodies
fundamental constitutional
process
separation
powers; see, e.g.,
due
and
Bass,
United
States
336, 348,
v.
404 U.S.
S. Ct.
provides
our
penalty
utes 53a-54a which in relevant “A person guilty when, is of murder with intent to cause person the death of another ... he causes the death person person of such or of . . .” a third . General “person” (1) being § Statutes 53a-3 defines as “ahúman majority statutory provisions . . . .” The states that the pertinent history legislative are unclear and that the respect guidance [of] “offers no . . . issue person pregnant whether a who murders a woman also may guilty baby be found the murder of the if the baby injuries is bom alive and later dies from the baby útero, inflicted while the is in in the course killing court, the intentional of the mother.” The trial Damiani, J., likewise indicated its memorandum of decision on the defendant’s motion to dismiss for lack probable express statutory cause that there is no authority proposition Connecticut for that the “person” definition of under the murder statute includes injuries a fetus that bom alive and later is succumbs to supra, Courchesne, inflicted in útero. See State v. Sup. Consequently, majority Conn. 66-67. and the is no express that there court have concluded trial both impose the death statutory scheme to intention in the occurring second of two deaths penalty when the involves a fetus that transaction the course of the same alive. In these fatally is bom injured subsequently but only should, but lenity mle of circumstances, express inten- of an must, be to resolve the lack applied United States statutory scheme;38 see, e.g., in the tion 117 L. 1329, 112 S. Ct. C., v. R. L. 503 U.S. lenity reserved for “those 2d (1992) (rule Ed. persists doubt about in which a reasonable situations marks scope” quotation a statute’s intended [internal so majority’s failure to do constitutes omitted]); and the analysis. fatal flaw in its Holmes, to the words of Justice In I return closing, *185 thoughts when following who offered the additional of whether well established reflecting question on the we perpetuated: be want to rules of law should “[I]f why particular shape, has know mle of law taken its a why it at and more less if we want to know exists or practical . . . find out the all, gowe to tradition. [W]e best is the fact justified motive for what now mere its and that are to it. acceptance of men accustomed law is a the study large The rational of still to extent History of study history. part study, must be a precise scope because it we know the without cannot rules our know. It part which it is business to is a step first study, of the rational because it is the toward enlightened [skepticism, is, an toward deliberate you of the worth of those mies. When reconsideration plain his in get the out of cave on and dragon count and daylight, you claws, can his teeth supra, Courchesne, as I 262 Conn. n.8 Just stated in State 611-12 case, (Zaretta, J., up, present question dissenting), I do not take in the lenity applied resorting be or after of whether the rule of should before statutory interpretation I do not believe such other sources of because clarifying sources in at issue. assist statutes just
see
what is his
But
strength.
get
only
him out is
step.
first
The next is either to kill
or
him,
to tame
him and make him a
Holmes,
useful animal.” O.
supra,
10 Harv. L. Rev.
Having
469.
out of
gotten
dragon
his cave and examined the roots of the bom alive rule,
come to
having
understand its creation as an evi-
dentiary 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 medical science
have rendered the rule
obsolete,
conclusion now
majority
shared
jurisdictions.
vast
of other
It is
slay
time to
the dragon
purpose
for the
creating
more useful
responsibil-
rule that will establish criminal
ity
fetus,
for the
of a
killing
regardless of when it dies.
This is a task for the
legislature,
courts,
because
requires
open
it
public
kind
debate
vigorous
unique
that is
to the exercise of legislative discretion.
Until that time,
rely
the court must
on the rule of lenity,
any
which mandates that
in a
ambiguity
capital felony
statute be
constmed
favor of the defendant absent
scheme. State express
statutory
an
intention in the
Harrell,
supra,
SCHALLER, J., concurring part and dissenting part. majority’s I agree part with the decision in I of its *186 opinion properly that the trial court denied the motion of the defendant, Courchesne, suppress Robert to his written confessions and other connecting evidence him with the murder of Demetris I dis- Rodgers (Rodgers). agree, however, respect majority’s with conclu- parts sions in II V of through opinion its concluding that the bom alive rule is embodied in our Penal Code and that the defendant had fair notice that the rule apply would conduct, to his the doctrine of construing fashion, transferred intent in novel and remanding the trial, case for a new at which the state will have another prove Rodgers (Antonia) opportunity to that Antonia respect I conclusions, to these at birth. alive With join regard, agree generally in Justice in that and, with opinion concluding dissenting concurring and Zarella’s antiquated, illogical and inco- alive the bom rule is that requires that statute murder herent, Connecticut’s “person” of act a the time the criminal victim be at a any lenity to resolve the rule counsels us and that ambiguity capital felony in statutes our murder and separately emphasize to the defendant. I write favor of by majority’s the defen- conclusions, virtue of the that, process required has been denied the due dant United constitu- amendment to the States fourteenth subject jeopardy to further, double tion, and will be upon retrial. emphasize time of 1998,
I at at the the outset underlying convictions, the the defendant’s the events resulting pregnancy from an of a in útero termination independent act, was not an criminal as to either assault appeal primary is fetus or the mother.1The issue on provided sufficient law, whether Connecticut's warning that, and fair to the defendant stab notice subject penalty Rodgers, bing he to would be the death pursuant (Rev. 1997) § to 53a-54b General Statutes (9)2 upon (8) for an a assault fetus—a noncriminal against distinguished underlying from assault The act fetus is to be pregnancy. mother that of a In five on its results in the termination case, years underlying present legislature after the in the enacted events 53a-59c, felony § Statutes criminalized as class A the assault General which preg pregnant woman results in of a when the “assault the termination nancy (a) General § that does result in a live birth.” Statutes 53a-59c date, legislature yet adopt (2). recognizing a fetus To has statute potential as a “victim” of assault. itself 1997) person (Rev. 53a-54b, § to General is Pursuant Statutes “[a] capital felony any following (8) guilty of a is convicted of ... who persons single of two or more the same time or in the course of a murder at transaction; years (9) person age.” sixteen Pursuant or murder of a under person guilty when, (a), § to General Statutes 53a-54a of murder “[a] person, cause the death he of such intent to of another causes the death person person third or of a . . . .”
act —because an
cesarean
emergency
delivery
section
by
professionals
medical
approximately one hour later3
would result in the “birth”
subsequent
“death”4 of
juvenile
a second,
victim, Antonia.5 In concluding that
process
the defendant’s due
rights to notice
fair
recognize
may
generally
expected
3 I
that medical intervention
be
to follow
that,
instances,
an
in
assault and
certain
such intervention can affect the
criminality
particular
degree
example,
may
of
conduct. For
a defendant
charged
attempted
only
be
murder instead of murder
because of the
fortuity
timely
present case,
and successful medical intervention. In the
however,
being
successful medical intervention resulted in the defendant
subject
harsher,
lesser,
penalties.
is,
rather than
criminal
Such a result
my opinion, thoroughly
and,
reasonably
accordingly,
in
bizarre
could not
expected by
any
have been
or
defendant
other resident of Connecticut.
4Because,
light
appeal,
in
of the resolution of this
the issue of whether
open, place
Antonia ever was “alive” remains
I
the terms “birth” and “death”
quotation
in
marks.
5Simply put, the combined effect of unforeseeable events and a novel
interpretation
applied
of our murder statutes as
to those events has trans
útero,
formed the death of a fetus in
which at the time of the defendant’s
Rodgers
act,
eligible
assault of
was a noncriminal
into an offense
for the
penalty. Compare Chapman
States,
453, 467-68,
death
v. United
500 U.S.
1919,
(noting,
process
rejecting
claim,
111 S. Ct.
847 therefore, and, upholding violated were not warning this statute in penalty of our death applicability the two, on, one, not but majority has relied instance, the is com The first the questionable fictions. legal highly the mle; doctrine mon-law bom alive second defining the statutes transferred intent. Because neither any author history prior, nor or murder, legislative their any those statutes judicial gave itative constmction of incorpo had been the bom alive mle indication that cannot, part code, the defendant rated as of our criminal principles, be process federal due consistent with and constmctively knowledge with had charged having to him render apply the rale would and warning fair that Furthermore, penalty him of death. eligible for prose sufficient provide guidance to legislature did it cutors, juries as to whether intended judges proscribed, leading at be to the arbi conduct issue to execution while trary facing result of the defendant escaped punish individual has equally culpable another essentially the same act entirely ment for committing Lanier, the same result. See achieving even Alternatively, A.2d 404 (2005). Conn. application of adoption and retroactive if this court’s present in the case somehow were the bom alive mle proper, the state at trial failed constitutionally because disprove Antonia an irreversible to had suffered activity prior her the evi “birth,” cessation of brain was that she was bom dence insufficient establish judgment acquit “alive.” it is clear that a Accordingly, tal, rather a new should be ordered trial, than from the death of respect charges arising .6 reasons, I respectfully Antonia For the foregoing dissent. charge fetus in an additional notice that death of her would result entirely distinct, Obviously,
murder.
issues are
and the defendant
those
prosecuting
Rodgers
him
raises no claim
for the murder
offends
process.
due
and, therefore,
Because the
to convict
evidence
insufficient
proper remedy
acquittal,
majority’s
judgment of
remand of the case
is a
I
A
majority
As
observes,
to be eligible for the death
penalty pursuant to 53a-54b (8)
§
the defendant
(9),
responsible
must have been
for the death of two or
*189
“persons”
more
or the
“person”
death of a
under sixteen
years
respectively.
of age,
See footnote 2 of this concur
ring
dissenting opinion. The issue of whether the
defendant had notice and fair warning that the eleventh
hour,
delivery
cesarean section
emergency
in
resulting
the “birth” and subsequent “death” of Antonia would
transform the noncriminal
upon
act of an assault
a fetus
in útero into a second act of murder
him
rendering
for the death
eligible
penalty, therefore,
turns primarily
on whether the
use
legislature’s
“person”
of the word
in our criminal
sufficiently
statutes made it
clear to the
defendant
that his actions could lead to an additional
prosecution,
prosecution
criminal
i.e.,
beyond that for
s.7
the murder of
With
Rodger
respect
clarity
to the
required for statutes proscribing particular conduct,
Justice Oliver Wendell
explained
Holmes
that “fair
rights against
jeopardy.
for a new trial violates the defendant’s
double
“The
[djouble [¡jeopardy [cjlause
purpose
forbids a second trial for the
of
affording
prosecution
opportunity
supply
another
to
evidence which it
proceeding.”
States,
failed
to muster
the first
Burks v. United
437 U.S.
1, 11,
2141,
(1978).
[cjlause
98 S. Ct.
849
language
be
to the world
warning
given
should
what
law
understand,
world will
the common
passed. To make the
if a
line is
intends to do
certain
be
the line should
clear.”
warning fair,
possible
so far
McBoyle
340, 75
Ct.
States,
ted.)
“The
(2010).
general
constitutionality
rule is that the
statutory
provision being attacked as void for
vagueness
applicability
determined
the statute’s
particular
facts at
(Internal quotation
issue.”
marks
State v.
Sorabella,
“Second,
‘junior
sort of
version of
vagueness
doctrine,’ H.
Packer,
Limits of the Criminal Sanc
p. 95],
tion
the canon
[(1968)
of strict construction of
criminal statutes,
lenity,
or rule of
ensures fair warning
by so resolving ambiguity in a criminal statute as to
apply only
clearly
it
to conduct
covered.” United States
v. Lanier, supra,
851
clearly
has
legislature
that the
a conclusion
based on
.
. .
known.
its intention
made
unambiguously
lenity applicable
construction
of strict
The rules
‘especially pertinent
are
penal
generally
statutes
”10 (Citations
such as 53a-54b.’
§
statute
penalty
a death
Harrell, 238 Conn.
v.
emphasis added.)
omitted;
McGann,
see also State
(1996);
“Third, although uncertain on an otherwise by judicial gloss supplied applying courts from process . bars statute . . due to conduct that a criminal statute construction of novel has any judicial decision prior statute nor neither the . . . .” scope (Citations within its fairly disclosed to be U.S. 266. Lanier, supra, 520 United States omitted.) is unex criminal statute judicial “If a construction of a the law which by reference to pected and indefensible must issue, it expressed prior to the conduct had been quotation (Internal retroactive effect.”* given not be construction than criminal statutes deserve a stricter “No doubt some felony things being equal, more statutes should be construed others. Other punishments strictly statutes; severe more those with than misdemeanor morally involving lighter penalties; conduct more those bad than those with bad; involving involving conduct with conduct not so those than those consequences public consequences whose more than those drastic carelessly public terrible; done care drafted more than those are less those p. (d), LaFave, (2d 2003) fully.” § Ed. 2.2 W. Substantive Criminal Law counseling all, foregoing presents most, of the hallmarks 126.This case if not in favor of the defendant. stricter construction judicial enlargement a criminal This is because “an unforeseeable post law, retroactively, operates precisely statute, applied ex facto like an post I, 10, An ex facto law has § of the forbids. such as [constitution [a]rt. by Supreme as one that makes an United States Court] been defined [the law, passing innocent when and which was action done before the crime, done, criminal; punishes action, aggravates a or such or that legislature greater was, committed. ... If a state makes it than it when law, [p]ost passing it must from such barred [c]lause [e]x [f]acto [p]rocess Supreme Court is barred the [d]ue [c]lause follow that a [s]tate *192 852 Columbia, v. 378 U.S. omitted.) supra,
marks Bouie also v. Commissioner Correc 354; Washington see Similarly, Conn. A.2d 1220 tion, 792, 806, 950 (2008). judicial “a alteration of a common law doctrine of crimi fair principle warning, nal law violates the hence retroactive effect . . . where it is given must not be by reference to the law unexpected and indefensible expressed prior had been to the conduct which quotation Rogers marks (Internal omitted.) issue.” 451, 462, 532 U.S. 121 S. Ct. 149 L. Ed. Tennessee, 2d 697 (2001). prescribed
No concrete
are
for courts
guidelines
make a substantive determination about
seeking to
interpreta
or whether a new
vague,
whether
statute is
unexpected or indefensible with
tion of a statute is
law. See Ortiz v. N.
previously
reference to
stated
Y.S.
Bronx, N.Y.,
(2d
2009)
Parole in
586 F.3d
Cir.
a . . .
process
general
due
to fair notice is
(“[t]he
right
a substantial element of
rule of law that demandfs]
hardly
implemented
. . . and can
be
. . .
judgment
mechanically”
quotation marks
see
omitted]);
[internal
1 W.
Criminal Law
LaFave,
(2d
also
Substantive
Ed.
p.
simple litmus-paper
2.3
is no
2003)
(a),
(“[t]here
§
test for
whether
criminal statute is void
determining
process
In either due
vagueness”).
guise, however,
statute,
“the touchstone is whether the
either standing
construed,
reasonably
alone or as
made it
clear at the
relevant
time that the defendant’s conduct was crimi
Lanier, supra,
nal.”
United States v.
(Emphasis added.)
In of murder charge his motion dismiss as to Antonia, argued the defendant both Antonia was . . . person, “not defined [General Statutes] precisely by judicial achieving (Citation from the same result construction.” Columbia, omitted; quotation omitted.) supra, Bouie internal marks U.S. 353-54.
853 trial court determine that, should the (1)” 53a-3 § interpretation could not a novel contrary, such retroactively violating to the defendant without apply In warning. to notice and fair rights his constitutional the trial dismiss, motion to the defendant’s denying court, Damiani, J., concluded “that the murder and the felony as to facts capital applied statutes [this] lenity that the rule of are not such ambiguous” case Courchesne, State v. Sup. 63, 70, 46 Conn. apply. would court, the trial the A.2d 699 to (1999). According 757 (1986- Anonymous State v. Court Superior opinion (1986) (Anony- 156 1), Sup. 498, 40 Conn. A.2d actually be notice mous), given “can considered to have concerning Antonia consti- that the defendant’s actions State from that of separate [Rodgers].” tuted a murder Courchesne, supra, words, In trial 72. other court judicial pro- statutes, along gloss with the held that by Anonymous, clearly applied to vided the defendant unconstitutionally not Id. The trial vague.12 and were statutory in the court, recognizing nothing language history or of the murder statutes addressed legislative provisions at relied related from hand, the issue also on the Model Penal Code New York Penal Code and inteipret law treatises statutes. I two criminal to defining the trial court that the statutes disagree murder, interpretative even with the assistance of these unconstitutionally applied as aids, vague are defendant’s conduct.13 statutory most obvi-
Beginning
language,
with the
warning
pro-
to what
ous source
fair
as
conduct
within
53a-3
defines
jurisdiction,
scribed
(1)
§
“
”
part,
in relevant
as “a human
‘[p]erson,’
being
analyzing
claim,
In
court cited
state and federal
trial
vagueness jurisprudence.
rejected
retroactivity
Specifi
The trial court
claim.
also
defendant’s
prosecution
cally,
disagreed
the court
of the defendant for the murder
impermissible
in reliance
bom alive
was an
Antonia
on the
rule
retroactive
application
applies
judicial
of a novel
constmction because “the rule [that]
liability
to establish the defendant’s
was not created after he acted. That
capital felony
rule existed before the murder and
statutes were enacted and
Courchesne, supra,
continues to be in effect after their enactment.”
Sup.
46 Conn.
72.
appeal, although
press
vagueness
On
the defendant continues to
both
retroactivity claims, majority opinion,
reciting vagueness
while at times
principles,
vagueness
directly but, instead,
does not address the
claim
char-
process argument
invoking only
acterizes the defendant’s due
the retroac-
tivity
majority proceeds
rely heavily
doctrine. The
on cases that involved
*194
doctrine, i.e.,
openly
that
acknowledged
cases in which the court
that the
change
is, therefore,
decision involved a
in the law. It
unclear whether the
majority: (1) agrees
statutes,
previously
with the trial court that the
Anonymous,
vague
they clearly incorporate
construed
are not
and that
rule,
by
changing
the bom alive
but that this court nevertheless is
the law
adopting
statutory language
a novel construction of the
for the first time
today; (2) concludes, contrary
court,
vague
to the trial
that the statutes are
incorporated,
any vagueness
as to whether the bom alive rule was
but that
may
by
judicial
unexpected
be cured
retroactive
construction that is neither
preexisting
or indefensible with reference to the same
law that was insuffi-
vagueness claim;
(3) concludes, contrary
cient to defeat the
or
to the trial
court,
vague
incorporate
that the statutes are not
and do not
the bom alive
rule,
retroactively may enlarge
scope
statutory
but that this court
“person”
definition of
to include the rule because such construction is not
unexpected
previously
or
light
indefensible with reference to
stated law. In
majority’s position,
of the fundamental confusion that confounds the
evi-
by
amalgamation
vagueness
retroactivity principles
denced
and
that
permeates
process analysis,
majority
its due
it is ironic that the
criticizes
my understanding
process jurisprudence.
of well established due
majority’s approach problematic, regardless
forego
is
of which of the
paths
ing
option, if,
it
found,
has chosen. As to the first
as the trial court
clearly
unambiguous
incorporated
rule,
statutes are
and
the bom alive
simply
improperly
there
is no occasion for this court to decide whether it
retroactively
applying
is
a novel construction of those statutes. See Ortiz
Bronx, N.Y., supra,
v.
(because
N.Y.S. Parole in
principles,
they
long
any
part
so
as
are not inconsistent with
other
Chapter
comprises
Penal Code.
through
951
General
§§
Statutes
53a-4
53a-
23,
principles
liability.”
which “set out the basic
of and defenses to criminal
Statutes,
Comments, supra,
Commission to Revise the Criminal
Penal Code
comment, p.
53a-3,
commission
323. Section
which includes the definition
“
”
‘[p]erson,’
chapter 950, enumerating “general provisions”
falls within
Code,
53a-54a,
proscribes
murder,
§
the Penal
which
falls within
chapter 952, enumerating substantive offenses of the Penal Code. See State
Miranda,
209, 220,
(1988) (“[t]he
245 Conn.
857 Penal on the Model court relied statutes, trial our Law, Penal both New York Revised and the Code as Code,14 grounds Penal as bases for our which served in Con- ‘person’ definition of a that “the concluding for are those who bom criminal law includes necticut Sup. Conn. supra, v. 46 Courchesne, are alive.” State however, codes, in those parallel definitions 67. ” “ ‘[p]erson’ the definition of from significantly differ Code the Model Penal Specifically, in our code. both express Law include York Revised Penal and the New 2 See that of the bom alive rule. mirroring language Com- Institute, Penal Code and American Law Model Code) p. (Model 210.0 Penal (1), § mentaries (1980) ” “ person “a who has been being’ ‘human (defining New York Penal [emphasis added]); alive” bom “ ” ‘person’ (defining (1) (McKinney 1975) Law 125.05 § bom and is alive” as “a human who has been being added]). Additionally, commentary [emphasis of this explains Model Penal Code effect “[t]he limiting rule is to continue common-law language and, furthermore, ty’s I because believe the extensive reliance on them majority’s they purportedly characterization of them and the results dictate are inaccurate. 14 Although part on the murder section of our Penal Code was based in Code; New York Revised Penal Law and Penal see the Model Commission Statutes, Comments, to Revise the Criminal Penal Code Conn. Gen. Stat. comment; rely inevitably (West 1971), §Ann. commission we do not 53a-54a upon provisions provisions of those codes to construe related Connecticut Ross, identically. 183, 197-99, (1994), In State A.2d 230 Conn. denied, 1133, (1995), U.S. Ct. 130 L. 2d 1095 cert. 115 S. Ed. example, adopt declined to wholesale the Model Code’s this court Penal principles jurisdiction principles not of extraterritorial where those had incorporated explicitly Moreover, this been into Connecticut’s code. “[a]s similarity noted, language existing has where there between is] court [even Codes, compel Penal a like the New York and Connecticut does [such] Mastropetre, 522, 400 (1978). construction.” 175 Conn. A.2d 276 effectively despite approaches, Here, however, varying defendant was predicting that, defining may charged who as to be the victim of although homicide, legislature, it the trial court would conclude that the adopt approach explicitly, the Model Penal nevertheless declined Code adopt it. intended
858 criminal homicide to the of one killing who has been Code, 210.1, bom alive.”152 Penal supra, Model com- § 4 explicit, unambiguous p. ment 11. of (c), Because this within language, jurisdiction defendant governed clearly on either code would be notice that that jurisdiction adopted had the bom alive rule.
By contrast, Assembly’s our General conspicuous phrase, omission of the “who has been bom statutory from alive,” “per Connecticut’s definition son” a conscious strongly suggests legislative choice v. Miranda, the bom alive rule. adopt A.2d 1118 (2005) (Vertefeuille, J., 727, 761-62, 878 Conn. adopt concurring) (interpreting legislature’s failure to rejection Model Penal Code definition of “conduct” as in notion, included that encom code, conduct passes positive both acts and failures to see also act); Commonwealth Chretien, Mass. 123, 132-33, (interpreting N.E.2d omission term (1981) statutory “unlawful” from definition as abandonment of common-law spousal exception sexual assault). very respect At least, to notice and fair warning concerns, if a defendant were inclined to in a engage statutory comparison, wholly it would be reasonable conclude, for him to on the basis the legislature’s incorporate decision not to language of the bom rule when defining “person,” alive in legislature to adopt fact had not intended that rule. “The underlying principle fair is that no man shall be held [of notice] criminally responsible for conduct which he could not ” reasonably United States proscribed. understand to be v. Harriss, U.S. supra, 347 617.16 15Following language this is a citation law to a footnote a criminal Code, supra, treatise “and the cited 2 Model authorities therein.” Penal treatise, 210.1, (c), p. turn, portion § comment 4 11 n.22. That cites to the discussing Perkins, of Blackstone’s Commentaries the bom alive rule. See E. p. (2d 1969) Law Criminal Ed. 29 n.10. 16 majority quoted language from recites often decisions of the United Supreme explaining vagueness States Court that the “is not a doctrine principle designed practical to convert into a constitutional dilemma the drawing general enough difficulties criminal statutes both take into *198 adequately this majority explain not
The
does
merely asserts that
but, instead,
important distinction17
sufficiently specific
provide
variety
to
fair
of
account a
human conduct and
process
prohibited,”
warning
that
certain kinds of conduct are
“[d]ue
that
laundry
prohibited
require
provide
list
conduct
to
a
of
does not
statutes
range
may
general
to
a wide
so as
include
. . .
that
be
nature
[and
laws]
acknowledge
prohibited
quotation
omitted.)
(Internal
I
marks
of
conduct.”
statutory
upheld
that, many instances,
language has been
“[uncertain
greater
subject
more exactness and when
when the
matter would
allow
practical
specificity
language
W.
interfere with
administration.” 1
would
precise
LaFave, supra,
p.
inability
(c),
be
and the
§ 2.3
151. The
to
desire
may
flexibility
extensive,
descriptions
limiting
that
reduce
in the
to avoid
statute,
drafting
application
however, simply
real
in the
of a
are not
concerns
provision
person
purposes
that
who will
considered
of
defines
be
incorporate
short,
legislature had
to
of the law of homicide. In
if the
intended
statutory
person,
easily
it
into
of
the bom alive rule
Connecticut’s
definition
so,
and the New
could have done
like the drafters of the Modal Penal Code
by
Law,
York
Penal
the
of a mere seven words: “who has
Revised
addition
only
prosecutions
possibly
is alive.”
that
could
been bom and
The
murder
precluded by
prosecutions
be
the
of those words are the
that the
addition
unequivocally
foreclose,
majority
legislature
intended to
has determined the
is, prosecutions
our
deaths of unborn fetuses. Because
code
for the
Revised
was modeled after the Model Penal Code and the New York
Penal
Law,
certainly
option
legislators
using
the
our
most
were aware
the
precise
majority
persuasive
why
language.
more
The
offers no
reason
the
simultaneously intending
incorpo-
legislature
while
to
would decline to do so
clearly
conveyed.
language
rate the rule that the omitted
so
would have
17 majority’s
point weak,
point
this
to the
answer to
is
almost
Essentially,
response.
majority
that, although
warranting no
the
asserts
the
accompa
Model Penal Code definition mirrors the bom alive rule and the
nying commentary,
rule,
discussing
cites to
the bom alive
which
material
explains
language
common-law
effect of this
is to continue the
“[t]he
limiting
killing
one
been
rule
criminal homicide to the
who has
bom
alive,”
clear
the
the Model Penal
it nevertheless is not
whether
drafters of
rule,
incorporate
although
Code intended to
the bom alive
a number of
courts, including
court,
precisely
opposite.
have
the
In
trial
concluded
any
majority,
event, according
the differences between
relevant
provisions
unimportant
clearly
legislature’s
are
because
evi
our
intent
opinion
statute,
denced
of the Model
Code drafters that our
Penal
although
“may
carry
point,
expected
on
be
silent
forward
common-
approach”;
Code,
210.1,
(c), p. 11;
supra, §
law
Penal
Model
comment
or, alternatively,
musings
general
a treatise author’s
as to what “courts”
usually
LaFave, supra,
pp.
Thus,
(c),
§
do. See 1 W.
14.1
n.13.
419-20
simply
majority argues,
saying
meant,
legislature
it
instead of
what
our
expected
general public
to discern and infer its hidden intent from its
repudiate expressly speculative commentary appearing
failure
in the
code
predictions.
jurisdictions,
agree
of other
or in footnoted treatise
I cannot
reasoning.
strained
this
“the bom alive rule has been embodied in our Penal
Code since
adoption nearly
quarter
its
century
of a
. . . .”
ago
(Citation
Precisely
omitted.)
how the bom
alive rule became embodied in our
Code, despite
Penal
the legislature’s omission of the
statutory
relevant
lan-
guage,
majority
does not explain.18 Moreover, the
majority declines
explain why
the legislature’s failure
to designate clearly
precisely
point
at which
*199
criminal
liability attaches
arbitrary
has not
led to
Compare
enforcement.
v. Alfieri,
State
132 Ohio App.
3d 69, 78,
I
that
expressly
jurisdiction
need not
Code
suggests
for the
into its statutes
incorporate the bom alive rule
pressed
Latour,
399, 401,
(2005). I am hard
276 Conn.
In addition to the fact that our
legislature,
promul-
the Penal
gating
Code,
expressly
did not
adopt the bom
alive rule and, therefore,
provide
did not
notice of that
rule
defendant,
history
jurisprudence
of our
similarly fails to demonstrate that this archaic rule ever
entered Connecticut’s common law. In
major-
fact,
ity opinion has the distinction of
the first
being
appellate
court decision in
rely
Connecticut ever to
on the bom
years
alive rule.21
Moreover,
preceding the defen-
D.,
In In re Valerie
App. 586, 591-92,
25 Conn.
(1991),
863
sepa
on four
appellate courts
act,
dant’s
Connecticut
of
involving
murders
decided cases
rate occasions
charges for
not include
victims that did
pregnant
defen
In
of notice
future
of the fetuses.
terms
deaths
that Connecticut
opinions
indicated
dants,
those
murder
victim one
pregnant
the murder
a
regarded
Roman,
State v.
of mother. See
only, i.e., the murder
pregnant
63,
(1992) (death
that Connecticut was
inclined to afford much
statute,
previously
opinion,
no
as there is
As I mentioned
in this
there was
penalties
53a-59c; imposing
now;
for an
§
General
additional
see
Statutes
pregnant
her
in útero.
a
woman
results in the death of
fetus
assault of
Furthermore,
actions toward
this court had held that mother’s detrimental
birth,
child, occurring prior
not form the basis
her
to the child’s
could
D.,
parental rights.
petition
In re
to terminate the mother’s
Valerie
505,
Finally,
492,
(1992).
United
Conn.
864
only
as to the existence of the
acknowledgment
history
bom alive rule in the
of Connecticut criminal
jurisprudence23
in
in
occurred,
dicta,
a lone decision of
our Superior Court. In
v. Anonymous
(1986-1),
supra,
Sup. 498,
applied
40 Conn.
the state
for an arrest
charging
warrant
the accused with
murder
the
of an
unborn —but
After a
of
viable —fetus.
review the legisla
history
Code,
statutory
tive
of our Penal
scheme,
the common law,
process jurisprudence,
due
and the
scope
judicial authority,
of
the trial court concluded
that an unborn,
viable,
qualify
but
fetus did not
as a
person
of
meaning
Id.,
within
53a-3 (1).
§
500-505.
In a closing aside, the court observed
its
decision
related to criminal
not to
law,
law,
tort
and cited
to a
of
Supreme
Illinois;
decision
Court of
People
v.
Ill.
Greer,
103,
2d
865 in cases rale criminal the bom-alive change to refused v. State quotation omitted.) marks . . .” (Internal . or The supra, 505. substance Anonymous (1986-1), however, was not itself, rule the alive bom propriety at directly issue or even discussed, applied otherwise Anonymous.24 in 24 description majority’s lengthy oí content of the trial court’s the The namely, include, Anonymous not opinion what it does in is notable for operation or explaining bom alive rale an overt the the statement clear Contrary controlling acknowledgment law in Connecticut. that it is way Anonymous, in majority’s the court no trial initial characterization concluding expressly fetus in in that a killed on the bom alive rule “relied added) statute”; (emphasis person purposes of our murder is not a for útero 505; necessary Sup. Anonymous (1986-1), supra, it 40 Conn. nor was v. State opinion, previously the court so. I noted in this trial the court to do As for intent, Anonymous explored many legislative none of which sources of in legislature protections of the criminal the indicated that intended purported apply unborn, in victim to to viable fetuses. Because code injuries alive, expired
Anonymous
inflicted
bora
then
from
had
been
útero,
simply
legislature
to
had no occasion
decide what rule
in
the court
accordingly,
opinion
and,
in
does
intended to control
that circumstance
had,
judicial opinion
goes
in a
not discuss it. Even if it
“discussion
that
beyond
is
have
the facts involved in the issues mere dictum and does not
supra,
precedent.”
Bronson,
v.
In
present
therefore,
I
case,
disagree with the
trial court that
far
it
the proposition
stands for
“[a]s
that Connecticut
law
follows
common
rule on this
point, the court’s
can
Anonymous
decision
be consid-
actually
ered to
given
have
notice that the defendant’s
. .
concerning
actions
Antonia
.
constituted murder
separate from that of her mother.”
v. Courchesne,
*204
supra,
Sup.
Foremost,
Conn.
72.
dicta from a lone
Superior
decision of the
Court cannot be said to consti-
pronouncement
tute an authoritative
toas whether Con-
adopted
necticut has
the bom alive rule. Cf.
Rogers
Tennessee, supra,
year
868
e.g.,
Richey,
77,
Bradshaw v.
U.S. 74,
126 S. Ct.
602,
L. Ed.
process
2d 407
due
(2005) (rejecting
to Ohio
challenge
Supreme
application
Court’s
of trans-
felony
ferred intent doctrine to aggravated
murder stat-
concurring
dissenting opinion,
in
decisions cited
the main text of this
jurisprudence concerning
appro-
that our sister states’
their statutes is an
priate
warning
meaning
statute,
source
fair
as to
the
of a Connecticut
language
closer
examination
the source of that
clarifies that it should
broadly. Citing
Proto,
682, 699-700,
be read
to
not
so
State v.
203 Conn.
(1987),
that,
determining
A.2d
we stated
in
whether a
is
statute
unconstitutionally vague,
judicial opinions
guide
that,
“we can use
while
as
binding
court,
question
on this
in
or to a
refer
statute
statute that
language.”
DeFrancesco, supra,
Proto,
uses similar
State v.
869
at the
[Supreme Court
ute because “Ohio
decisions]
fully adequate
respondent’s
provide
of
offense
time
denied,
reh.
applicability”),
of
notice
the [doctrine’s]
L.
2d 1015
1163, 163
(2006);
Ct.
Ed.
1146, 126
546 U.S.
S.
2085,
Ct.
52 L.
Illinois,
767, 771,
U.S.
97 S.
Ward v.
431
because
claim
(rejecting vagueness
Ed. 2d 738 (1977)
from the Illinois
ample
had
“appellant
guidance
to the
Supreme
his conduct did not conform
Court that
566, 575,
415
582
Goguen,
v.
U.S.
Illinois
Smith
law”);
(finding
on Constitutional Law
Ed.
17.8
146
(4th
2008)
(h), p.
§
(“[i]f
n.31
alaw as written
appropriate
and construed
jurisdiction
courts within
does
give
reasonable
to individuals
. . .
notice
conduct
has been
[their]
applied
made
could not be
them
criminal,
statute
to
to a
notice;
due
lack of
such statute should be consid-
” [emphasis
ered
1 W.
‘void-for-vagueness’
added]);
LaFave,
2.3
145
supra,
(a), p.
(“[appropriate
§
n.13
con-
may
struction
the state court
remove the vagueness
objection” [emphasis added]). Similarly, a
nor-
state
mally
only
should
own
look
to its
common law deter-
to
mine whether
a criminal defendant has received
adequate
proscribes.
notice of what
law
Rog-
state
See
v. Tennessee, supra,
ers
U.S.
Thus,
532
464.
although
pronouncements
authoritative
from a
highest
state’s
interpreting
court
its statutes and
may
common law
provide the
and fair
requisite notice
of what
warning
conduct is proscribed,
majority’s complete
reliance
on
instead
dicta from one trial
decision,
court
second-
ary
extrajurisdictional
sources and
some
precedent,
involving differently
statutory provisions,28
worded
questionable in
highly
process
the due
context.29
28See, e.g., People Hall,
App.
69,
(1990)
v.
Div.
158
2d
ment of
and the
§
defendant’s
absolutely
bearing
no
on the
history, have
Richey,
fair
claim. Bradshaw
warning
notice and
years after
U.S. 78
decided several
supra,
(case
of doctrine
application
conduct
in which
defendant’s
no
on
rejected
bearing
intent was
of transferred
“ha[d]
the time of the
conduct
charged
whether the law at
provide fair notice”).
was clear
enough
majority’s
that the
core,
to its
conclusion
Pared
fair
of the bom alive
warning
defendant had notice and
which, in
law in Connecticut
rule as the established
conduct
context, transformed noncriminal
present
is based
penalty,
for the death
eligible
into an offense
decision,
Superior
from one
Court criminal
on dicta
law,
tort
Superior
addressing
Court civil cases
two
written in
originally
treatise33
Connecticut
majority’s
Zephaniah
disagree
and William
with the
reliance on
Swift
33 I
firmly
that,
proposition
because the bom alive rule was
Blackstone for the
automatically
part
generally,
law
it
became
entrenched in the common
any explicit adoption
without
of the common law of Connecticut
wrote,
legislature
Blackstone
the common
or the courts of this state. “[A]s
automatically
England,
transfer to the American
law was a law for
and did not
adopted.
[cjolonies; rather,
See 1
Blackstone
it had to be
[W.]
[Commentaries
England (1769)]
(observing that the common
on the Laws of
*107-*108
authority
such,
England,
American
law
has no allowance or
[o]ur
System
plantations);
the State of
see also 1
Swift
of the Laws of
[Z.]
[A
p.
English
binding
(1795)
([t]he
common law is not in itself
Connecticut
45]
id.,
English
state);
law has never been consid
in this
common
[44-45] Qt]he
here,
England).
obligatory
more
than the Roman law has been
ered to be
perfectly
pick
short,
free to
and choose
In
the colonial courts felt themselves
they
adopt.”
quota
parts
English
(Internal
would
which
common law
Tennessee, supra,
(Scalia, J.,
omitted.) Rogers v.
In
acknowledgment
that the bom alive rule
newly
is being
recognized
today
in Connecticut
by vir
tue of this
present
court’s decision in the
case, the
majority
disregards
defendant’s vagueness argu
ment, and all of the law that I have cited, and instead
heavily
relies
on
Supreme
the United States
Court’s
decision in Rogers v. Tennessee, supra,
this *213 an unre- Court next stated Supreme The United States that law courts namely, point, markable “[c]ommon jurisdictions other to the decisions of frequently look modify alter or a common in whether to determining increased circumstances, in of light changed law rule Id., 464. experience.” and knowledge, general logic and with the consistent It nevertheless recognized, opin- I cited in this jurisprudence that have vagueness rale, general that as a purposes evaluating of ion, retroactive applications of those com- challenges to cases, courts’ in criminal defendants holdings mon-law home predicting not their charged should be of those courts’ holdings future on basis courts’ extrajurisdictional precedent. of potential utilization course, does not require person a to process, “Due of [fifty] of all himself of the common law apprise [s]tates subject his will in order to that actions not guarantee of punishment developing him to a trend light way yet that made its to his the law has [s]tate.” Id. The court nevertheless allowed (Emphasis added.) exception appropriate that an in limited circum- stances, when an is, overwhelming there existed jurisdictions in the law of an obvi- trend other toward ously approach. more In circum- enlightened such stances, reasoned, court that trend could be taken into account as a when whether a determining factor join court’s decision that trend was predictable: state to time, however, same the fact that a “At the vast number clearly of have a jurisdictions abolished rule has so surely its purpose outlived relevant whether the particular of rule in case said abolition can be unexpected and reference to the law be indefensible as it then existed.” Id. perhaps most importantly,” according
“Finally,
“at
time
Supreme Court,
the United States
year
day
only
had
crime the
rule
[the defendant’s]
part
most tenuous
as
criminal law
foothold
The rule
exist
Tennessee.
did not
as
[s]tate
part
statutory
Tennessee’s
criminal
code. And while
Supreme
Court of Tennessee concluded that the
persisted
law,
pointedly
rule
at common
it also
observed that
the rule had never
once served
any prosecution
decision in
ground of
for murder
Indeed,
reported
in all the
cases,
Tennessee
[s]tate.
only
times,
the rule has been
three
mentioned
each
time in dicta.”
Id.
(Emphasis added.)
According to the
“cases
court,
hardly suggest
those
that the Tennessee
*214
[cjourt’s
[abolishing
‘unexpected
decision
the
was
rule]
process
and indefensible’ such that it offended the due
of fair
Bouie
principle
articulated in
and
warning
its
Id., 466.
the
progeny.”
rule was “a ‘substantive
Although
principle’ of the
of
common law Tennessee ...
it was
in
principle
a
name only, having never once been
in the
Thus,
enforced
Id.
from marked
[s]tate.”
“[f]ar
and unpredictable departure
prior precedent,
from
court’s decision was a routine exercise of
law
common
in
decisionmaking which the court
law
brought the
into
conformity with reason and common
It did
sense.
so
by
to rest an
and
laying
archaic
outdated rule that had
upon
never been relied
as a
of
ground
any
decision
reported
Id.,
Tennessee case.”36
467.
36According
majority,
holding
Miranda,
to the
court’s
this
in State
supra,
(Miranda II),
Rogers, provides
93
260 Conn.
which relied on
addi
support
adoption
tional
for its conclusion that
of the bom alive rule is not
unexpected
previously
and indefensible with
to
law.
reference
stated
At the
outset,
disagree
reliability
II,
holding
namely,
I
that the
of
of Miranda
application
Miranda,
that the
retroactive
of State
245
715
Conn.
A.2d
(Miranda
(1998)
I),
process,
seriously
680
did not offend due
was not
subsequently
undermined when this court
I. In
reversed Miranda
State v.
Miranda, supra,
III),
justices
(Miranda
foreseeable”; supra, 110; Miranda nevertheless inviolate. remains matter, present holding
Applying
foregoing
process
defendant’s due
concludes that the
majority
of the bom alive mle
recognition
its
claim fails because
with reference to
unexpected
was
and indefensible
prior
the defendant’s
expressed
been
the law that had
I
Rather,
applica-
believe
do not agree.
conduct.371
Additionally, disagree
court’s conclusion in Miranda II that
I
with this
clearly
application of
I
sanctioned
the then
Miranda
retroactive
Rogers. Specifically,
I
holding
in Miranda
had no
recent
conclusion
history,
statutory language
support
legislative
or
and the
in the relevant
hardly
extrajurisdictional precedent
upon,
analogous,
even if it was
relied
short,
represented
overwhelming
disagree
I
In
with the conclusion
an
trend.
Rogers,
II, purportedly
in reliance on
that retroactive
in Miranda
reached
ordinary
any
application
“employ[ing]
at
tools of
decision arrived
construction”; id.,
including
inapposite extrajuris-
statutory
106;
reference to
issue,
language
precedent at odds
statute at
neces-
dictional
with the
sarily
process.
Rogers
vain,
comports
I have
have
with due
searched
and
approach.
language sanctioning
found
such an unrestrained
As noted
no
dissenting
previously
concurring
opinion, when state and
in this
federal
conflict,
jurisprudence
jurisprudence
process
on federal due
the federal
controls.
applies
Rogers expansively
majority
holding of
mechani
short,
cally,
highly general
according
majority,
In
level.
at
inRogers
Supreme
States
Court
concluded that
retroac
because the United
any
precedent
process,
overruling
tive
not offend
did
due
retroactive
*215
overruling
prior
change
a direct
of
law
in the law that falls short of
case
Moreover,
majority reasons,
necessarily
the
is constitutional.
because the
extrajurisdictional
Supreme
of
United States
Court sanctioned consideration
circumstances, complete
extraju
precedent
in
reliance on
as a factor
certain
any
pronouncement
precedent,
of
in the absence
authoritative
risdictional
legislature,
entirely appropriate.
from
courts
Connecticut’s
or
reject
approach
overly cynical
I
and inconsistent with the individual-
this
ized,
given
inadequate
specific
that should be
to claims of
case
consideration
Furthermore,
interpretations
judicial
novel
of statutes that
notice.
did
precedent
previous
outright
of
involve
reversal
have been held
be unex-
pected
previously
reference to
law as
and indefensible with
stated
and,
process. Typically,
therefore, violative of
these cases involve the
due
obviously
expansion
statutory language to cover conduct not
within a
of
previously
coverage. See, e.g.,
be
statute’s reach or not
held to within its
supra,
Columbia,
(finding
process
Bouie v.
As was the
year
day
case
and a
rule at
Rogers,
issue in
the bom
appears
alive rule
nowhere
in Connecticut’s criminal statutes. Moreover, also simi-
larly
year
day
and a
rule
in
at issue
in
Rogers,
fact
so,
even more
the bom
virtually
alive rule has
no
presence
history
in the entire
reported
Connecticut
jurisprudence.38
if, prior
Even
case,
to this
it was a
principle
substantive
of the common law in Connecti-
cut,
principle
“it was a
in name only, having never once
been
(Emphasis added.) Id.,
th[is] [s]tate.”
enforced
466. As the United
Supreme
States
Court emphasized
Rogers,
presence
rule’s lack of
in our case law
perhaps weighs
importantly.” Id.,
“most
Finally,
464.
just
year
day
like the
and a
rule at issue in Rogers, the
bom
widely
alive rule is
as an
regarded
obsolete,
archaic and outmoded relic of
law,
the common
presently there is an
trend in
overwhelming
the vast
majority
jurisdictions
toward
it.39
abandoning
Given
foregoing
circumstances,
the United States
Supreme Court concluded that the Tennessee Supreme
Court’s abolition
the common-law rule was not unex-
pected and indefensible.40
majority,
however, turns
displayed
content),
denied,
manner in which movie was
rather than its
reh.
(1972).
406 U.S.
cases,
92 S. Ct.
B
the
I
a conviction of murder on
basis
recognize that
predi-
may
intent
form the
of the doctrine of transferred
capital felony statute.
for a conviction under our
cate
Conn.
In 265 Conn. explained we authority that “the weight supports proposition that the common-law doctrine of may transferred intent applied be when the defendant’s actual mental state equivalent conduct are and wrongful to the mental state and wrongful proved conduct that must be under the offense with which he is charged . . . .” (Emphasis case, In that added.) defendant had intended kill to an adult but, instead, year had killed a thirteen old child. Id., 40. the lone Although murder of an adult would not implicated have the death penalty, the resultant death of a person years under sixteen of age constituted a crime eligible penalty. the death See id., n.2; General Statutes (Rev. 2003) 53a-54b We con- (8). § cluded that the doctrine of transferred intent could support the application of the penalty death because the mental state and wrongful necessary conduct murder a equivalent child were to the defendant’s actual intent and actions as directed toward the intended adult victim. See State v. Higgins, supra, 59-60.
In present case, however, we are not concerned with the transfer of the intent to kill an child, adult to a but rather, with the transfer of the intent to Mil an adult to what, at the time of the act, defendant’s an unborn fetus, other an words, entity that was not “person” considered a under our law. Accordingly, the equivalence of mental state and wrongful conduct previously As I noted lacking. in this opinion, at the time of the conduct underlying convictions, defendant’s 42Furthermore, expressed fully by Zarella, for the reasons more Justice agree require temporal I that our murder statutes that there must be a nexus between a defendant’s criminal conduct and the status of the victim when injury the fatal is inflicted. *218 a crimi- was not of a fetus útero the death causing nal act. applied have in which courts even in cases
Indeed, to the death of intent of transferred the doctrine carried conduct fetus, underlying defendant’s the example, For criminally culpability. equivalent it cert. (Minn.), Merrill, 450 N.W.2d L. 2d 2633, 110 Ed. 931, 110 S. Ct. 496 U.S. denied, the Court held that Supreme the Minnesota 653 (1990), be could intent to kill a mother pregnant defendant’s charge for the death support a murder transferred however, the critical distinc case, In that of fetus. conduct, of the defendant’s that, at the time tion was independent act that an that recognized Minnesota first either of a fetus constituted resulted in death Consequently, Id. both degree murder.43 or second independent criminal crimes constituted the resultant culpability, substantially criminal involving acts similar doctrine trans application thereby justifying ferred intent. judicial majority acknowledged,
As has “[i]f unexpected criminal construction of a statute been by reference to the law which had indefensible issue, construc- expressed prior to the conduct in [the (Emphasis not retroactive effect.” given must be tion] Bouie added; quotation omitted.) internal marks I part 354. As discussed in Columbia, supra, U.S. dissenting opinion, A of on concurring I this prior expressed law as it was defen- basis our conduct, dant’s the defendant did have notice potential application of the warning fair regarding that majority compounds bom alive mle. The further of a problem application of lack of notice through intent, fiction, doctrine of transferred legal second requires degree premeditation. Com is that first murder difference (1988). pare (1988) § § with Minn. Stat. 609.2662 Minn. Stat. 609.2661 which, prior today, employed never had been in simi- lar assuming circumstances. Even that the majority, a legal matter, is correct in its determination that the two applied together present doctrines can be in the context, factual is so our juris- conclusion novel to prudence that application its retroactive violates the process due rights defendant’s to notice and fair warn- ing. repeating It is worth are partic- these concerns ularly present case, in the significant because the consequence majority’s unquestion- construction *219 ably expanded application society’s is an of our most punishment severe form of sentence of death. For —the reasons, the I with foregoing disagree the flawed con- majority clusion the respect of to this issue.
II
Even assuming
application
that retroactive
of the
newly recognized bom alive
to this
rule
case
constitu-
tionally proper, a conclusion with which I disagree, I
nevertheless would reverse the trial
judgment
court’s
the
convicting
defendant of murder for the “death” of
Antonia because the
presented
evidence
at trial was
insufficient to
that
establish
she was bom alive. In light
of
majority’s
conclusion that
the defendant had
potential application
sufficient notice of
of
the bom
alive rule and its
of
novel construction
the transferred
intent doctrine
despite
any prior
absence of
legisla-
adoption
prior
tive
of the
any
bom alive rule and
Con-
necticut case
either doctrine in
applying
fashion,
such
it is
deeply troubling
majority
ironic —and
—that
did
also has decided
the state,
hand,
that
on the other
not have
notice
expansion
of the com-
sufficient
mon-law definition of death established in State Guess,
It cannot expansion of as a result of our sonably foreseeable Guess, which of death common-law definition prior the defendant’s trial. months to several published Guess, clearly the state decision As result our expanded definition pursuant to our that, was on notice bom alive a conviction under the death, to sustain beyond a reason disprove have to rale, the state would birth, able doubt both that, the time of her Antonia at her irreversible cessation of circula had not suffered an respiratory systems and that she had suf tory activity. id. an irreversible cessation of brain See fered did disprove that Antonia Because the state failed activity, an cessation of brain not suffer irreversible was insufficient for the fact finder conclude evidence and, was “alive” at time of her birth Antonia prove was insufficient therefore, the evidence *220 under the bom alive rule. The “person” Antonia was retry that the state is to majority’s conclusion entitled in denial right the defendant results defendant’s v. United Burks See jeopardy. to be free from double States, Ct. L. Ed. 2d 1 1, 18, 98 2141, 57 (1978). 437 U.S. S. fully beyond
It is
the state was
on notice
question that
of Guess
impact
on
penalty
a death
foreseeable
bom
prosecution involving
opening
alive rule.
Guess leaves
no
paragraph
doubt as to what
appeal
“The
issue on
is whether
case was about:
sole
Code, may
Penal
be
‘death,’
the term
as used
determination,
according
made
construed to embrace
standards,
a person
has suf-
accepted
to
medical
fered an irreversible cessation of all brain functions.”
Guess, supra,
State majority
I with the character- my argument advocating ization of for unwarranted *221 penalizing apparently evening state, aimed at unexplained majority cursorily some score. What the 44Indeed, majority acknowledges, expanded two-prong as the itself the life, conversely, already death, applied of definition had been in the prior years People rule bom alive context six trial. defendant’s See supra, Flores, App. 4th 3 Cal. 210-11. nothing is rough justice” sort of seeking “a dismisses fairness. values of fundamental advancing less than the despite values to adhere to these majority purports The essence, in of, legal to a standard the defendant holding the bom court’s clairvoyance recognition as to this conduct years after the criminal alive rule some twelve penalty upholding the of a death issue, resulting at the fail- simultaneously excusing state’s while charge, clearly predict ure the direction of the law to constitutionally Guess. advocating If for signaled required fairness in both instances fundamental it.45 justice, to then I am in favor of rough amounts upon In burden is short, prosecution, in a criminal the prove all to present the state its case-in-chief elements of crimes. It is incumbent charged to instruct upon defendant, upon court, or the trial try By prove its case. to failing the state on how to definitively had not suffered an irreversible that Antonia “birth,” at the of her cessation brain function time ran risk that its would be insuffi- state evidence person purposes cient to show that Antonia was a remedy of the bom rule. The for the failure to alive present sufficient evidence at trial is a judgment States, Burks United acquittal on charges. all related supra, remanding 437 U.S. 18. In the case for new trial, majority improperly provides the state with a opportunity prove ostensibly to case, pro- second to its I rights. Instead, tect the defendant’s would order 45 majority’s attempt explain process due to violation mischarac my clairvoyance terizing argument concerning unavailing the need for My point, simply put, under the circumstances of this case. is that the majority separate has fairness in two denied defendant fundamental respects first, by charging knowledge wholly him unarticulated — interpretation and, therefore, apply of our murder statutes would novel require criminal, and, second, by failing make his to Antonia conduct as appreciate general determining death, state to that a standard for intended to variety apply contexts, pertinent in a would be to the life or death issue majority, argument, refuting at the heart of this case. The rather than this attempts through from distract it mischaracterization.
judgment acquittal respect charges arising to the from “death” of Antonia. majority’s recognition
In sum, newfound of the clearly rule, bom alive which is not embodied in our application murder statutes, and its of the doctrine of present transferred intent to the unexpected circumstances are and indefensible reference Connecti- cut law it existed at the time of the defendant’s Accordingly, application offenses. retroactive majority’s legal uphold conclusions the defendant’s process. convictions a violation due Furthermore, present because the state failed to sufficient evidence prove pursuant that Antonia bom “alive” definition of that term established v. Guess, supra, right Conn. 764, the defendant’s to be free jeopardy from double has also been violated. On the foregoing, respectfully basis of the I dissent.