State v. DeJesus

applied to the same set of different standards legal Since we have not been issues”). facts create different law information the administrative given enough adequately scope of the contribut- compare judge we must standards, factor and substantial factor ing application conclude that the commissioner’s board’s estoppel, doctrine of collateral as well as the subsequent decision, affirmance of the commissioner’s improper. were compensation review board is

The decision of reversed and the case is remanded to the board with commissioner, direction to reverse the decision of the remand the case to a commissioner for further to law. proceedings according opinion justices In this the other concurred.

STATE CONNECTICUT v. CARLOS DEJESUS OF

(SC 17710) (SC 17711) J., Norcott, Palmer, Vertefeuille, Sullivan, Rogers, Katz, Js. C. Zarella and Argued January officially August released Darcy McGraw, special public defender, for the appellant 17710, appellee Docket No. SC in Docket No. SC 17711 (defendant).

Marjorie Allen Dauster, senior assistant state’s attor- ney, whom, brief, with on the were P. Hardy, Gail attorney, Melchiorre, state’s and Vicki senior assistant attorney, appellee state’s for the in Docket No. SC in 17710, appellant Docket No. SC 17711 (state).

Opinion ROGERS, C. J. This case involves two separate certi appeals. First, appeals fied the state from judgment Appellate Court the conviction of the reversing defendant, Carlos DeJesus, for in the first kidnapping degree in violation of General Statutes 53a-92 (a) (2) § Appellate improperly that the (A),1claiming Court con cluded that the kidnapping unconstitutionally statute is void for vagueness.2 DeJesus, App. See State 91 Conn. 47, 83, 97-98, 880 Second, A.2d 910 the defendant (2005). appeals from the judgment Appellate Court his conviction of two counts of sexual assault affirming 1 provides part: “(a) person § General in A Statutes 53a-92 relevant is guilty kidnapping person degree in the first when he abducts another person (2) (A) and ... he restrains the with inflict abducted intent physical injury upon sexually him or violate or abuse him 2 granted petition appeal judg We the state’s for certification to from the Appellate following Appellate ment of the Court limited to the issue: “Did the properly person that no have conclude reasonable could known defining kidnapping the defendant’s conduct would violate the statute in the DeJesus, 912, 912-13, degree?” (2006). first A.2d Conn. Statutes 53a- in in violation of General degree the first in the first kidnapping count of and one (a) (l)3 that, (a) (2) (A), claiming of 53a-92 degree violation common law of evidence despite the codification of the court (code), of Evidence in the Connecticut Code the lib- authority to reconsider and reverse retains the miscon- uncharged which evidence of eral standard assault cases.4 duct is admitted sexual appeal governed that the state’s is We conclude recently Salamon, in State v. principles articulated we 509, 542, 949 A.2d 1092 wherein (2008), an kidnapping requires the crime of determined that victim’s liberation for a prevent longer intent “to time to a than that which period greater degree necessary to commit crime.” Accord- underlying] [an the defendant is entitled to a new trial on the ingly, wherein the degree the first charge kidnapping jury properly is instructed on the element of intent. we conclude respect appeal, With to the defendant’s despite adoption by the that, of the code appellate courts of this state Court, the rules of develop change retain the case-by-case adjudica- through evidence common-law tion. In of our recent clarification of the common light exception Randolph, in plan scheme or 328, Conn. 933 A.2d 1158 we further conclude (2007), under that evidence of misconduct admitted uncharged provides part: “(a) person in relevant A General Statutes 53a-70 person compels guilty degree (1) of sexual assault in the first when such person by against engage in sexual intercourse the use of force another person, against person of use of force such other or a third or the threat reasonably person person against such a third which causes such other or person physical injury person person . . . to such or a third to fear petition appeal granted for certification to from the We the defendant’s following judgment Appellate to the issue: “Does this Court limited court, any court, light in the Connecticut Code have the prior Evidence, sexual the rule that the introductions of to reconsider cases, is viewed under a of the defendant in sexual assault misconduct DeJesus, (2006). 903 A.2d 658 relaxed standard?” State admissibility ordinarily

the liberal standard of does not plan reflect the existence of a in the defendant’s genuine Nonetheless, public policy mind. because rea- strong sons continue to exist to admit evidence of uncharged liberally in sexual cases more than misconduct assault in will cases, standard, other we maintain the liberal exception prohibition but do so as a limited to the on in the admission of misconduct evidence uncharged prove sexual assault had a cases the defendant in propensity compulsive aberrant and crimi- engage part nal sexual behavior. reverse in Accordingly, we in part Appellate and affirm Court. judgment jury reasonably could have found the following facts, Appellate as summarized Court. “At all by a pertinent times, employed the defendant was supermarket manager. chain as customer service As part employment of his duties, defendant was responsible for individuals to work at the store. hiring In year victim,5 he hired the nineteen old August, eventually and she assumed the duties of a She bagger. special had attended education classes while high difficulty school and had new tasks. Other wit- learning nesses, including police officer, the victim’s father and testified that the victim had mental abilities. also limited supervisor The victim’s immediate was someone other than but defendant defendant, managed often special the entire store and was aware of the victim’s needs. sexually

“The defendant assaulted the victim on two separate occasions 2000. The first assault occurred when the defendant instructed the victim to go payroll room, upper which is located level of the store, chair, eyes open to sit in a to close her and to privacy policy protecting In accordance with our interests identify assault, through victims of sexual we decline to the victim or others identity may be ascertained. See Statutes 54-86e. whom the victim’s General the victim to her mouth. The defendant then ordered defen- so, his After she had done finger.’ ‘suck [on] perform oral sex on him. dant forced her to by the defen- “The second sexual assault committed upper occurred in the level of dant on the victim also to a room near telling go the store. After the victim to proceeded entered and to office, his the defendant and underwear and had her pants remove the victim’s victim told the defendant that she sit on desk. The that, protests want do but he her ignored did not to penetrated The defendant the victim’s remained silent. penis, with his her a deal of discom- vagina causing great away him, replace fort. was able move from her She say not clothes and leave the room. The defendant did but looked as she left.6 anything angry subsequently employment “The victim ended her at supermarket shop particular but continued to at that family. point location with her At some approached defendant the victim and her father while they father, were In with her shopping. speaking victim had been a ‘good defendant indicated employ- her her worker’ and that he wanted to resume supermarket. father, ment at the The victim’s who at sexually the defendant had that time was unaware that abused his her to return to work. daughter, encouraged an orientation required She and was to attend agreed employment. prior resuming session her spoke victim with June, 2001, “Toward the end of supermarket. again the defendant at the He instructed in the store’s empty her to wait in an room located and kissed upper level. The defendant entered the room charged the defendant with three and four of the information “Counts kidnapping stemming conduct that occurred in sexual assault and from his jury on that it could convict defendant 2000. The court instructed unanimously required agree the basis of either incident but that it was DeJesus, App. supra, 91 Conn. 51 n.2. on the same incident.” State v.

the victim on the mouth. He instructed her to sit on a shirt, chair and reached inside of her his hand placing proceeded pants on her stomach. He to remove her underwear, locked his hands behind head, her straddled sitting perform chair she was on and forced her to oral him. That minutes, sex on lasted for few after penetrated which the defendant her with his vagina finger. reported police

“The victim this incident to the department, which commenced an The investigation. defendant, police station, initially an interview at the any having denied sexual contact with the victim but any activity then recanted and stated sexual DeJesus, between them was consensual.” State supra, App. Thereafter, 50-52. the defendant was with two counts of sexual in the first charged assault degree violation of 53a-70 and two counts (a) (1), in the first in violation of 53a- kidnapping degree 92 (a) (2) (A). jury trial, the defendant’s state

During sought “[t]he testimony to introduce into aN, young evidence woman had at the who worked same store as the victim sexually and who that she also had been alleged by proffered assaulted the defendant. The state N’stesti- mony on the issues of intent and a common scheme or plan. objected The grounds defendant on the that the testimony probative was not relevant and that its value prejudicial impact. did not its outweigh presence “The court held a outside of the hearing jury which N testified and was cross- during examined defense counsel. At the conclusion of her testimony by counsel, and after listening argument permit testify the court ruled that it would N to before jury. court that it would give limiting stated testimony instruction at the of N’s and dur- conclusion jury. ing charge hired jury. She had been

“N then testified before as a cashier February, the defendant a result education classes as special N attended bagger. the defendant disability of her and told learning store. about in a crowded working she was concerned paid ‘a lot of attention’ N, the defendant According made N feel uncom- to her. The excessive attention fortable. upper was level April, 2000,

“In the defendant on name store, get tag and N asked him to her new and shirt after her shift had concluded. The defendant and, him a dark after room, her to follow into signaled arrived, proceeded she he to kiss and to touch her. He arms, then her turned her around and grabbed N pressed penis his into her. The defendant restrained so that she could not move while he rubbed against point, stopped her. At some the defendant and N turned around. masturbating She observed the defendant penis. declined his invitation to touch his She recalled episode, that the entire from the time she entered the left, approximately dark room until the defendant took testimony, ten minutes. N’s the court Following gave jury Id., instruction.” 52-53. limiting jury guilty found the defendant of all of the trial charged, offenses with which he was and the court jury’s with the ver- judgment rendered accordance subsequently trial sentenced the defen- dict. The court twenty imprisonment dant to a total effective term of suspended years, after and ten years, execution sixteen years special probation. Id., 52. appealed judgment

The defendant from the Appellate Court, alia, inter claiming, trial court to the unconstitutionally (a) (2) (A) vague that: 53a-92 (1) § which consisted applied conduct, as to the defendant’s the victim the corarse of a sexual restraining during only;7 id., 83; improperly the trial court (2) assault of the defendant’s sexual uncharged admitted evidence N the defendant’s intent misconduct with to establish respect plan. Id., and common scheme or 52-65. With Court con- claim, Appellate to the defendant’s first was not unconstitution- (a) (2) (A) cluded that 53a-92 ally applied June, as to the defendant’s conduct in vague “restraint 2001, because the defendant’s [of victim] part an of the crime of was neither minor nor essential Id., Appellate assault in the first 96. The degree.” sexual unconstitutionally Court concluded that the statute was applied to the second sexual assault vague the defendant had restrained the vic- however, because only necessary accomplish tim to the extent the crime improperly (1) trial had: denied The defendant also claimed that the court process by providing jury him due of law “the with an incorrect statement plan exception charge improperly during its and of the common scheme or [allowing] and the state to refer to N and the victim as ‘borderline retarded’ ‘intellectually DeJesus, supra, App. 66-66; (2) v. 91 Conn. limited’ State records “refused to conduct an in camera review of the victim’s confidential any they rape to determine if contained evidence con from crisis center ability perceive, cerning capacity to recall and to her testimonial and issue”; id., 70; (3) at denied the defendant’s motion relate the events police suppress made to the because these statements certain statements interrogation during and the defen had been made the course of custodial Id., 77-83; rights. see Miranda dant had not been informed of his Miranda Arizona, 436, 444, (1966). 16 L. Ed. 2d 694 The 384 U.S. 86 S. Ct. rejected claims, concluding (1) Appellate these that: each of unpreserved magni instructional claim was not of constitutional defendant’s and, therefore, prevail prong the defendant could not under second tude 233, 239-40, (1989); Golding, 567 A.2d 823 of State v. DeJesus, supra, 65-70; (2) the trial court had not abused its discretion request denying review of the victim’s the defendant’s for an camera “through the defendant failed to establish confidential records because the records, testimony persons knowledge basis with a factual of those that, would reveal the court could conclude that the records from which time, capacity as to testimonial was affected so at the relevant the victim’s id., 75; properly inquiry”; (3) the trial court denied warrant further suppression . . . the defen motion because “as a matter of law defendant’s police having ... at the station cannot be construed dant’s interview any Id., Appellate point.” 81. The Court’s resolution been custodial at appeal. present is not at issue in the these claims Id., In of the minimal light of sexual assault.8 96-97. imposed victim, Appel- amount restraint on the kidnapping late Court concluded that the defendant’s information, which conviction on count four was “absurd and stemmed from his conduct Id., The Court reversed Appellate unconscionable.” 97. his the case to conviction on that count and remanded judgment the trial court with direction to render of not only. Id., as to that count 98. guilty respect With to the claim, defendant’s second Appellate Court concluded properly trial court had admitted evidence of the defendant’s uncharged sexual misconduct with N under the intent and common plan scheme or exceptions prohibition on the uncharged admission of misconduct evidence because: (1) charged crimes and uncharged misconduct had occurred within the same period; id., 57, limited time 60; (2) charged crimes and misconduct uncharged had perpetrated been in a similar manner, that the defendant had “used supervisory authority his to lure 8 Appellate that, charged Court noted four of the information “[c]ount kidnapping degree stemming the defendant with in the first from events concerning that occurred in 2000. There was evidence adduced at trial two kidnappings during period. sexual assaults two that occurred this time jury . . . corut instructed the that it could convict on count [T]he [trial] long agreed kidnapping. course, four as itas on the same Of the defendant clarify general verdict, and, therefore, specifically is unable to a it is unknown respect which 2000 events formed the basis of the conviction with to count Accordingly, wrongly four. . . . the defendant would be if convicted he evidence, was convicted under an alternative basis for which there was no and a conviction cannot stand unless both of the alternate bases for the conviction are constitutional. ... A conviction must set aside if be one of grounds supporting the alternate the verdict is unconstitutional or if one is sufficiently by supported (Citations omitted; not the evidence.” internal quotation omitted.) DeJesus, supra, App. marks State v. 91 Conn. 95 n.18. light Appellate (a) (2) (A) In Court’s conclusion that 53a-92 is unconstitutionally vague applied during as to the defendant’s conduct the 2000, second sexual in it assault did not determine “whether the facts concerning support kidnapping the first in assault 2000 could also a convic- Id., tion.” 98. upper on the isolated, empty women into an room

the they pursuant were in the store level of the store while 61; both victims employment duties”; id., (3) to their abil- appearance and limited mental age, were similar Appel- ity. Id., 57, urged 60. the defendant Although to reconsider the liberal rule of admission late Court misconduct under the uncharged for evidence of sexual exception in sexual assault plan common scheme or Merriam, see State 617, 661-64, v. 264 Conn. cases; Kulmac, State v. 59-63, 230 Conn. (2003); A.2d 895 Court declined to Appellate 644 A.2d 887 (1994); appellate court, an so, do intermediate noting “[a]s by precedent set could reconsider revise [it not] DeJesus, supra, Supreme Court.” State 91 Conn. [the] certified n.5; id., see also 58 n.4. These App. 60 appeals followed.

I first address the state’s claim that a reasonable We person restraining during would know that victim violates 53a-92 (a) (2) (A) course of a sexual assault improperly con- and, therefore, Appellate Court unconstitutionally statute is kidnapping cluded that the to the second sexual assault 2000. applied vague reversed Appellate properly that the We conclude conviction, reasoning but our differs the defendant’s that the Appellate that of Court. We conclude from statutory principles appeal governed state’s Salamon, recently articulated this court we determined that the supra, wherein prevent an intent “to requires crime of kidnapping period for a of time or to longer victim’s liberation necessary to commit than that which is greater degree we conclude that Accordingly, crime.” underlying] [an trial on the charge defendant is entitled to a new jury prop- in the first wherein kidnapping degree the element of intent. erly is instructed on scope of analysis with the nature and our begin We claims that the appeal. The state the state’s claim on kidnap- that the concluded Appellate improperly to a applied vagueness is void for statute ping incidental to the limited in duration and restraint that is state contends Specifically, assault. crime of sexual of 53a-92 (a) Court’s construction Appellate that the long-standing with this state’s is inconsistent (2) (A) does statute jurisprudence holding kidnapping . . . any requirement[s] minimal “time for impose not aspor- . . . requirement for any nor distance restraint, Chetcuti, 377 A.2d tation”; State 165, 170, v. 173 Conn. encompasses “integral conduct that is (1977); underly- separate of a incidental” to the commission or State v. quotation omitted.) marks (Internal crime. ing In Sala- A.2d 767 Vass, 604, 614, (1983). 191 Conn. mon, however, we recently reconsidered and reversed that the crime jurisprudence holding long-standing our restraints that are neces- encompasses of kidnapping separate of a sary incidental to the commission Luurtsema, crime; see, e.g., State v. underlying 201-203, concluding 811 A.2d 223 (2002); Conn. broadly replacing single, legislature, that “[o]ur with a scheme provision gradated worded kidnapping from unlawful restraints kidnappings that distinguishes prevent an a victim’s libera- presence intent to scope from the of the more tion, intended to exclude accompanying and its kidnapping serious crime or movements penalties severe those confinements necessary for merely incidental to and a victim that are that victim.” crime against of another commission Salamon, supra, 542. We therefore 287 Conn. statu- in accordance with the the state’s claim resolve in Salamon.9 tory principles elucidated present applies in Salamon because the case here The rule announced kidnap pending articulated a new construction was when this court Waterbury, 1, 10-11, 11 n.10, Marone ping statutes in Salamon. presumption long-standing recognizing (1998) (citing cases 707 A.2d 725 retroactively pending cases). applies that rule enunciated case Salamon, prior interpretation

In we reconsidered our of the kidnapping statutes, General Statutes 53a-91 et § Salamon seq. Id., 528. The female victim in had been by approached assaulted the defendant when he victim from behind at a train late station Stamford Id., at 515. As the victim was night. ascending flight stairs, the defendant her the back of the grabbed neck, causing fall, her to and held her down her hair attempted when get up. she When the victim began scream, punched defendant her the mouth and attempted fingers to insert his into her throat. Id. The eventually herself, victim freed and the defendant fled. Ultimately, the defendant was with charged kidnapping in the second in violation degree of General Statutes unlawful 53a-94, restraint the first in viola- degree § injury tion of General Statutes 53a-95, and risk of a child in (Rev. violation of General Statutes to 2001) Id., 512-13, 53-21 At (a) (1). trial, 516. the defendant jury requested that, jury] instruction “if found [the that the restraint involved in the alleged kidnapping victim, was incidental to the defendant’s assault of the required then it was to find the guilty defendant not Id., in the second kidnapping degree.” 516. The trial court to give declined that instruction.

In Salamon, request, at the defendant’s we reexam- interpretation ined our long-standing of the kidnapping encompass merely statutes to even restraints that were crime, incidental to the commission of another such as robbery. assault or Id., 528-48. the state relied Although acquies- on the doctrines of stare decisis and legislative support cence in of its contention that we should not prior persuaded, revisit our we were after holdings, careful doctrines, [they consideration of both “that sufficiently not weighty to bar reconsideration were] prior precedent of our stat- interpreting kidnapping Id., analysis, utes.” 519. In our we that “all recognized prior application of our cases relied on a literal [had] and con- statutes,” kidnapping our language to the literal to adhere we were not bound cluded that would lead to when it application language Id., results.” or bizarre anomalous “unconscionable, 1977, when this that, noted “since Moreover, we 524. conviction kidnapping a claim that a rejected court first a restraint involving conduct be based on could not of another merely incidental to the commission that is reached many other states have the courts of crime, kidnapping their contrary interpreting conclusion in a determined that result, As a we Id., statutes.” 526-27. undertake “an Salamon was appropriate an case to statutes analysis kidnapping of whether our extensive given that we have warrant the broad construction Id., them.” 524. 1977, our Salamon revealed that since inquiry

Our offense consistently has concluded that the case law of intent requires proof of the element kidnapping the victim was require proof not that only, and “does of time or moved any period confined for minimum were any Id., holdings minimum distance.” 532. Our statutory defi application literal premised on the “ “ ”11 ”10 ‘abduct,’ ‘restrain,’ terms nitions of the requirement. a time or distance neither of which contain application, we consis 531-32. Under this literal Id., “ ” (1) term as “to § Statutes 53a-91 defines the ‘[Restrain’ General intentionally unlawfully person’s in such a manner a movements restrict liberty by place substantially moving him one with his from as to interfere by place another, confining restriction him either in the where the or moved, place been without consent. or in a to which he has commences means, to, (A) deception limited ‘without consent’ but is not As used herein victim, whatever, including acquiescence (B) any if he is means parent, years incompetent person and the an less than sixteen old or child custody person having guardian lawful control or or institution or other acquiesced in the movement or confinement.” him has not ” (2) as “to restrain defines the term" § Statutes 53a-91 ‘[a]bductf General (A) secreting prevent or person either his liberation with intent to found, using likely (B) place or holding not to be him in a where he is threatening physical force or intimidation.” to use tently may held that “a defendant be convicted of kid upon proof that he restrained a victim when napping that restraint accompanied requisite intent.” statutory Id., 534. Closer examination of the language in Salamon, however, “previous revealed that decisions . . . explored parameters intent, not of that [had] particular, prevent how the ‘intent to [a victim’s] liberation’; General Statutes 53a-91 that (2); is, the necessary intent to establish an abduction, differs from substantially the intent ‘to interfere with [a victim’s] liberty’; is, General Statutes 53a-91 the intent (1); necessary to establish a restraint. an Certainly, when substantially individual intends to interfere with person’s liberty, keep another he also intends to person point from . . . at which an escaping [but] liberty intended interference with crosses the line to prevention become an intended of liberation is not Salamon, supra, clear.” State entirely 287 Conn. 534. Salamon, “point” particularly As we stated in is significant “in a case not of a involving secreting place unlikely victim in a that he or she is to be found . . . .” cases, only Id. In such “it is the intent element qua that differentiates an abduction —the sine non the crime of a mere unlawful kidnapping —from restraint, relatively and the minor penalties attendant to the latter offense.” Id. by 53a-91,

To resolve the created we ambiguity to “the law history turned common kidnapping, and circumstances surrounding promulgation of our kidnapping policy objectives current statutes and the statutes, those we . . . animating [and] conclude[d] Our a following: legislature, replacing single, broadly a kidnapping provision gradated worded with scheme that from unlawful distinguishes kidnappings presence prevent restraints of an intent a scope victim’s intended to exclude from liberation, kidnapping of the more serious crime of and its accom- move- or penalties those confinements panying severe merely incidental a victim that are ments of against of another crime necessary for the commission a otherwise, kidnapping to commit that victim. Stated must crime, a defendant conjunction with another longer liberation for a prevent the victim’s intend to than that which to a period greater degree of time or 542. We necessary Id., commit the other crime.” is not refute the holding long-stand- clarified that our did or period degree minimum of restraint rule that no ing necessary kidnapping, is to establish of movement or movement that, but established when confinement merely crime, to the commission of another is incidental or principle is whether the guiding [confinement “[t]he substantive part was so much a of another movement] not have been crime that the substantive crime could quota- without such acts . . . .” (Internal committed omitted.) Id., tion marks 546.12 of the victim “Whether the movement confinement merely necessary for another crime incidental to and depend particular will on the facts and circumstances of reasonably Consequently, each case. when the evidence merely supports that the restraint was not finding other, separate incidental to the commission of some must be made crime, the ultimate factual determination purposes that determina- jury. making For the to consider the vari- tion, jury should be instructed nature and duration factors, relevant including ous by the defen- of the victim’s movement or confinement occurred whether that movement or confinement dant, offense; whether separate commission of the during the separate in the nature of the the restraint was inherent the victim from prevented whether the restraint offense, Salamon, supra, n.21, we also noted that In 287 Conn. 532 predicated kidnapping challenge on such miniscule to a conviction “[a] viable on constitutional duration of confinement remains movement or vagueness grounds doctrine.” under the [void for] assistance, whether the restraint reduced

summoning the defendant’s detection, risk of and whether restraint created a significant danger or increased the independent victim’s risk of harm posed that separate Id., offense.” 547-48.

Applying Salamon, standard to the facts of we juror concluded “a reasonably that could find that the merely defendant’s restraint of the victim was not inci- dental to his assault of the victim. The victim testified defendant, her, forcibly that the after accosting held her down for five minutes or more. the defendant Although punched the victim once fingers and shoved his into mouth, very her that conduct was brief contrast the extended duration of the defendant’s restraint of the victim. In light evidence, moreover, juror a reasonably could find pulled the defendant victim to the ground primarily purpose for the her, and that he restraining put struck her and his fin- gers her mouth in an effort to subdue her and to prevent her from for screaming help so that she could escape. not In such circumstances, say we cannot necessarily the defendant’s restraint of the victim was incidental to his assault of the victim. Whether the defendant’s conduct constituted a there- kidnapping, fore, question by prop- factual for determination erly jury.” Id., instructed 549-50. Accordingly, we reversed the defendant’s kidnapping conviction and jury remanded the case for a new trial wherein the properly is instructed on the element Id., of intent. 550.

Indeed, our research has revealed appro- that the priate remedy impropriety for the instructional identi- fied Salamon is to reverse the defendant’s kidnapping conviction and to remand the case to the trial court for a new trial. It is well established that instructional impropriety “trial constitutes error” for which the appropriate remedy trial, is a new rather than a judg- acquittal. Supreme ment of As the United States

435 States, 437 U.S. 1, 15, 98 v. United in Burks observed for trial “reversal L. Ed. 2d 1 (1978), 57 S. Ct. insufficiency, evidentiary from error, distinguished that the the effect a decision to not constitute does it such, As its case. prove has failed to government or innocence guilt respect with implies nothing that a determination Rather, it is the defendant. of judicial process through has been convicted defendant respect, e.g., in some fundamental which is defective evidence, incorrect rejection or receipt incorrect When this misconduct. instructions, prosecutorial obtaining in has a interest occurs, strong the accused error, just as of his free from readjudication guilt a fair that the society insuring a valid concern for maintains punished.” are guilty Appeals the United States Court

The decision of Ellyson, Circuit in United States v. for the Fourth point. on this is instructive Cir. also (4th 2003), F.3d 522 Ellyson, was tried and convicted In the defendant of 18 U.S.C. in violation pornography child possessing prohibited which (2002), (5) (B) (b) (2) 2252A (a) to be of a “appears an image possession . . . .”18 sexually explicit conduct minor engaging Ellyson, United States 2256 (8) (B) (2000); U.S.C. § conviction, the defendant’s supra, Following 525. its decision Ash- Supreme Court issued United States Speech Coalition, U.S. S. Ct. v. Free croft wherein it determined (2002), L. Ed. 2d 403 1389, 152 engage freedom to “abridges the (8) (B) therefore, and, speech” of lawful a substantial amount Id., light 256. In “is and unconstitutional.” overbroad Coalition, Fourth Circuit Court Speech of Free because the defendant’s conviction Appeals vacated the definition improperly on been instructed jury had Ellyson, supra, United States pornography. of child not have the court did the district course, (“Of time it issued Speech Coalition at the benefit of Free 436

its jury. instructions to the Indeed, trial, at the time of the court’s instructions were consistent with circuit precedent a rejecting constitutional challenge to the ‘appears to be’ language (8) Elly In (B)].”). §[of son, the court noted that conclusion does not “[t]his end the matter because we must determine whether government may retry or whether [the defendant] he is entitled to an outright reversal and judgment of acquittal.” Id., rejected 531-32. The court also the defen dant’s claim that he was acquit entitled to a of judgment tal because a new trial would violate the double jeopardy clause of the federal constitution. The court that, reasoned circuit law at the trial, time of “[u]nder the government presented more than sufficient evi support dence to a guilty verdict against defen [the Speech Prior to Free Coalition, the government dant]. satisfy could its burden showing that defen [the child pornography ‘appealed] to be of a minor’ dant’s] under (8) (B), unnecessary it was for the government offer evidence that a depicted minor in a given was an actual image computer- child and not a generated image.” Id., “Thus, 532. jeopardy the double concerns preclude that the government from having second opportunity to build a case a defendant against when it failed to do so the present first time are not Any here. insufficiency proof was caused the sub sequent in the change Speech law under Free Coalition, not the government’s failure Id., to muster evidence.” 533; see also United v. Pearl, States 324 F.3d 1210, 1214 (10th Cir.) (“[b]ecause the government cannot be held responsible for failing to muster evidence sufficient to satisfy a standard which did not exist [actual minors] at trial, the time of and because this is trial error rather pure insufficiency than evidence, [the defendant] may be retried without violating jeopardy” double quotation denied, marks cert. omitted]), [internal U.S. 934, 123 S. Ct. 156 L. Ed. 2d 616 (2003). Sanseverino, in State

We that recognize we reversed the defen- 608, 625, (2008), 949 A.2d first degree in the kidnapping dant’s conviction with court direction remanded the case trial “no acquittal, judgment reasoning to render a convicted defendant jury reasonable could have Salamon.” light holding our kidnapping we explicitly Furthermore, acknowledge we was rejected dissent’s assertion that the defendant jury, properly to a trial before a instructed entitled new state acquittal, rather than a because the judgment jury case “had no when its to the knowledge presenting necessary was to the defendant that it [establish a period had to restrain victim for longer intended necessary was to degree of time or to a than greater (Zarella, J., accomplish underlying Id., 654 crime].’’ however, analysis, In of the dissenting). light foregoing persuaded we are that our conclusion there should Sanseverino have been was judgment acquittal remedy in incorrect, proper and that that case a new Accordingly, should have been trial.13 our conclu- sion in Sanseverino hereby is overruled.14 note, decision, for We as of the date of release of this a motion pending was reconsideration of our decision Sanseverino before will in due court. We consider the merits of that motion course. that, by overruling determination in Sansever dissent contends our remedy appropriate judgment acquittal, was than a ino that rather disagree. trial, We new we the doctrine of stare decisis. Stare decisis violate Experience an end . . . and often does demonstrate “is not in itself. can justice rule, sound, serve better. that a modification to once believed needs genius growth flexibility capacity of the law is its for . . . The and common relevance, adaptation. Indeed, . . law to have current courts and . is [i]f capacity change to a rule of law when reason so must have exert the many requires. recognized . . . court . . . times that there has [Thus] [t]his omitted; exceptions (Citations internal are to the rule of stare decisis.” 633, 985, 691, quotation omitted.) Skakel, State v. 276 Conn. 888 A.2d marks denied, 1030, light 578, (2006). 127 S. Ct. L. Ed. 2d 428 In cert. 549 U.S. States, inescapable persuasive logic reasoning v. of Burks United supra, 532-33, supra, Ellyson, v. 437 U.S. United States F.3d compelled Pearl, supra, conclude 324 F.3d we are United States wrongly that Sanseverino was decided. Indeed, appears the nature of the defendant’s the dissent to concede that insufficiency truly evidence was not claim Sanseverino one present

Tinning case, jury we note that the was not that, instructed to find the defendant guilty the crime of in the kidnapping first it must find degree, that the defendant had intended prevent “to the victim’s liberation for a period of time or longer to a greater degree than that which necessary to commit [the Salamon, supra, crime.” underlying] 542. The defendant therefore could have been convicted on the basis of under Salamon, does which, conduct not violate the kidnapping statute. Accordingly, we con- clude, on this alternate ground, Appellate that the properly reversed the defendant’s kidnap- conviction of ping in the first degree.15

We next address the appropriate remedy. The defen- dant does not challenge sufficiency of the evidence support his conviction kidnapping under the law as it Salamon. prior existed Indeed, such a claim would under State v. Luurtsema, because, fail supra, 262 201-203, Conn. the defendant’s restraint of the victim support sufficient to a kidnapping conviction as long accompanied by as it is requisite the intent, even if such restraint is “integral incidental to the crime of sexual . . assault . .” (Internal quotation marks Id., omitted.) because, notes, jeopardy as the dissent the double clause of the federal precluded remanding constitution would not have this court from that case Rather, applied for insufficiency a new trial. the dissent claims that “we [the jurisprudential of the framework in . . . evidence] Sanseverino due more to prevail concerns” because “it was clear that the state could not on retrial agree that, under the new rule set forth in Salamon." We with the dissent given Sanseverino, unlikely the facts adduced at trial in it was that the state proffer would have been able to sufficient additional evidence on retrial to satisfy Nonetheless, court, the Salamon rule. it is not the function of this appellate tribunal, deprive opportunity. as an the state of that See State Lawrence, 141, 156, (2007) (function appellate 282 Conn. 920 A.2d 236 review, retry, proceedings tribunal is “to and not to of the trial court” quotation omitted]). marks [internal 15 light statutory principles recently by In articulated this court in Salamon, Appellate we need not address the state’s claim that the Court improperly kidnapping vagueness concluded that the statute is void for as applied necessary to restraints that are for or incidental to the commission separate underlying DeJesus, supra, App. of a crime. See State 97. is not proper inquiry id., (“[T]he also 202-203 202; see was incidental kidnapping whether [other accomplished restraint was offenses], but whether the as requisite kidnapping, to constitute with the intent required for other as the state of mind well [the kidnapping Whether the essential elements of offenses]. beyond question doubt is a a reasonable proved are analysis, simply . . is not jury. therefore, . for the two may A be transactional. defendant convicted long the same conduct as crimes that derive from beyond doubt, prove, state able to reasonable [is] essential of each all of the elements crime.” [Internal any insuffi- quotation Therefore, marks omitted.]). ciency proof subsequent change was caused under rather than Salamon, government’s in the law failure to muster evidence. Accordingly, sufficient remedy proper jury properly is a new trial wherein the is instructed on the element of intent in accordance with the dictates of Salamon.

n claim this corut We next address the defendant’s has the reconsider the liberal standard for the admission of sexual evi- uncharged misconduct despite adoption in sexual dence assault cases codifying the code the common-law rules of evidence. The defendant be that the liberal standard of admission should claims inadequate to overruled because it is demonstrate plan mind, of a in the defendant’s genuine existence secretive, of a sexual nature are neither more crimes nor than crimes of a nonsexual pathological aberrant adoption the agree nature. We with the defendant inherent of the code did not divest this court of its adjudicative develop common-law case-by-case basis. the rules evidence on change of that, in of light further with the defendant agree We scope nature and recent clarification of the our plan exception common scheme or in State v. Randolph, supra, Conn. evidence of miscon- uncharged duct admitted under the libera! ordinarily standard does not reflect the existence of a genuine plan in the defen- dant’s mind. Nonetheless, given highly secretive, aberrant and frequently compulsive nature of sex crimes, we conclude that the admission of uncharged misconduct evidence under the liberal standard is war- and, ranted therefore, adopt we this standard as a lim- exception ited to 4-5 (a) code, prohibits which “[ejvidence admission of crimes, of other wrongs or acts of a person prove ... the bad character or criminal tendencies of person.”

Before addressing the merits of the claim, defendant’s we review our jurisprudence regarding admissibility evidence uncharged misconduct. “As a general rule, prior evidence of misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is . accused. . . Such evidence cannot be used to suggest that the defendant has a bad propensity character or a for criminal behavior. . . . On the other hand, evidence of crimes so connected principal with the crime circumstance, motive, design, or peculiarity, innate that the commission of the collateral directly prove crime tends the commis- principal sion of the crime, is admissible. The rules of policy application have no whatever to any evidence of crime which directly prove tends to that the accused guilty specific offense for which he is on trial. . .. We have developed a two part test to determine admissibility of such evidence. First, the evidence must be relevant and material to at least one of the circumstances encompassed by exceptions. . . . Second, probative value of the evidence must out- weigh prejudicial its . effect. . . Because of the diffi- culties inherent in this process, the trial balancing only court’s decision will be reversed abuse of whe[n] injustice appears an manifest or discretion whe[n] there- court, ... On review done. to have been in given should be presumption every reasonable fore, . . . ruling. trial court’s favor of the admissibility of evidence which the “The standard will generally is measured misconduct uncharged which the evi- purpose for two factors: the depend on with which type of crime offered, and the dence is example, when a For charged. has been the defendant crime and evidence with a sex charged defendant is to establish is offered sexual misconduct uncharged plan scheme or defendant had a common that the admissibility proffered crimes, the in sex engage a liberal standard.” pursuant evidence is evaluated omitted.) marks quotation internal omitted; (Citations Thus, 284 Conn. 340-41. Randolph, supra, State sex offenses prior sexual assault cases “[e]vidence wit- persons prosecuting other than the committed with plan or design show a common ness is admissible to too remote in offenses are not prior (1) [when] charged; (3) to the offense time; are similar (2) prosecuting upon persons similar to are committed quotation omitted.) marks witness.” (Internal A.2d 628 Jacobson, 618, 631, (2007). . . how- crimes . “In that do not involve sex cases to determine a more standard ever, apply stringent we is admissi- misconduct uncharged evidence of whether State v. plan.” a common scheme ble to establish misconduct Uncharged 284 Conn. 341. Randolph, supra, “only if cases in nonsex crime is admissible evidence crimes that both permissive supports it inference goal to an overall were related defendant’s marks quotation added; internal (Emphasis mind.” Id., 356. omitted.) first to the mind, we turn background

With this codified the code of whether predicate question common-law foregoing admissibility standards of for uncharged misconduct evidence in sex crime versus nonsex proper crime cases. The construction of the presents code question us with a of law over which our Whitford, State plenary. See, review is v. e.g., 260 Conn. 610, 640, 799 A.2d 1034 In (2002). construing code, the apply we well established principles statutory inter- pretation. See id. We first consider the text and accom- commentary panying of the section of the code at issue, and its relationship to other “If, sections.16 after examin- such text and ing such considering relationship, the of such meaning plain text is and unambiguous and does yield not absurd results, or unworkable extratextual evidence of the of the meaning shall not be [code] considered.” (Internal quotation marks omitted.) F.M., John 528, 546, 285 Conn. 940 A.2d (2008). 755 (a)

Subsection 4-5 of the provides code crimes, person other or acts of a wrongs “[e]vidence is inadmissible to prove the bad character or criminal tendencies of that person.” Subsection (b) 4-5 of provides, the code however, that of other “[e]vidence crimes, -wrongs person or acts of a is admissible for purposes specified other than those in subsection (a), 16 previously observed, properly As we have the code “cannot be under accompanying [cjommentary. [cjommen stood without reference to the tary provides necessary [cjode, context for the text of the and the text [cjode expresses general of the in terms the rules of evidence that the cases [cjommentary Additionally, [¡Judges cited in the have established. . . . they step formally adopted [cjode. took an unusual when Unlike other situations, [jjudges, rules, voting guided in which the when on are but formally adopt commentary [rjules [cjommittee do not submitted normally accompanies proposed changes, adopting [cjode rule formally [jjudges adopted [cjommentary as well. This is the first [jjudges Thus, [cjode together time that the have done so. must be read [cjommentary fully properly with its in order for it to be understood.” (Citation omitted; quotation omitted.) Pierre, internal marks State v. 42, 60, 474, denied, 1197, Conn. 890 A.2d cert. 547 U.S. 126 S. Ct. (2006); Daley McClintock, 399, 408, L. Ed. 2d 904 see also Borden, (2004); (Very) A.2d 972 D. “The New Code of Evidence: A Brief Overview,” (1999). Introduction and 73 Conn. B.J. identity, malice, motive, com- prove intent, such as to plan mon accident, of mistake or scheme, absence activity, or an element system of criminal knowledge, testi- prosecution orto corroborate crucial crime, of the The code does not articulate mony.” added.) (Emphasis standards to be used ascer- particular standard or pro- misconduct evidence is uncharged whether taining plan. of a common scheme or bative of the existence conjunction construed, however, must be Section 4-5 code, provides 1-2 which that one (a) with § adopt Connecticut purposes [cjode [is] “[t]he as rules of case law the rules of evidence regarding D., . . . .” Cf. In re William 284 Conn. 305, 313, court always pre- 1147 (2007) (“[T]he legislature 933 A.2d a harmonious and consistent sumed to have created statutory construc- body of law .... tenet of [T]his . . . to read statutes requires together tion court] [this subject matter .... they when relate to the same a statute meaning of Accordingly, determining [i]n issue, at but also only provision ... we look not at the statutory ensure the coher- to the broader scheme to quotation marks ency of our construction.” [Internal 1-2 commentary (a) The official omitted.]). intended to maintain explains

code that “the was [c]ode rules of quo, i.e., preserve the status the common-law they prior adoption [c]ode, evidence as existed modify any prior adoption is not intended to its [and] interpretation of those rules.” Consistent common-law code, we conclude that purpose with the stated of this jurisprudence codified the common-law 4-5§ admission of miscon- concerning uncharged state plan excep- under the common scheme or duct evidence by which such tion, the liberal standard including in sex crime cases and the strin- evidence is admitted is admitted in by which such evidence gent standard Pierre, nonsex crime cases. See State 42, 277 Conn. common- A.2d 474 8-5 of code codified 60, (§ [1] [C] rule admission jurisprudence concerning allowing law pur for substantive prior inconsistent statements denied, cert. poses circumstances), under certain L. Ed. 2d 904 2873, (2006); 126 S. Ct. U.S. 4-4 of code supra, (§ 260 Conn. 638 Whitford, char jurisprudence concerning codified common-law Anesthesiology, v. Norwalk acter Harlan evidence); P.C., 75 Conn. App. 600, 606, 816 A.2d 719 (§ 8-3 ^[8] jurisprudence concerning common-law code codified cert. treatises), of statements in learned admission A.2d 1155 denied, (2003). that the liberal standard for the

Having concluded evidence in sexual misconduct uncharged admission code, codified in the we next sex crime cases has been we have the to reconsider address whether previously explained, purpose one this standard. As commentary to 1-2 is to code, (a), as stated statutory codify the common law and certain identified place and to them rules of evidence as rules of court readily body of rules to which the “into a accessible conveniently may refer.” Section 1-2 profession legal purpose stated provides of the code second (a) promote growth development the and the law is “to of through interpretation the and evidence [c]ode of that truth through judicial making rule to the end may justly determined.” proceedings be ascertained and that the Although judges it is clear (Emphasis added.) Superior of the Court intended the law of evidence to “interpretation future develop through and grow “judicial rule through making,” of the and [c]ode” 1-2 unclear. (a) of these two terms in is meaning § analysis interpretation. with the term begin We our hand, process interpretation On the one because the commonly explain is understood to mean to or to con- Dictionary Lan- strue; English American of the Heritage that term argued Ed. it could be guage (3d 1992); authority of the was intended to limit the common-law code in a man- construing and explaining courts they explain in which and construe ner similar to that See, by e.g., enacted the legislature. statutes A.2d 101 Sawyer, 331, 373-74, (2006) the other J., dissenting and On (Borden, concurring). promote is intended “to hand, “interpretation” because evidence,” law of development and of the growth “development” and both denote “growth” and the terms appears evolution and it change, progress, may have intended the Superior of the judges the com- broadly descriptive term to be construed adjudicative pursuant function to which evi- mon-law developed, and dentiary historically grown law has prescriptive a limitation on that function. rather than as commentary interpre- 1-2 the latter (a) The bolsters § is “[c]ase-by-case adjudication tation stating integral growth development evidentiary and, thus, law definition of the will be future [c]ode of the primarily interpretation effected through [c]ode judicial added.) rule through making.” (Emphasis impor- emphasis commentary places that the on the “ adjudication” in the [c]ase-by-case growth tance of evidentiary phrase synonymous development law, development principles of legal through with the adjudi- case-by-case traditional method of common-law narrow, rather than a con- cation, supports broad, struction of the term. “judicial term rule mak-

Likewise, meaning the term equally Although 1-2 unclear. ing” (a) reasonably may be to refer to codified rules construed adopted of court vote of the commentary to 1-2 indicates that the Court, (a) all broadly be construed to include eviden- term should by judicial branch, tiary developed regardless law the adju- it derives from an administrative or an of whether 1- example, commentary For the to § dicative source. that the was intended to provides [c]ode “[b]ecause the common-law quo, i.e., preserve maintain the status of they prior adoption existed rules evidence of modify any is not intended to adoption its [c]ode, the those rules.” interpretation of common-law prior commentary 1-2 the to § Because added.) (Emphasis case-by-case via evidentiary developed law refers evidence,” it adjudication as “rules of common-law Superior Court intended that the of the appears judges evidentiary include “judicial rule making” the term adju- case-by-case common-law developed through law 1-2 very least, (a) it is unclear from § At the dication. the commentary whether accompanying and its the abrogate Court intended to law develop and the appellate change courts to of adjudication case-by-case via common-law of evidence history purpose we turn to the and, accordingly, ambiguity.17 to resolve this of the code clause,” code, “[slaving (b) also § 1-2 of the entitled 17 Subsection of (a). (b) supports § 1-2 of of subsection Subsection a broad construction prescribe governing provides: does not a rule code “Where the [e]ode by admissibility evidence, governed principles shall be the court they may interpreted light in the of reason and the common law as be required by experience, except the constitution of the United as otherwise state, States, Statutes or the Practice the constitution of this the General precluding provisions not be construed as The shall Book. [c]ode evidentiary any recognizing rules not inconsistent with from other court commentary explains (b) provisions.” to 1-2 of the code such “[sjubsection (b) with the situation in which courts are faced addresses expressly Although evidentiary issues not covered [c]ode. [c]ode every evidentiary matters, possibly it address will address most cannot might during (b) evidentiary arise trial. Subsection sets forth issue that guided in such instances. which courts are to be the standard every evidentiary issue, “Precisely it cannot address the [c]ode because admissibility governing set rules is not intended to be the exclusive precluded Thus, (b) is not subsection makes clear that court of evidence. evidentiary recognizing rules not inconsistent with the from other [c]ode’s provisions.” (Emphasis added.) “evidentiary First, governs might (b) arise §of 1-2 issue[s] subsection exclusively Superior Courts, therefore, applicable during and, trial" added.) Appellate (Emphasis to this court. Conn. rather than to the Court or commentary. specifies, (b), (b) §As 1-1 of the code Evid. 1-2 “[t]he Code superior applies proceedings court in which facts to all [c]ode provided by [c]ode, found, except dispute the General as otherwise are that, Second, (b) § 1-2clarifies Book.” subsection Statutes or the Practice adoption code, Prior to the of the “the law of evidence [solely] courts was found in applied Connecticut court in enactments decisions and rules of the E. Prescott, of the C. Tait & Connecticut legislature.” attorneys p. Evidence Ed. xlix. Because both (4th 2008) lacked a concise and authoritative resource judges evidence, rules of summarizing applicable the “[dis- evidentiary putes about rules to time con- [contributed] both at the trial court level and on suming arguments appeals.” Report Biennial of the Connecticut Judicial July 1,1982-June 30,1984, p. 57. To amelio- Department: Ellen A. problem, rate this former Chief Justice Peters report judicial in the 1984 biennial of the suggested that “it would be of benefit to department great practitioners Assembly, if the General after a thor- study ough principles evidence, of the enacted code Id. of evidence.”

“By 24, 1991, October the co-chairmen letter dated Judiciary Assembly of the of the Committee General Law requested that the Connecticut Revision Commis- study feasibility ‘the (commission), legisla- sion study tive enactment of an evidence code’ and that the ”18 an Tait & ‘include draft bill for evidence code.’ C. despite adoption code, Superior Court retains promulgate prevailing to rules of evidence the absence of a common-law and, such, simply preserves long-standing code it rule codified adjudicative constitutional and common-law function of the See, Valenti, e.g., Conn. vis-á-visthe law of evidence. American Oil Co. admissibility 349, 356, (“[t]he generated (1979) 426 A.2d 305 of evidence computers” impression subject appellate of first for trial court was issue 454, 459, 370 review); Vaughn, (1976) (“whether A.2d 1002 State v. Conn. capacity giving evidence as to the mental of a confessor at the time of jury” weighed to be was issue of first of the confession is admissible subject appellate Warden, impression review); for trial court Evans testimony App. 274, 279-81, (1992) (whether expert 613 A.2d 327 required assistance of under Strickland v. to establish ineffective counsel [1984], Washington, L. 466 U.S. 104 S. Ct. 80 Ed. 2d 674 was subject appellate impression review). matter of first for habeas court part composed legislative is a branch and is The commission Assembly, judiciary, representatives members of the from the General faculty law within the state. See General bar and the of accredited schools include, and 2-86.The duties of the commission but are not §§ Statutes 2-85 6. The foreword to the Prescott, supra, 1.1.2, p.

E. Supreme Court Justice David explains code that “[then] committee of the M. was asked to chair Borden [the] proposed code with charged drafting [commission] members of evidence for Connecticut. The [the] Professor Colin C. Tait of committee included: drafting University Law; Supreme School of of Connecticut Paul Katz; Appellate Judge Joette Court Court Justice L. Foti; Superior Aurigemma, M. Court Julia Judges Q. attorneys Joseph Koletsky; Freed and Robert Samuel Bruckmann, Wil- Adelman, Jeffrey Apuzzo, Joseph B. G. Gill, David Susann E. Donald R. III, Elliot, liam Dow and Holtman, Lowry, Scholl, Houston Putnam Jane S. W. Law Revision Commission mem- Wiechmann; Eric FitzGerald, Representative P. Arthur J. bers Jon [State] O’Neill, Superior Solomon, Court Elliot N. and Judge Upson; Senator Thomas F. and [State] [commission] attorney Jo A. Roberts and staff senior [commission] attorney Eric M. Levine. completed Sep-

“The committee its work drafting tember, public comment, 1997.After the draft- receiving product to the . . . committee submitted its work ing adopt proposed which voted to code [commission, commentary in December, Thereafter, 1997. proposed commentary code and were submitted to the Judiciary Assembly for Committee of the General con- the 1998 session. Before during legislative sideration however, certain mem- session, commencement of the Assembly suggested that, bers of the General had for reasons, adopted, various a code of evidence should be all, by Superior pursuant if at judges of rule-making legislation. to their rather than Judiciary Supreme then Thus, urged Committee Court Chief Justice Robert J. Callahan to have the to, studying recommending proposed changes law limited of this state. See General Statutes 2-87. Superior Court consider adopting pro-

posed code as rules of court.”19 “Their thought, with which the Rules Committee of the Court ulti- mately agreed, was that it would be easier to amend time, arose, by from time to as the need rule [c]ode rather than legislation, adopting [c]ode a set of rules of court rather than as would legislation political insulate such from the arena.” D. changes Bor- den, “The New Code of Evidence: A Brief Intro- (Very) duction and Overview,” 73 Conn. B.J. 211 (1999). explains,

As the foreword to the code response, “[i]n Chief appointed Justice Callahan a committee to con- 19“By 3, 1998, Judiciary letter dated March the then co-chairs of the Callahan, Committee wrote to Chief Justice . . . as follows: Callahan, “Dear Justice you aware, drafting I “As am sure are since 1993a . . committee of the . [cjommission codify preparing existing has been a code of evidence to drafting by case law. Connecticut The committee was chaired Associate highly panel distinguished . . . Justice Borden and included a of Connecti- legal practitioners, including Katz, Judges cut scholars and Justice . . . Aurigemma Freed, Koletsky, Tait, . . . . . . and . . . and Professor . . . drafting co-author of Handbook of Connecticut Evidence. The committee completed proposed its work in December 1997and the code has now been approved by promulgation for the . . . [commission. [j]udiciary [cjommittee, pro- “As of the we believe that the [c]ochairmen posed accurately encompasses code Connecticut’s rules of evidence attorneys litigating presiding judges. form that will be most useful to and appropriately promulgated We also believe that the code would more be legislation Assembly. rules of court rather than as of the Connecticut General existing must, future, The code reflects court-made law and in the remain responsive judicial are, therefore, submitting proposed concerns. We the possible adoption Department. code for consideration and of the Judicial adoption appropriate code, by “Because of an whether rule of court or by legislation, importance, any continuing is of vital we have a interest respect proposal. you, therefore, action that is taken with to this Would kindly prior any legislative advise us to the 1999 session of action that the Department may taking intending respect Judicial be to take with are, course, the code at that time? We available to discuss matter further. . . . “Sincerely, Williams, “Senator E. Donald Jr. “Representative Michael P. Lawlor “Cochairmen, Judiciary . Connecticut Committee . . .” C. Tait & E. Pres- cott, supra, 1.1.3,pp. 8-9. commentary and its proposed and code

sider review Superior This adoption by Court. judges for Katz and included by was chaired Justice committee Schaller, Barry Superior R. Court Appellate Judge Court Bishop, A. Thomas J. Thomas Judges Aurigemma, Kavanewsky, Koletsky, Freed, Jr., John F. Corradino, attorneys Rush, Tait, and and William B. Professor pro- This reviewed the Roberts and Levine. committee commentary 1998, from until posed June, and code 1998, parts made to various thereof September, changes product its work to the Rules and then submitted final Rules unani- approval. Committee for The Committee mously proposed commentary. and approved the code commentary and were Thereafter, proposed code finally June, and subject public to a hearing judges on June 1999. adopted were “An committee was created oversight adopted they [c]ode, Court when development purpose monitoring for recommendations for future revision making [c]ode membership of the com- clarification. current (chair), Superior mittee includes: Justice Katz Beverly Bishop, Corradino, J. Kava- Judges Hodgson, newsky, Koletsky, attorneys R. Sheldon, Michael Wiech- Adelman, Bruckmann, Gill, Steigelfest, Jack G. mann, . . . Professor Tait. The over- and Levine and October, 1999, committee convened in and sight recommended minor and com- changes [c]ode mentary developments in primarily on recent based were approved law. Those recommended changes October, 1999, Rules Committee then Superior and judges November, Court ultimately incorporated were into the final version of January 1, on 2000. [c]ode,” which became effective history

The that was reflects the code foregoing bar provide intended to the bench and the with a concise and authoritative restatement of state’s common statutory law and identified rules of evidence so that disputes application evidentiary over the rules could efficiently. D. quickly Borden, be resolved See supra, 73 Conn. B.J. 212 rationale for (“The having will is that it be easier and more efficient for all [code] of the relevant actors in the litigation process -judges — lawyers code, have a stated in concise and —to familiar It will form, black letter to which to refer. be printed separate paperback volume, in a like the new every Practice Book will format, judge have with him bench, practitioner or her on the and each will be Thus, everyone able to to court with him or her. bring will phrase.” be on the same to coin a page, [Internal quotation Turner, marks omitted.]); J. “Uniform or L. Straightjacketed Justice?” 26 Conn. Trib. No. Janu- ary 17, 2000, p. quoted Superior author (The Judge John J. “There are no losers with Langenbach: helpful attorneys the new code .... It’s to me and the .... You can have a five-minute and discus- argument sion, opposed to those that on for a time.” go long quotation marks omitted.]). [Internal history The foregoing support does not the conclu- sion, however, that the code was intended to divest court of its change develop inherent case-by-case the law of evidence through common-law adjudication. transcript 28,1999 of the June annual meeting Court, at which adopted, the code was indicates that Justice Borden explained purpose of the code as follows: “the ratio- is, nale behind the that it will be more efficient [c]ode process for all in the to have a stated litigation [c]ode in a concise and familiar form to which to refer.” There was no discussion effect, any, adoption if upon code would have this court’s common-law adjudicative authority develop eviden- change tiary case-by-case basis, authority law on a an inherent enjoyed century. that it has since the seventeenth reveals annual transcript meeting of the the Indeed, adoption which manner in the sole reference development of the future would affect of the code made in connection in state was evidentiary law this Oversight of Evidence of the Code with the creation proposed purpose the (committee), Committee for revi- recommendations periodic was to “make which the Although judges code. of the sion and clarification” the creation approve voted to Superior Court of the members composed of committee, judges, which is scope intended faculty, law bar and school revisions authority to recommend of the committee’s unclear, is unclear. It is of the code and clarifications the com- intended for example, judges whether the for code, revisions to the recommend substantive mittee to evi- common-law well established overruling such as by court, or whether dentiary developed rules of the com- for the recommendations intended judges in gaps such as scope, filling be limited in mittee to changes code to reflect evidentiary updating law and through this court evidentiary developed law adjudi- case-by-case method of traditional common-law cation. any discussion meeting at the absence of

In the impact concerning judges have on the future of the code would adoption evidentiary it is to con- law, illogical development purposes the code for the that, adopting clude intended to divest convenience, ease and inherent common-law long-standing this court of its evidentiary law. Cf. adjudicative over (Katz, Skakel, 633, 779, (2006) 888 A.2d 985 simply runs counter to reason J., concurring) (“[i]t impose, intended to for the that the legislature conclude of limitations history, state’s a statute first time the five except those committed under on all murders felonies— constituting capital limited circumstances

453 rendering felony subject all class A murders ato five year statute of any limitations —without discussion or expression denied, of cert. 549 opposition”), U.S.

127 S. Ct. 166 L. Ed. 2d 428 Statewide (2006); Rozbicki, Grievance Committee v. 211 232, 244, Conn. major 558 A.2d 986 (1989) (“[a] change legislative policy, believe, we would not have occurred without opposition some sort of or at least discussion in the legislature” quotation marks Stated omitted]). [internal simply, we believe that such a departure radical from the evidentiary method which law grown has and developed past years over the would generated have at least a minimal amount of discussion or opposition among judges Superior of the Court. The silence of the record on point speaks this therefore volumes.20

In light of the ambiguous language code, dearth of extratextual evidence the intent of indicating judges Superior Court,21 and the rule of strict that, The dissent states that “it is well-known as chair of both the drafting committee, evidence code committee and the Practice Book rules spent many judges’ meetings explaining Justice Borden hours at association prior presentation. Thus, the code to his official his statements at the official reasonably meeting summation, comprehensive should be viewed as a not a adoption First, discussion of all of the ramifications of of the code.” such hardly “well-known,” given information can be characterized as that there public any appearance judges’ no record of Justice Borden’s at association Second, meetings. divesting this court of its inherent common-law and con ac[judicative authority evidentiary law, stitutional over an which epjoyed inception, picayune this court has since its is not a minor or detail. that, minimum, sweeping consequence One would assume at a such a would purpose concerning merit a brief mention in Justice Borden’s summation impact of the code. Anecdotal extratextual evidence reflects that the Court, adopt code, may conflicting all of whom voted to have had understandings impact adoption of the code would have on development evidentiary Shortly the future law. after the code became effective, attorneys expressed several concern that the code will “[freeze] growth evidentiary Turner, the common law” and “slow the law . . . .” J. supra, Although attorneys judges” expressed L. Conn. Trib. 10. “both “judges longer develop their views at that time that no will be free to case-by-case using law,” Supreme law on a basis the common then opined outweigh Justice Borden that “the benefits the costs.” [of code] rules applicable promulgated deroga- construction we that the law,22 conclude code tion of the common of its inherent intended to divest court was not develop authority the rules evidence change case-by-case adjudication.23 Simi- common-law through Id.; (a) (Justices Supreme of Court also also General Statutes 51-198 see however, expressed Superior Court). Judge Langenbach, judges his are of impact that, “[a]ttomeys . . . about the code’s should relax view worried attorneys judges interpreting only guide for in the code is a and because very helpful. very good guideline. good, ... a a [It [It is] law. [It is] is] changes." quick Supreme (Emphasis but our Court can make reference Turner, conflicting added.) supra, L. Trib. 10. This evidence J. 26 Conn. express supports judges Superior did not our conclusion that the Court plain a intent divest this court of its inherent common-law clear and adjudicative authority evidentiary by adopting law the code. over 22 derogation it a statute is in of common law ... should receive “[W]hen extended, modified, repealed enlarged a and be or strict construction is not to by scope [statutory] in ... In the mechanics of construction. determin its ing abrogates or law whether or not statute modifies a common rule the operation derogation strict, in must be and the of a statute of construction clearly brought scope. law is to be to matters within its common limited may right statute, Although legislature . . eliminate a law . common purpose presumption legislature does not that the have such can be clearly expressed. only legislative plainly . . . if the intent is overcome strictly derogation that statutes in of the common law are construed The rule stability policy continuity legal of in the can be seen to serve same system (Internal in law.” as the doctrine of stare decisis relation to case 426-27, quotation Cohen, 412, omitted.) marks v. 927 A.2d Viera (2007). that, Sawyer, supra, n.1, recognize in 279 Conn. 331-32 we We analysis that, 2000, year in stated in dicta and without “since which the authority adopted, change was the rules of evidence lies [code] judges discharge rule-making in the of their with the Court course, date, evidentiary prior changes to that to substantive function. Of accomplished by in of their rules were our courts the exercise common- authority. evidentiary may law To the extent that our rules be deemed to implicate rights, substantive we believe it is unclear whether those properly subject judicial making subject are the rule rather than the rules adjudication. question raises an issue on which common-law Because request parties, however, briefing we leave it for did not we another ”day. Sawyer dicta, binding precedent was Because our statement it not therefore, appeal. and, present See, does not dictate the outcome of the Dept. Corp. Utility Control, e.g., Tech Public Tele Connecticut (2004). To the that we Conn. A.2d 174 extent indicated Sawyer, however, change that “the the rules of evidence lies larly, we conclude that the Superior did not intend for the committee to recommend sub- stantive changes evidentiary to the common-law rules codified in the code, but, rather, intended for the com- simply mittee to recommend revisions com- reflecting mon-law developments evidentiary law, clarifications of the code to resolve ambiguities additions to the code in the absence of governing common-law rules. Stated simply, we conclude that the code was not intended to displace, supplant supersede common- evidentiary law development rules or their via common- law adjudication, but, rather, simply was intended to comprehensive function as a and authoritative evidentiary restatement of law for the ease and conve- nience of community.24 the legal

Moreover, our construction of the code is consistent duty with our interpret to statutes in a manner that avoids them in placing constitutional jeopardy; see, e.g., v. Metz, State 230 400, Conn. 422-23, 645 A.2d 965 judges Superior discharge with the rule-making of the Court the of their function,” appellate rather than in the courts of this state “in the exercise [adjudicative] authority,” hereby of their common-law our conclusion is Sawyer, supra, overruled. State v. 332 n.1. merely prevailing Because the code restated the common-law eviden tiary rules, judges Superior already which the of the were bound to apply, expedite judicial proceedings by and was intended to and streamline serving rules, clearly as a shorthand reference to those the code was intended binding authority Superior (b) to be in the Court. Section 1-1 of the code specifically applies proceedings superior states that to all in the “[t]he [c]ode dispute found, except by provided court in which facts in are as otherwise [c]ode, the General Statutes or the Practice Book.” The code therefore fundamentally handbook, persuasive differs from a treatise or which has only. question presented appeal, however, value The in this is whether not binding authority Superior Court, but, rather, the code is in the whether it authority binding precluded is in this court such that we are from reconsid ering prior precedent explained our own codified the code. For the reasons body opinion, judges Superior in the of this we conclude that the of the adoption Court did not intend their of the code to divest this court of its authority develop change case-by- inherent to the law of evidence via adjudication. case common-law 88, A.2d 1157 Floyd, 73, Conn. (1994); questionable it is whether the because (1991); authority Superior under article of the Court have codify to a code fifth, 1, of the state constitution § com- strips appellate courts of their evidence that adjudicative mon-law function.25 Connecticut, fifth, Article constitution by twenty, article amendments as amended power state vested provides: judicial “The shall be appellate court, court, supreme court, superior in a an assembly shall, and such courts as the general lower time, powers time ordain and establish. The from to by jurisdiction of these shall be defined courts judicial especially significant law.” “It that unlike the is state and that of the articles of most constitutions powers and (article III), United States constitution jurisdiction specifically the two [originally] courts Supreme named in Connecticut constitution (the specified. are reason is Courts) not evidentiary repeatedly analogizes in the The dissent rales codified promulgated legislature to and maintains that this code statutes modify necessarily authority court’s or overrule the code is commensurate modify analogy with its or overrule a statute. The dissent’s authority modify inapt, First, a statute however. this court’s overrule separation powers provisions is limited of the state and federal Courchesne, 537, 580, See, e.g., v. 262 Conn. 816 A.2d constitutions. powers (2003) (under separation provisions of of state and federal statutes, legislative constitutions task of the branch is to draft and enact “the judicial inteipret apply and the and the task the branch is to them in of specific present cases”). Because case the allocation context involves authority single government, branch the division within a rather than authority however, government, two or more branches of between by provisions inapplicable. Second, claiming imposed limitations those are code, simply engages the code it is a that is inviolate because the dissent question tautological presupposes the answer to with in a exercise namely, code, presented, enacting which we are did the Superior authority change divest this its inherent Court intend to court of case-by-case adjudica develop through and law of evidence common-law analysis predicate question negative, Because this in the our tion? we answer necessarily analysis begins. where the dissent’s ends obvious. The 1818 constitution neither created nor pro- vided for judicial system the creation of a new of new Rather, adopted courts. it gave permanence and in the constitution to the existence of the Supreme Court as the state’s highest appellate jurisdiction court of to the Superior Court as the trial juris- court of general diction.”26 v. Warden, Szarwak 167 Conn. 10, 32, 355 A.2d 49 see also (1974); Walkinshaw v. O’Brien, 130 122, Conn. 127, 32 A.2d 547 (1943) (“[t]here can be no doubt that it was the intent of the ^[1818] constitution Superior continue, should with the [the Court] essential previously characteristics it had possessed”); v. Styles Tyler, 64 Conn. 432, 449, 30 A. 165 (1894) (“ onstitution of 1818must be read in connection [t]he [c] with peculiar development and existing condition [the] of our judicature, and in view of the special defects it was adopted to remedy”).

Accordingly, fifth, under article 1, Superior § Court is a jurisdiction court of general with ultimate authority causes, over the trial of Supreme whereas the Court is a court appellate jurisdiction of limited with ultimate over the correction of errors of law. See, State v. e.g., Nardini, 187 Conn. 109, 126, 445 A.2d fifth, 1, provided Article as codified in the state constitution of 1818 judicial power supreme that: “The of the state shall be vested in a court of errors, superior court, assembly general and such inferior courts as the shall, time, powers jurisdiction from time to ordain and establish: the by changed of which courts shall be defined law.” “The 1965 constitution provision by deleting Supreme the words ‘of errors’ in the title of the Court, by changing defining the word ‘inferior’ to ‘lower’ in what courts by Assembly, by could replacing be established the General the colon ” period after ‘establish’ with a and the word ‘which’ the word ‘these.’ Warden, Szarwak 10, 29, (1974). changes 167 Conn. 355 A.2d 49 These alter, any way were technical in nature and were not intended to or in materially change, jurisdiction composition of the “constitutional courts,” Supreme Id., 34-36; Court and the Court. see also Rubinow, 150, 156, Adams (1968). 1982, 251 A.2d 49 In article fifth, twenty, amendments, § was amended article which court, Appellate created a third constitutional the Court.

458 appellate court a constitutional

304 (1982) (“[t]his . of law . . and the court is limited to errors resolving upon conferring it discre precluded is from legislature authority” Dudley v. tionary omitted]); factual [citation was Deming, 169, 174 the intention (1867) (“It 34 Conn. Supreme the that the of framers constitution be for the correction of Court of Errors should a court clearly this, imports The used language errors law. the of understanding legisla and such has ever been the of people the state.” ture, courts, v. Tyler, supra, [Emphasis original.]); Styles ‘Superior Court’ a Court of Judica (“The ‘Superior is jurisdiction with a supreme original ture over this State’ not appellate over the trial of causes committed ‘Supreme jurisdiction of inferior Court courts. all supreme purposes, of Errors’ not a court for but only for supreme court the correction of errors . . . law .”). prior law

Under the common of this state ultimate England, as under the common law of rules governing over the and standards with the court admissibility highest of evidence rested v. See, e.g., Chapman Chapman, of the state. Conn. 347-50, improperly court admitted (1817) (trial hearsay Bush, 1 Conn. 260 evidence); Townsend testimony of (trial improperly court excluded (1814) Phelps Yeomans, Day competent witness); (Conn.) court excluded evidence in (trial properly (1806) Swift, A action for see also Z. ejectment); Digest Law of Evidence in Civil and Criminal Cases and Promissory 459 developed by court, Superior which the Court was this Bush, supra, Townsend v. required apply. See, to e.g., question party 270 whether a to a (“The negotiable instrument, interest, compe- who is divested of his is a creation, tent witness to it void in its now comes [show] for the first before this for decision. We time [c]ourt by any liberty are are at precedent, and [unshackled] Jolly, Inc. to decide it v. principle.”); on the see also Zoning Appeals, Board 184, 195, 237 Conn. 676 A.2d 831 axiomatic court (1996) (“[i]t is trial is bound by Supreme recently As we precedent”). v. Saucier, explained State 207, 219, Conn. “only A.2d 633 after a trial court has made the (2007), legal admissibility determination” of evi- regarding dence, with to “is it vested the discretion admit or to upon relevancy, bar the based prejudice, evidence or other legally appropriate related to the rule grounds evidence being sought.”27 under which admission is See also 1 J. Evidence Wigmore, (Tillers 16, p. Rev. 1983) § 751 (“discretion in the strict sense is our law not conceded to trial judge points on evidence” spirit requires because whole of our law “[t]he id., precedents”); 16, p. observance of see also § (“Finality system as to the tenor of the law is in our very never the trial judge. conceded to constitution of courts of is of itself a appeal demonstration.”). authority

Because this had final and binding court prior over law 1818, of evidence to because the authority Supreme common-law of the Court and the Superior fifth, Court was codified in article constitution we question whether the judges Court have the constitutional 27Nothing opinion in this should be construed to restrict the trial court’s premised broad or exclude discretion to admit evidence “if on correct Saucier, supra, view of the law . . . .” 218. We conclude only that, fifth, 1, constitution, province under it is article state court, Superior Court, ultimately of this to rather than determine what the correct is. view of the law adopt with that is inconsistent a code of evidence promulgated by principles legal court, develop power change court of its

divest this case-by-case adjudication. See via the law of evidence (“[tjhere supra, O’Brien, 130Conn. Walkinshaw the of the [1818] doubt it was intent can be no that Superior continue, [the Court] that should constitution previously pos- it had with the essential characteristics supra, (“[t]here Styles Tyler, sessed”); 451 Conn. escape [constitution the is from the conclusion that no judicial power, portion of in this court a the vested power power specified vested, and that the so it the so supreme jurisdiction specified and final for the is law”). to of We therefore decline correction errors potentially unconstitutional the code in such construe evidentiary the rules articu- manner, and conclude that subject change, modification, are to alter- lated therein by its ation amendment this court in the exercise of or adjudicative author- and common-law constitutional ity.28 reiterate, is, conclude that the code neither To we anything concise, than a be, nor was intended to more commentary (a) § 1-2 and, the to authoritative as body “readily of it, accessible rules to code describes may profession conveniently legal refer.”29 which the question judges Likewise, the the have we whether of Court adopt authority a code that is the to of evidence inconsistent constitutional Court, principles promulgated Appellate legal to with the the extent the principles court, are with the decisions of this or to such consistent power develop change Appellate to and law of divest the Court of its case-by-case Accordingly, via we conclude that the evidence abdication. subject change, modification, evidentiary in the code are to rules delineated Appellate alteration or amendment Court in the exercise its consti adjudicative authority, and common-law to the extent that such a tutional modification, change, is not inconsistent with the alteration amendment prior Hopkins Correction, court. See Commissioner decisions 672, appellate court,” App. 670, (“[a]s an 95 Conn. A.2d 632 intermediate by Supreme precedent Appellate is and unable “bound Court [is] modify denied, (2006). it”), to cert. 902 A.2d 1071 speculates may result The dissent that “the in this case motivate legislature previously contemplated bring through to follow on action to supervision body, majority of that which the rules of evidence under point predicated Our conclusion on this on the unique procedural history and, factual of the code such, as should not be construed to extend to the rules practice codified in the Practice Book. Unlike eviden- tiary law, over which this court has exercised final and adjudicative binding authority inception since its more years than 200 ago, our research that, has revealed prior Superior Court had the adopt rules governing practice pleading, procedure in the trial court, known as “regulae generales.”30 Regulae generales, prac- like the rules of tice, simply govern manner which a trial prog- and, such, resses are intended to ensure the uniform, predictable and By efficient trial of causes. contrast, the rules of evidence govern quality type presented evidence and, the trier of fact as such, purpose their is to reliability, dependability ensure the and of the integrity trier’s verdict. As 1-2 (a) of the code states: “The purposes of the adopt are to [c]ode Connecticut case law rules of evidence regarding promote rules of court and to develop- and growth ment of the law of evidence through interpretation of acknowledges authority adopt has to rules of evidence that would bind this why legislature preempt court.” We see no reason would seek to code, duly adopted by judges Superior which was of the Court and is binding authority Indeed, March, 1998, in that court. it was the then Judiciary Committee, Williams, cochairmen of the Connecticut E. Donald Lawlor, appropri- Jr. and P. Michael who noted that “the code would more ately promulgated legislation be as rules of court rather than as of the Assembly. existing Connecticut General The code reflects court-made law must, future, responsive judicial Thus, and in the remain to concerns.” our today comports legislature, decision with the intent as well as the intent of the Court. 30 Day (Conn.) (1808) (adopting jury pertaining See 3 28-29 rules instruc tions, exceptions trial); Day (Conn.) bills of and motions for new 119 (1809) (adopting pertaining attorneys practice seeking rules admission to specifying law and that motion for new trial must state facts on which Day grounded); (Conn.) (1811) (ordering motion is certain limitations June, 1809, attorneys regarding practice to rule established in admission of law). judicial end making rule through and [c]ode proceedings and may be ascertained

that the truth added.) Because the (Emphasis justly determined.” judicial facilitate the court’s core rules of evidence necessarily are, always function, they truth-seeking supervision subject to the been, oversight have law and un article under the common der this court both state constitution.31 fifth, 1, of the to mod- that we have concluded Having in the ify the rules of evidence codified common-law should our code, address whether we exercise we next present case. authority under the circumstances which claims that the liberal standard defendant is admitted in sexual uncharged evidence of misconduct plan excep- assault under the common scheme cases rejected it tion because should be reconsidered plan fails to of a in the genuine establish existence Additionally, mind. the defendant claims defendant’s be uncharged misconduct should not evidence liberally in cases in non- admitted more sex crime than because of a sexual nature are sex crime cases crimes compulsive secretive, neither aberrant nor than more In of this court’s light crimes of a nonsexual nature. scope recent of the nature and of the com- clarification v. Randolph, in State plan exception mon scheme or supra, Conn. we conclude evidence of under the stan- misconduct admitted liberal uncharged ordinarily dard not the existence a genu- does reflect of plan ine in the defendant’s mind. common scheme however, recognize, . . . We rules of evidence have never “the judicial exclusively regarded this state as within the domain. Over a been period many years, legislature modifying of various has enacted statutes prevailing changes at .... These have the rules evidence common law of challenged violating accepted courts and been been our have never James, powers.” 555, 560, principle separation State Conn. Kulmac, supra, (“[t]he see also State (1989); 560 A.2d 230 Conn. 52 admissibility subject pertaining rules in Connecticut are to the of evidence judicial authority”). legislative exercise of both Nonetheless, we recognize that crimes of a sexual unique nature are and distinct from crimes of a nonsex- they ual nature because surrepti- often are “committed tiously, any in the absence of neutral witnesses” and “unusually exhibit an aberrant and nature pathological . . . .” v. Merriam, supra, 264 Conn. 669-70. we Accordingly, conclude that evidence of uncharged properly may misconduct be admitted in sex crime cases under the liberal standard, provided probative its prejudicial value its outweighs effect, to establish that tendency the defendant had a or a propensity to engage in certain compulsive aberrant and sexual behavior. We adopt therefore the liberal standard of admission of evidence of uncharged misconduct in sex crime cases as a limited exception to 4-5 (a) code, which prohibits the admission of of other crimes, “[e]vidence person or acts of a ... wrongs prove the bad char- acter or criminal person.” tendencies of that analysis

We our begin purpose with the general scope of the common plan scheme or exception, as recently clarified in State v. Randolph, supra, 284 Conn. 342. “Evidence of uncharged misconduct, although prove inadmissible to a defendant’s bad character or propensity to in criminal engage behavior, is admissible prove the existence of a larger plan, scheme, or [t]o conspiracy, of which the crime on trial . part. . . prove To the existence plan, a common scheme or each crime integral part must be an an overarching plan explicitly conceived and executed the defen- dant or his . . . plan Evidence of such a confederates. is relevant crime charged because it bears on motive, defendant’s and hence the doing of the act, identity criminal actor, and his intention, any where of these is in dispute.” (Citations omitted; emphasis added; quotation internal marks Id. omitted.)

In Randolph, we identified two of cases categories in which evidence of uncharged properly misconduct cases

may prove be in nonsex crime admitted first plan. or “In the existence of a common scheme composed of true common scheme which is category, uncharged the nature of the misconduct plan cases, or crime, connecting or existence of and the charged evidence, genuine reveal a connection' between ... mind. As Professor crimes in the defendant’s his entitled explains in treatise Edward J. Imwinkelried The act Uncharged [uncharged] Misconduct Evidence: plan a true when it dissimilar probative can be even is need not be exact corre- crime. There charged The plan. all crimes involved spondence between shop of a can used to pawn defendant’s be burglary for a plan weapons show the to obtain defendant’s employed can robbery. theft of a car be The defendant’s plan car a getaway to show the defendant’s to use the as robbery. The kidnapping defendant’s vehicle in a or plan theft of a uniform is evidence of the defendant’s an masquerade to rob armored car. guard in order dissimilarity uncharged between charged the value of the crime negate uncharged crimes does not plan including as evidence of the existence omitted; quotation internal charged (Citation crime.” Imwinkelried, 1 E. Id., 343-45, quoting marks omitted.) 3:22, Ed. Uncharged (Rev. 1999) § Misconduct Evidence p. 118.

“In the consists category, signature second which cases, uncharged this court concluded that evidence of was admissible to establish the existence misconduct plan char- of a common scheme because factual shared crimes charged uncharged acteristics unique as sufficiently were distinctive and to be like and, therefore, it could be inferred signature logically if the one he must be guilty defendant [crime] (Internal quotation omitted.) of the other.” marks guilty Randolph, supra, State v. Conn. 347. In Randolph, “why employ we opportunity explain we took the the ‘signature test,’ probative identity which is perpetrator the defendant as the of the crime to of a charged, ascertain existence common Id., scheme or plan.” 350; see, e.g., Ibraimov, 446 A.2d “The 348, 354, signature 382 (1982). test pertinent plan inquiry is to common scheme or . . . when the seeks to state establish existence of an overall plan in the defendant’s mind based solely on by the similarities shared and charged uncharged because, crimes. This is when of -uncharged evidence sufficiently misconduct charged similar to the crime so as to rise to the level modus signature, operandi, likely or logo, it also is exhibit such concurrence . common . . naturally explained features be [as] plan as caused a general charged of which and [the are the uncharged individual manifestations. crimes] . . . Stated another way, charged when the exhibit uncharged crimes the same modus operandi, it is likely that both crimes had been committed in plan furtherance of an overall in the or scheme defen- dant’s mind. It is the existence of permissive this infer- plan explains ence that an overall existed that our use in the signature category test second of cases.” of.the (Citations omitted; emphasis quota- internal original; tion omitted.) supra, marks State v. Randolph, 352.

We cautioned, however, “[although permis- may many sive inference arise in if some, [signature] not cases ... it will arise in not all cases. As the Washing- aptly ton Court of Appeals observed, more [something than the doing required of similar acts is evidencing design, object merely as the is not an negative inno- prove cent intent, but to the existence of a definite project, directed toward the completion crime in question. Thus, . . . when to admit evidence seeking pursuant to the common scheme it plan exception, similarity is not show mere enough to between the [charged uncharged] crimes . . . because [s]tand- acts does not establish a series similar

ing alone, A of similar robberies plan. a true series existence of . . . separate result decisions to rob. could be the plan of a true to establish the existence Accordingly, on marked solely mind based in the defendant’s uncharged charged similarities shared to: evidence crimes, produce the state must sufficient ope- aof modus signature, establish the existence (1) inference randi, support permissive or a logo; (2) an in goal both crimes were related to overall in omitted; emphasis the defendant’s mind.” (Citations Id., 354-55. quotation omitted.) internal marks original; pursuant Randolph, the that, It is clear touchstone plan exception the exis- of the common scheme or is plan or in the tence of an overall scheme defendant’s encompasses mind that the commission of both Thus, “it is enough crimes. not charged uncharged similarity [charged to show mere between alone, crimes . . . uncharged] [standing because series of similar acts does not establish the existence internal plan.” (Citation omitted; quotation of a true Id., omitted.) marks 355. in liberal principles mind,

With these we turn by which evidence of misconduct uncharged standard is admitted to establish the existence a common in It is well plan scheme or sex crime cases. established . cases, liberality in . . that, such a greater “[t]here in of other criminal to show admitting evidence acts . . . scheme, pattern common or .” design (Internal Sawyer, v. quotation omitted.) supra, marks State Evidence is admis- uncharged Conn. 349. misconduct time, proximate “if offense is sible similar persons the offense and committed with simi- charged, inter- added; lar to the witness.” prosecuting (Emphasis quotation omitted.) Id.; see, nal marks State e.g., Jacobson, supra, properly 283 Conn. 633 court (trial prove admitted misconduct evidence to uncharged plan common scheme or part relevant because of “important similarities” between defendant’s relation ship and conduct with victims); State v. McKenzie- Adams, 486, 525, 915 A.2d 822 (trial court properly admitted uncharged misconduct evidence to prove plan common scheme or because victims simi larly were situated and “defendant’s sexual misconduct with sufficiently was cert. similar”), [the victims] denied, 552 U.S. 888, 128 S. Ct. L. 169 Ed. 2d 148 Ellis, (2007); 270 Conn. 337, 358, 852 A.2d 676 (2004) (trial improperly court admitted evidence of uncharged misconduct under plan common scheme or exception because “there were few similarities” between defendant’s abuse of victims and relationship G., State v. James with victims); 268 Conn. 382, 393, 844 A.2d 810 court (2004) (trial properly admitted evi dence of uncharged misconduct under common scheme plan exception part relevant because “defendant’s sexual abuse of was similar to the offense [the victim] charged” and was upon “committed person] similar [a witness” prosecuting quotation marks [internal apparent It is omitted]). that, under this liberal standard, it is similarity by shared the charged and uncharged crimes, rather than the existence of a genuine plan the defendant’s mind, that is the focus of the court’s inquiry. Moreover, under the liberal standard, the simi larities shared the charged and the uncharged crimes need not be “so unusual and distinctive as to be like a signature”; (internal quotation marks omitted) Merriam, supra, 264 666; and, Conn. consequently, need not “exhibit such a concurrence of common features naturally explained to be as caused a general [as] plan of which charged and uncharged are [the crimes] the individual manifestations.” State v. Randolph, supra, 352; id. (in cases, nonsex crime evi dence of uncharged only misconduct is sufficiently simi prove lar to plan common scheme or if it rises to level signature, operandi modus or logo). 468 not focus on the the liberal standard does

Because plan the defen of an overall scheme or existence encompasses mind that the commission dant’s crimes, instead focuses on but charged uncharged crimes, we similarity charged uncharged admitted under this acknowledge now that evidence ordinarily fall com does not within “true” standard State v. Whit plan exception. See, e.g., mon or scheme taker, (“five-year- A.2d (1994) 138 N.H. similar old assault committed in a somewhat sexual evi another does not constitute person, manner on an assault on the victim plan dence of a commit Imwinkelried, supra, 4:13, p. see also E. here”); “jurisdictions prosecutor allow (Criticizing [that] other crimes to introduce evidence of the defendant’s crimes; treat a show charged similar to the these courts similarity as of the existence sufficient evidence ing tendency espe so has been plan. of a The courts’ to do C. cially prosecutions.”); in sex pronounced offense Prescott, supra, 4.19.13, p. (Criticizing Tait & E. need offer prosecution liberal rule because “the not any proof any plan that the had scheme or defendant conceivably tie the misconduct uncharged might Isolated, unrelated mis with the misconduct. charged However, if is sufficient if sexual in nature. conduct merely is not sexual but violent charged misconduct apply prior the rule does not misconduct nature, rationally part of common is not admissible unless plan scheme.”).

Nonetheless, public policy we recognize strong to admit evidence of reasons continue to exist liberally in sexual assault misconduct more uncharged we in cases in other criminal cases. As observed than Merriam, State v. 669-71, supra, “[f]irst, generally, sex crime cases and in child molestation is committed sur- particular, cases in the offense often reptitiously, any in the neutral witnesses. absence

469 authorities prosecutorial courts allow Consequently, misconduct evidence prior in using latitude greater and witness credibility complaining bolster See, United difficulty proof. e.g., in the obvious to aid 1998); 883 Cir. 874, (10th 140 F.3d Castillo, v. States Rptr. 57 Cal. 81, 88, 2d App. v. 249 Cal. People Covert, 159, 177-78, Ill. 2d Donoho, v. People 220 (1967); [204 v. 387 King, 707 Commonwealth (2003)]; 788 N.E.2d Forbes, v. 248 State 472, (1982); 441 N.E.2d Mass. State, v. Daniel (1993); 640 A.2d 13 327, 331, 161 Vt. because of Second, (Wyo. 1996). P.2d 735 923 of the crime nature unusually pathological aberrant and misconduct, similar molestation, prior acts of of child misconduct, are deemed types to other opposed establish they tend to probative because highly to be for an otherwise necessary explanation motive State, v. see, Ward crime; e.g., horrible inexplicably State, Acuna (1963); 370 S.W.2d 425 878, 883, Ark. Forbes, A.2d 1233 65, 75, (1993); Md. 24,799 (1994), Rec. 331; Cong. see also 140 supra, support adoption Robert Dole remarks of Senator Rules of Evid 415 of the Federal rules 413 through example, a cases, for child molestation (‘[i]n ence32 exceptionally proba tends to be history of similar acts disposition of the an unusual tive because it shows in chil interest sexual or sado-sexual defendant —a ordinary people’); exist in simply does not dren —that jury probability assessing assist the falsely shocking accused of such has been defendant provides: (a) “In a criminal Federal Rules of Evidence Rule 413 assault, offense of sexual is accused of an case in which the defendant offenses of another offense or defendant’s commission of evidence of the any may bearing admissible, for its on be considered assault is sexual matter to which it is relevant.” provides: “In a criminal (a) Rules of Evidence of the Federal Rule molestation, child of an offense of which the defendant is accused case in offenses of of another offense or defendant’s commission evidence of the may bearing admissible, on for its be considered child molestation is any matter to which it is relevant.” Forbes, supra, 332-33; See,

behavior. see e.g., Depart- also 137 Rec. 6033 States Cong. (1991) (United summary proposed Compre- ment of Justice of 801 of hensive Violent Crime Control Act of which incorporated proposed through rules 413 415 of Federal inherently improbable Rules is that Evidence) (‘[i]t a person prior whose acts show that he is in fact a rapist or child molester would have the bad luck to be later hit with a false accusation of committing the same type person fortuitously of crime or that a would be subject multiple by false accusations a number of different victims’).” previously As this court has recog- nized, “when human conduct involves sexual miscon- duct, people tend in generally patterns to act consistent behavior, unlikely and ... it (although, course, is person falsely not that the same will impossible) be a number of different victims.” State accused Sawyer, supra, 279 Conn. 383. public policy

We conclude that these considerations limited militate in favor of recognizing exception prohibition on the admission of miscon- uncharged evidence in sex crime cases to duct prove that defendant had a propensity to in aberrant and engage compulsive criminal sexual behavior.33 We therefore claims, however, “many place The defendant heinous crimes take sight” special out of and that “the use of rules of evidence for sexual paternalism only perpetuate assault victims is a form of serves to sexist stereotypes testimony that a woman’s alone is an insufficient basis for a any authority sexual assault conviction.” The defendant fails to cite or to provide any analysis support and, therefore, claim we decline to T.R.D., n.18, review it. See State v. 213-14 942 A.2d 1000 (2008) (“We repeatedly required have stated that are not to review [w]e improperly presented through issues that have been to this court an inade quate Analysis, assertion, required . . brief. . rather than mere abstract abandoning properly. in order to avoid an issue failure to brief the issue . . . Where a claim is asserted in the statement of issues but thereafter only cursory receives attention in the brief without substantive discussion authorities, quotation or citation of it is deemed to be abandoned.” [Internal omitted.]). marks uncharged The defendant further claims that evidence of misconduct liberally should not be admitted more in sex crime cases because “mass of our well as a multitude courts, as join the federal propensity excep a similar states, recognize sister Roscoe, State v. See, e.g., assault cases. tion in sexual banc) (“Arizona P.2d 635 484, 491, (en Ariz. 910 exception to specific another recognized courts have ‘sexual aberra involving rule: other bad acts the general propensity the defendant’s are admissible to show tion’ denied, 854, 519 U.S. cert. crime”), to commit a similar State, Hamm v. 150, (1996); Ct. 136 L. Ed. 2d 96 117 S. C. (Hannah, 232 S.W.3d 463 647, 661, (2006) 365 Ark. ‘pedophile a recognized J., dissenting) (“This [c]ourthas approved court has [b], rule 404 where the exception’ to with the same or other of similar acts allowing evidence proclivity for helpful showing it is children when with person persons with a or class of specific act relationship. . . . has an intimate whom the defendant exception is that such for recognizing The rationale instinct helps prove depraved sexual evidence Tobin, States omitted.]); of the accused.” [Citation predators hysteria” concerning in innocent child resulted “would-be [has] years prison.” sup accused, spending persons unjustly In convicted Michaels, Super. claim, defendant relies on State port v. 264 N.J. of this aff'd, 299, 579, 616-35, (App. 1993), Div. 136 N.J. 642 A.2d 1372 625 A.2d 489 Jersey Appellate (1994), New Division of the Court of wherein the 115 counts of sexual assault because reversed the defendant’s conviction of coercive, leading suggestive questioned in a victims had been the child misplaced reliance on Michaels We conclude that the defendant’s manner. uncharged propriety admitting misconduct was evidence because only Moreover, uncharged misconduct in that case. evidence not at issue admissibility] requirements have been “once all other [for is admissible prejudice— relevancy, materiality, probative outweighs value satisfied — sufficient evidence for . . . that there is the trial court determine^] [and] prior act.” State Aaron jury v. find that the defendant committed Michaels, L., 798, 827, (2005). In a case such as 865 A.2d 1135 testimony undisputed coerced that the victims’ had been wherein it was Michaels, supra, questions”; State “extremely leading suggestive and/or 621; properly uncharged would be excluded either misconduct evidence of value, probative prejudicial outweighs its or because because its effect prior act. to establish that the defendant committed it is insufficient protection against prejudice “adequate Accordingly, unfair we conclude that State existing of our rules of evidence.” ... is afforded structures L., supra, v. Aaron 824. 528, A.2d cases sexual (R.I. 1992) (“[i]n involving assault, expanded excep this court list [has] [the] prohibition tions admission of general against [to uncharged prior to allow evidence of acts misconduct] disposition to show the defendant’s lewd . . . L., W. Va. ”); intent’ Edward Charles (1990) (“collateral 398 S.E.2d 123 acts or crimes may be introduced in cases child involving sexual perpetrator assault or sexual abuse victims to show the disposition victim, had a lustful towards the a lustful disposition disposition to children or a lustful generally, specific children, provided other such acts occurred reasonably close in time to rise giving incidents] Fed. R. Evid. indictment”); 413, 414; Alaska §§ R. (West Evid. 404 Ariz. R. Evid. 404 (b) 2007); (c) § § (West Cal. Evid. Code 1108 2007); (Deering 2004); 725 § Comp. Ill. Stat. Ann. (West 5/115-7.3 Ind. Code 2002); § Ann. 35-37-4-15 Iowa Ann. (Michie 1998); Code Sup. 701.11 La. Code Evid. Ann. art. (West 2008); 412.2 Tex. Ann. (2006); Code Crim. Proc. art. 38.37 (Vernon 2005); Reyes, see also State v. 744 N.W.2d 101 (Iowa developed half the states have 2008) (“[a]bout ‘lustful disposition’ ‘depraved exception sexual instinct’ which prior allows evidence of sexual misconduct involving children to be admitted into Peo evidence”); ple v. Donoho, supra, 204 Ill. 2d 175 (noting “courts [twenty-five] in additional states have broadened the exceptions to the ban on other-crimes evidence sex ual offense cases”).34

We caution, however, approach that “our does not vest trial courts with carte blanche to allow the state any prior to introduce sexual misconduct evidence an accused in sex crime against cases.” State Mer- clarify exception adopt today, We that the we like liberal standard pursuant formerly uncharged to which misconduct evidence was admitted plan exception, applies under the common scheme or to all sexual miscon duct, regardless age of the victim. riam, supra, First, 264 Conn. 671. evidence only if it is misconduct is admissible uncharged sexual propensity defendant had a prove relevant to that the aberrant and tendency type or a engage sexual behavior with which he or compulsive criminal Relevancy is established satisfying she is charged. pursuant pre- the liberal standard to which evidence viously common scheme or was admitted under the exception. evidence of plan Accordingly, uncharged defendant had a prove misconduct is relevant to that the tendency to in the crime propensity engage charged or a . . . only time; (2) if it is: . . . not too remote “(1) similar to the offense . . . committed charged; (3) witness.”35 upon persons prosecuting similar to the State v. McKenzie- quotation marks (Internal omitted.) Romero, Adams, supra, also 522; 281 Conn. see 481, 498, (2004) (“[w]e 849 A.2d 760 have inquiry upon indicated that this should focus each of rarely will factors, the three as a factor be dis- single positive”). misconduct is admis

Second, uncharged evidence only probative outweighs prejudi sible if its value “the invariably flows from its admission.” cial effect Merriam, supra, cf. United 671; v. LeMay, States 1018, 260 F.3d 1026 Cir. (9th 2001) misconduct admitted under (evidence uncharged subject proba to rule 414 of Federal Rules of Evidence under rule 403 of Fed prejudicial balancing tive versus denied, 1166, 122 eral Rules of cert. 534 U.S. Evidence), L. 124 In (2002). balancing S. Ct. 152 Ed. 2d propensity exception prohib scope to the rule The and contours of the adopt opinion iting uncharged misconduct that we in this the admission of unique jurisprudence concerning are in this state’s therefore rooted cases, uncharged and must admission of misconduct evidence sex crime Consequently, anticipate accordingly. we do not that our deci be construed today open floodgates uncharged miscon sion will to the admission of previously the common scheme duct evidence that was inadmissible under plan exception. prejudicial its against such evidence

probative value of mindful of the however, trial courts must be effect, admitted, is to be which the evidence purpose for jury to consider a defendant’s permit “to namely, child sexual abuse or acts in the area of prior bad propensity.” purpose showing molestation for the Benais, F.3d Cir. United States (8th 2006). prejudice of undue to to minimize the risk

Lastly, uncharged evidence of defendant, the admission of excep- propensity under the limited sexual misconduct accompanied by appro- an adopted herein must be tion jury.36 cautionary instruction to the priate we present case, facts of the conclude Turning to the uncharged evidence of the defendant’s that, although prove the exis- misconduct with N was inadmissible in the defen- plan a “true” common scheme or tence of prove mind, dant’s it was admissible tendency sexually propensity had a or a defendant ability with women of limited mental young assault supervisory he had whom he worked and over whom beyond scope precise an instruction is content of such however, regarding present appeal. note, following instruction We that the uncharged of evidence of misconduct under rule 413 the admission Evidence; opinion; approved 32 of this has been Federal Rules of see footnote Appeals: case in which the the Tenth Circuit Court of “In criminal compulsive exhibiting [charged with a crime aberrant and defendant is behavior], the defendant’s commission of criminal sexual evidence of may be considered for another offense or offenses ... is admissible and However, any bearing of a to which it is relevant. evidence its on matter prove guilty prior its own is not sufficient to the defendant offense on you charged in Bear in mind as consider this the crimes the [information]. times, proving government burden of evidence at all has the [that] charged in each of the elements of the offense the defendant committed you any [information], trial for I remind that the defendant is not on act, conduct, (Internal quotation charged offense not in the [information].” United, McHorse, 889, (10th Cir.), omitted.) 179 F.3d marks States denied, (1999); 528 U.S. 120 S. Ct. 145 L. Ed. 2d 280 see also cert. al., Jury Sand, Loughlin W. Federal Instructions- 1 L. J. Siffert & et Modem 2007) (Matthew Bender 5-27. Criminal authority. Appellate properly determined, As the proximate defendant’s misconduct with N was time to the charged crime because both offenses occurred in 2000 and v. DeJesus, supra, 2001. State App. Conn. 60. Additionally, “the similarities between the assault on the victim and the assault on N were sufficient to warrant the introduction into evidence the uncharged misconduct. The women were similar in age appearance. and Both suffered from a mental disability and had a difficult time new learning skills. The defendant had hired both the victim and N and was aware of their mental limitations. The defendant’s assaults of the two women occurred in a similar manner as well. He used supervisory authority his to lure the women into an isolated, empty upper room on the level they of the store while were in pursuant the store their employment proceeded duties. He then to assault Id., them.”37 60-61.

Because the misconduct uncharged evidence was pursuant admitted plan to the common scheme or prejudice The trial court minimized the risk of undue to the defendant by issuing cautionary jury: following “Remember, instruction to the I you might purpose told that certain evidence be admitted for one but not admitted; first, another. This evidence has been to demonstrate or show a pattern acts; characteristic method or in the commission of criminal second, alleged prior on the issue of the defendant’s intent. The evidence of part charged misconduct the defendant toward is not of the offense [N] you you alone, gentlemen, in this case. It is for ladies and to evaluate testimony case, testimony, testimony including in this all of the you whole, part, to determine whether credit it in or not at all. You are expressly prohibited you just using from this evidence that have heard of prior alleged misconduct as evidence of the bad character of the defendant tendency general proof or as evidence of a to commit criminal acts in or as charged being that he committed the acts in this case for which he is prosecuted. any, you weight, give if choose to to this evidence is up you. your job jurors, That is to evaluate the evidence. you prior you may alleged “If find this evidence of misconduct credible purpose assisting you determining consider it for the sole and limited pattern engaged whether the defendant has in a characteristic method or charged part in the commission of criminal acts of which the conduct is a and on the issue the defendant’s intent.” we

exception, propensity exception, rather than the claims must address the issue harm.38 defendant solely was the of this harmful that admission evidence the would use evidence jury of the risk that the because propensity had a or a ten- to infer that the defendant we dency to the sexual assault. As commit crime of however, explained body opinion, in the of this have jury the purpose properly is the for which precise we Accordingly, could have considered the evidence. evidentiary was impropriety the conclude harmless. sum,

In sexual misconduct uncharged evidence properly may be admitted in sex crime cases to establish tendency propensity the had a or a defendant in and compulsive aberrant criminal sexual engage the trial finds that evidence (1) behavior if: court such in that too charged is relevant crime it is not and time, remote is similar to the offense charged upon persons prosecuting is committed similar to witness; proba- trial court concludes that the (2) value outweighs prejudicial tive of such evidence its relevancy evidence, In of such assessing effect. probative against prejudicial its value its balancing evidentiary nature, improper ruling an “When is not constitutional demonstrating the defendant the burden of that the was harmful. bears error recently noted, ... we error when As have nonconstitutional is harmless substantially appellate did an court has a fair assurance that the error not improper . . . affect verdict. admission of [W]hether [the evidence] particular depends upon factors, harmless in a case a number of such as importance testimony prosecution’s case, of the witness’ in the whether testimony testimony . . . of the on material was cumulative witness points, permitted, . . . the extent of cross-examination otherwise strength prosecution’s importantly, . . must overall of the case. . Most we impact [improperly examine the on the trier of evidence admitted] present . and the the trial. . . involves the fact result of Because case evidence, improper uncharged admission of misconduct the most relevant impact strength to be are the of the state’s and the factors considered case improperly (Citations omitted; evidence of fact.” admitted on the trier quotation omitted.) Randolph, supra, Conn. internal marks 363-64. by the trial court should be this court’s

effect, guided and contours of prior precedent construing scope of pursuant the liberal standard to which evidence under previously misconduct was admitted uncharged plan exception. Lastly, prior the common scheme or to evidence of sexual misconduct admitting uncharged propensity exception adopted herein, under the the trial jury provide appropriate court must with an caution- ary proper instruction use of such evi- regarding opinion. dence. See footnote 36 of this Appellate Court is reversed with judgment respect to the direction to render of judgment guilty not of in the first under count four of kidnapping degree the information and the case is remanded to that court with direction to remand the case to the trial court for count; a new trial on that is affirmed in judgment respects. all other

In opinion VERTEFEUILLE, NORCOTT and Js., concurred.

PALMER, J., join, part I concurring. agree with, I majority opinion application of concerning v. Salamon, State principles articulated in 287 Conn. I (2008), present 942 A.2d 1092 case. also portion part majority opinion with that II of the agree admissibility with the standard of dealing uncharged sexual misconduct evidence in sexual assault cases. I with Although the threshold determination agree majority part opinion II of its that this court modify retains the the law of change as embodied in the Connecticut Code of Evi- evidence I dence reach that result a somewhat differ- (code), majority. primarily I separately ent route than the write for that reason.

I majority opinion, part II of the addressing Before majority join I however, briefly that, although I note in State Sansever defendant that the concluding ino, not entitled A.2d 1156 (2008), extremely I also believe it is acquittal, judgment presented the factual scenario unlikely that, because of will be able to adduce evidence case, the state kidnapping light support conviction sufficient recently announced in this court of the factors Salamon, supra, Nevertheless, Conn. 548. in Sansev majority explained, has the defendant as the erino his conviction not was entitled to a reversal of evidentiary insufficiency but, rather, be because the kind receive an instruction of cause he did not Salamon.1 contrary to this Consequently, mandated in Sanseverino the state barring court’s determination retry in that case for the the defendant seeking from has the to decide kidnapping, right the state offense for that offense. attempt whether to to seek a conviction evidence, not ad indicated, I have unless there As support would trial, finding at the first that duced in offense has been construed kidnapping, as that Salamon, obtain a kidnapping the state will be unable to presumed that, if the Indeed, it must be conviction. retry will not seek to evidence, lacks such it state however, rests decision, for That kidnapping. defendant by the state, subject appropriate oversight with the apparent no matter how it Consequently, trial court. trial, of the first may seem, on the basis of the record kidnapping, the crime of that the state cannot establish Sanseverino is a reversal of appropriate order emphasis jury kidnapping the trial that the instruction on It bears perfectly binding prece gave in Sanseverino was correct under then court in Sanseverino was this court. We concluded that the defendant dent of only kidnapping of this of his conviction because entitled to a reversal Salamon, interpretation kidnapping statute in which this court court’s of the day that it decided Sanseverino. the same decided on trial, conviction and a for a new defendant’s remand acquittal.2 rather than a judgment

II In that this court concluding continues to have responsibility ultimate for the law of evi- determining through adjudication, despite dence common-law promulgation of the code

Court, majority concludes that the language respect code is with ambiguous to whether the judges of the Superior Court intended to oust this court from justice dissenting asserts that it is unfair to the defendant in Sansev present opportunity erino and the in the defendant case to allow the state the retry justice’s First, dissenting them. I do not share the view. the defendant present in Sanseverino and the defendant in the case the benefit received holding though of our in Salamon even neither defendant raised the claim concerning kidnapping They statute that we addressed Salamon. only holding appeals happened benefit from our in Salamon because their pending Second, import to be when this court decided Salamon. and more antly»by permitting the state to determine whether to seek a retrial in San present case, place severino and in the we do not the defendants in those jeopardy. Rather, indicated, presume cases in unwarranted as I have we must if, Salamon, light decision in our the state does not believe that retry it has sufficient evidence to one or both of those defendants for kidnapping, circumstances, however, then the state will not do so. Under the simply responsibility it is not our to make that decision for the state. strongly disagree dissenting justice’s I also with the criticism of our deci- grounds. sion on stare decisis was than Sanseverino decided less two months and, consequently, any ago, there cannot have been material reliance on it. Cf., Wilton, e.g., Conway 653, 658, (1996) 680 A.2d 242 justified because, alia, (explaining that doctrine of stare it decisis is inter predictability ordering stability “givjing] “allows for in the of conduct” and continuity Indeed, justice law”). dissenting acknowledges, to our case the as must, hardly applicable when, Sanseverino, she that stare decisis is as in pending. a motion for reconsideration of our decision in that case is More- over, acknowledge it is far better for this court to an error and to correct promptly prece- rigid than to refuse to do so based on adherence to flawed id., Thus, present dent. See 659. to the extent that this court’s decision clarify rejecting case serves to that our decision in Salamon the defendant’s judgment acquittal ultimately claim of entitlement to a was not fact contrary bound, despite language might suggest certain in Salamon that conclusion; Salamon, supra, 548-50; that clarification see State Conn. entirely appropriate. is of evidence. respect to the law role with its historical pur- of the stated majority reviews one essence, In and namely, promote growth “to code, of the poses interpreta- through the law of evidence development judicial making rule through ode and tion of the [c] proceedings and may be ascertained that the truth end 1-2 and con- (a); Code Evid. determined”; § Conn. justly rule “judicial and “inteipretation” cludes that the terms majority then turns The ambiguous.3 are making” history and considerations, including extratextual that the code “was code, and concludes purpose of the com- supersede displace, supplant not intended via evidentiary development their rules or mon-law was but, rather, simply adjudication, common-law and authorita- comprehensive as a intended to function evidentiary for the ease and law tive restatement community.” majority also the legal convenience of Supe- of the code, judges under the that, recognizes evidence code of the Court, upon rior recommendation revisions adopt are authorized to committee, oversight developments common-law “reflecting to the code to resolve the code evidentiary law, clarifications [to] in the absence additions to the code ambiguities common-law rules.” governing re- majority’s conclusion I with Although agree code, per- I am not scope of the the overall garding “judicial rule “interpretation” terms suaded that the code, “ambigu- in 1-2 are (a) as used making,” “interpretation,” (a) majority’s view, as used in 1-2 In the word reasonably code, ambiguous because broadly descriptive may of the common- intended it “to be construed have evidentiary historically pursuant adjudicative law to which law function merely developed” the construction or grown and not limited to has “judicial majority explanation that the term the code. The also concludes reasonably may making making” ambiguous be because such rule rule is adjudication case-by-case, rather than the common-law to mean construed acting by Superior judges promulgation the of the Court of court rules group. any ous” in sense meaningful of that term. As I see it, the code ways identifies two in which it is to be modified: the through construction of the code, terms of the and through the authority rule-making the of the judges Superior Court, acting body. as a For the reasons that follow, however, I also conclude that the of the judges Superior Court, in promulgating code, the were not attempting strip Supreme the Court of its traditional common-law role regarding the growth develop- ment of the law of evidence.4 In other words, although prescribes code the manner in may which it be judges modified Superior Court, it does not purport to occupy the field Supreme displacing Court as the authority ultimate respect with law of evidence. Read in this light, purpose of the code, as set forth in 1-2 plain (a), perfectly reasonable: Superior of the judges Court shall interpret the code, may modify the code via the exercise of their rule- making function, clarify its terms or to fill in gaps that may exist the code. in the Nothing code, however, purports to limit the traditional power Supreme of the Court concerning evidentiary state’s law.

I read the code in this manner because I do not believe that the judges Superior power Court have the to supplant the Supreme judicial Court body as the ultimately responsible for determining the law of evi- dence. Supreme Court has exercised its common- authority law in this realm since the court was created centuries ago, prior adoption to the of the constitution of 1818. Supreme Because the Court is a constitutional court, there can be no doubt its common-law 4 I likewise do not believe that the intended regard to limit the Court in to that Appellate court’s common- adjudicative law function vis-á-vis the law of evidence. I refer only for ease of Supreme Court, and because the however, reference, common- law role of the Court with to the rules Supreme of evidence dates respect back more than 200 years; by similar role of the contrast, Appellate Court dates back to its creation in only 1983. 482 authority over the

authority, including its common-law constitutionally light is rooted. In of evidence, of law of I how the fact, cannot see highest this possess power to divest state’s Court authority. of a measure of that significant court would be inconsistent with Such conclusion also authority the ad- supervisory inherent over this court’s authority encom- justice.5 course, ministration of Of supervision to and control passes power exercise See, Book 60- appeal. e.g., on Practice proceedings of proceedings control of the on supervision 2 (“[t]he appellate jurisdiction having shall be in the court appeal earlier, appro- is or if appeal filed, from the time the to “sus- (authorizing Practice Book 60-3 court priate”); provisions any of these pend requirements on motion of a practice] particular rules case [of motion”). or on its own This court’s inherent party clearly authority, however, transcends the supervisory authority appeal. on It extends manage cases proceedings the manner in which are supervision of Thus, this court although conducted in our trial courts. authority supervisory sparingly; e.g., State exercises its A.2d Smith, 205, 241, (2005); v. Conn. 881 160 it 275 rules intended to lower “adopted guide nevertheless has aspects in all justice courts the administration quotation marks omit- process”; (internal the criminal 386, A.2d 381, v. 261 Conn. 802 836 ted) Valedon, State 5 stated, Supreme repeatedly Court and As this court has both the supervisory Appellate “possess an over the adminis inherent justice. Supervisory powers . . to direct trial . are exercised tration adopt judicial procedures that are that will address matters courts only seriousness, integrity particular but not for the of a trial also utmost perceived judicial system . . . as a whole. [The for the fairness of the ordinarily powers Supreme supervisory to enunciate [its] Court] invoke[s] preferable constitutionally required that is but that a rule not [it believes] omitted; quotation policy.” (Citation omitted.) marks as a matter of internal 577-78, denied, Ledbetter, 534, (2005), A.2d 290 cert. 881 (2006). L. Ed. U.S. 126 S. Ct. 2d 537 Roth arena, and in the civil as well. (2002); See, e.g., Weston, 202, 231-32, Conn. 789 A.2d (2002) supervisory authority to burden (exercising establish Ireland Ire- proof nonparent of v. cases); in visitation land, 413, 432-33, 246 Conn. 717 429, (1998) A.2d 676 supervisory authority to (exercising adopt factors to be in considered best interests of child in determining Auto- v. relocation); Bennett involving parental cases mobile Ins. Co. Hartford, 795, 806, 646 of authority A.2d (1994) supervisory to (exercising that, in direct cases insurance insur- involving disputes, way ers raise certain issues policy by of limitation of special importance the defense). Moreover, with which supervisory authority this court views its is reflected in on that, occasion, the fact at least one the court has prohibited parties’ the procedure imposed waiver the under Patterson, authority; see Conn. 385, 645 A.2d 400, (“[W]e now decide under (1994) power our supervisory that henceforth the trial judge continuously present must be to oversee in a voir dire requirement criminal case. Because this imposed is pursuant this supervisory powers, court to its the requirement party cannot be waived either future in cases.”); may criminal even constitutional though rights be waived.

I judges Superior do not believe that the supervi- have to power trump this court’s inherent sory authority over justice the administration of courts, trial generally exercise of which is reserved implicate for matters of the greatest seriousness that judicial system fairness as a integrity opinion. Indeed, whole. See footnote 5 of this if the power, Court have that this then truly possess supervisory authority court does not over the trial at those all, courts because courts would be authority. free to this assertion override court’s of its I am conclude court unwilling therefore that this only our trial courts supervisory power over

possesses acquiesce our exercise that those courts extent limit the power result that would so of that —a justice in the administration of over the court advisory rather as to render role trial courts supervisory.6 than jus- authority over the administration of

Supervisory including, appellate generally, courts tice inherent Thus, as Supreme United States Court. course, States, in McNabb United U.S. that court stated principles 87 L. Ed. 819 (1943), 63 S. Ct. “[t]he admissibility of in federal crimi- evidence governing ... derived trials have not been restricted those nal In the solely the from [United States] [constitution. supervisory authority over the adminis- exercise of its . . . justice in federal courts tration of criminal the very has, from the Supreme] States Court th[e] [United rules evidence history, of its formulated beginning . . . prosecutions. in criminal applied to be federal in rules of evidence for federal formulating And such the has been considera- guided criminal trials [c]ourt justice eviden- tions of not limited to strict canons of tiary Id., 341. (Citations omitted.) relevance.” recently Supreme Court reiterated this United States ... law is clear. principle, stating: “The Th[e] [United supervisory authority has over Supreme] States Court courts, may authority that to the federal use [it] procedure are bind- prescribe rules of evidence that States, tribunals.”7 Dickerson v. United ing those 6Indeed, precedent supports no or sister that I have found federal state authority high a and a court. such a division of as between court subordinate authority Although Supreme regard of the United States Court in this superior courts, “Congress of the lower federal retains the ultimate to that any authority modify judicially or set aside created rules of evidence procedure required that are not States] [United [constitution.” States, 428, 437, 2326, Ed. 2d Dickerson United U.S. 120 S. Ct. 147 L. that, state, (2000). has “the rules of evidence This court observed exclusively judicial regarded . as . . . have . . been within the never period years, legislature has enacted various statutes domain. Over a prevailing modifying common law .... These the rules evidence at 2326, (2000). 120 S. Ct. 147 L. Ed. 2d 405 U.S. the ultimate to determine state, well, In this has resided in this court since its the law of evidence persuasive proffered reason has been inception, and no Superior of the support judges the contention that the authority for them- power Court have the to assert that that the Consequently, presumed selves.8 it cannot be Superior purported of the Court to do so when judges they Indeed, I with the adopted agree the code 2000. if Court had majority that, Superior of the judges purported accomplish such a radical —and constitu- tionally extremely unlikely it is that suspect change, — they any public have discussion would done so without Moreover, adoption of it in advance of the code. presented judges the fact that the code was Superior approval Court for their on the basis merely compilation it was common existing supports law of evidence the conclusion that strongly represent- Superior treated the code as judges dramatically quo, creating the status and not as ing procedures determining new and different set of for the law of evidence in this state. may argued

It be authority by have asserted a similar virtue of Court accepted by challenged changes have been our courts and have never been James, violating principle separation powers.” State v. 211 Conn. the of of 560, (1989). 426 560 A.2d 8 part (a), provides in that the General Statutes 51-14 which relevant Superior Supreme Court, Appellate judges Court of the the Court and the modify adopt may repeal promulgate time to time or “shall and and from practice procedure judicial pro regulating pleading, and rules and forms authority they ceedings in courts in which have the constitutional to make authority rules,” contrary. (a) is not to the Section 51-14 codifies the inherent Dattilo, 488, 493, courts; see, e.g., In re 72 A.2d of the various 136 Conn. statutory authority, (1950) (“[e]ven lacking it would be well within the 50 Superior power judges of the Court to make rules which inherent of the orderly, expeditious just bring determination of the would about an authority says nothing issues”); court about the relative of one such vis-a-vis another.

486 procedure of contained of the rules promulgation their appar- It is not practice). Practice Book (rules in the rules are on me, however, binding that those ent to prudential for Although, a matter law9 this court as fit to very unlikely that this court would see reasons, it is supervisory its practice rule of in the exercise of alter a justice dissenting cases in which this court has cites to several modify practice adopted authority change it lacks to rules of indicated that by Superior Oakley judges v. on Human Court. See Commission Opportunities, 28, 30, (1996) (“[djespite Rights 237 Conn. 675 A.2d 851 & question], legitimacy the concern the concern raised the certified [of [the] process appellate through review that cannot be addressed is one appropriate provisions requires change in the either of the General but Johnson, 59, 61, Book”); v. 228 Conn. Statutes or of the Practice State practice clarifying (1993) (“[although a amendment the rules of A.2d293 [to] desirable, problem might . . . well be this court to address the illuminated Superior Court”); v. sit as the of the State does not [r]ules [c]ommittee n.11, (“We Jennings, (1990) A.2d 915 do not sit to 216 Conn. utility decide the or need for written instructions in the Connecticut courts. decision, request such a his is more To the extent that the defendant seeks Kupstis properly [cjommittee Superior Court.”); directed to the of the [r]ules 435, 437, problem Michaud, (1990) (“[t]he illumi 576 A.2d practice litigation change in the that this nated calls for a rules enact”). acknowledge language in these cases would court cannot I that authority appear support lacks the ultimate to the contention that this court modify adopted by Superior practice judges of the Court. a rule of authority analysis, however, persuasive Upon are not for closer these cases decisions, Kupstis, proposition. Oakley, that Three of the four Johnson each, summary, per opinions consisting pages were curiam of one to two any analysis of the relative of this court and and none contains most, Superior concerning adoption practice. of the rules of At these reflect the court’s understandable reluctance to override decisions practice adopted by Superior Jennings, Court. In rules of rejected defendant, case, Jen the fourth this court the claim of the Gerald rights declining nings, the trial had violated his constitutional court jury jury provide copy instructions. See with a written of the court’s Jennings, supra, response Jennings’ 664-65. In assertion that jury had utilized written instructions and that other state and federal courts comment, practice we observed that had received favorable review and policy properly argument his was “more directed” to the rules committee request Id., Significantly, Jennings Court. 665 n.11. did not authority. express supervisory Although invoke its I no view this court jury instructions, written I have no doubt that this court on the merits of authority, supervisory power, require its to that written instruc has the under jury. therefore, inapposite. provided Jennings, tions be to the

487 I this court lacks the authority, do not believe power Indeed, position to do so. once this is the again, Supreme that the United States Court has taken con- authority the of that court and the lower cerning relative respect federal courts with of rules promulgation procedure. Although of “a district court has discretion necessary carry are adopt local rules that out the . . . conduct its business United States [the Supreme may supervisory exercise its inherent Court] power to ensure that these local rules are consistent principles justice.” with the omit- right (Citations ted; internal quotation omitted.) marks Frazier Heebe, 641, 645, 2607, 482 U.S. 107 S. Ct. 96 L. Ed. 2d supervisory authority to invalidate (1987) (invoking residency certain requirements contained local rules of United States District Court for Eastern District Louisiana).10 practice I therefore view the rules of way the I code, namely, same that view the as a set of rules adopted Superior of the Court that judges proceed the maimer in which cases are to govern our trial adjudicative courts. Under its common-law authority, however, any this court is the final arbiter of dispute parties interpretation between the regarding Similarly, court, by of those rules. virtue of its authority court, inherent as the state’s ulti- highest mately power infrequently may retains the it —however choose to invoke it—to establish the rules that govern justice in the administration of courts this state.11 contrary Thus, dissenting justice, to the assertion of the the United Supreme expressly possesses power States Court has held that it inherent procedure adopted by judges to invalidate an otherwise lawful rule of rule-maldng of the United States District under their inherent author Court ity. Heebe, supra, See Frazier v. 482 U.S. 645. history concurrence, As Justice Zarella underscores in his of our history practice rules of and the of our law of evidence are not identical. I former, however, including legislative delegation do not view the the 1807 authority they prior rule-maldng to our as were constituted courts 1818; (1808 Rev.) (1808 statute); see General Statutes tit. c. Superior demonstrating Supreme that the Court is subordinate to the respect authority. contrary, adoption with from until the to that To constitution, judges Supreme of the 1818 Court of Errors and same, and, therefore, Court were one regarding them their relative over the admin distinctions between justice practical importantly, significance. were of little More istration of

488 the reasons, judges I conclude that the foregoing

For an adopt to Court did not undertake Superior of usurp this court’s his- purported to evidence code that authority over the constitutionally based torical majority’s with the I agree of evidence. therefore law that this court opinion II of this part in determination adoption of the authority following the retains such maj result that the or- I concur in the Accordingly, code.12 part opinion. in II of its ity reaches SULLIVAN,J., joins, concur- ZARELLA, J., with whom in majority reaches I in the result that the concur ring. is entitled to opinion I its that the defendant part of degree of in the first charge kidnapping new trial on the jury instruction. See improper the basis of an on Sanseverino, 608, 649-50, 949 A.2d is, most, ambiguous notes, at with Zarella also the 1808 statute as Justice Supreme authority, any, judges respect of the the division of if between judges Superior Soon after the constitu- Errors and the of the Court. Court of Supreme adopted 1818, however, legislature directed the tion was Superior promulgate applicable to the Court. See of Errors to rules Court General supreme (1821 Rev.) 21, (“[t]he court of errors Statutes tit. [is] practice, regulation hereby empowered for the of to institute such rules of courts, counties, court, superior in the several as shall be and of the said justice”); administration of see also Public deemed most conducive to the Supreme (providing “revise Court of Errors shall Acts the rules of c. legislative recognition practice” necessary”). it This as “deem[s] authority Supreme Errors and the between the Court of of the division of Superior respect practice, after the constitution with to rules of so soon Court former, adopted, strong, conclusive, that the and not is if not evidence was the the basis for highest is subordinate to the the the authority light latter, always rules. In retained ultimate over those any countervailing provisions, foregoing historical and in the absence power possesses limiting as the state’s that this court the inherent authority court, persuasive concluding that that I see no reason for authority Superior Although Court. necessarily require present Supreme decide whether not this court to case does authority possesses Superior ultimate over Court or the Court closely practice, it is related to I address the issue because so the rules of the issue of ultimately Supreme whether the Court or the determining responsible state. the law of evidence for may justice that, “[s]adly, dissenting in this case states the result The contemplated through previously legislature action to follow on motivate the supervision body . .” bring of that . . rules of evidence under the explanation concern, justice provides dissenting for this and I know no judicial preference legislature, none. In accordance with subject regular promulgated an code that is itself has evidence branch (2000) Code of Evidence and revision. See Foreword to Connecticut review judicial respect p. having legislature branch with to fit to iii. The deferred to why legislature endeavor, imagine now would see I cannot this reverse course. In present any event, case the decision of this court in the J., I (2008) (Zarella, dissenting). also with the agree majority’s II part respect conclusions with to this modify court’s to change the law of evi- admissibility dence and the misconduct uncharged evidence in sexual assault separately cases. I write for two reasons.

First, my I maintain position that the direction that this court has taken recently respect with to our law is kidnapping supported by statutory not the clear language defining that crime and other restraint-based offenses. See State v. Salamon, 509, 576, A.2d 1092 (2008) (Zarella, J., part in and concurring in dissenting part). Therefore, I would remand the case jury for a new trial so that the may be instructed prop- erly on the crime of kidnapping accordance with the conclusions in my articulated and concurring dissenting opinion in I optimistic Salamon. remain that the legisla- ture will take action questions to resolve the numerous created jurisprudence. court’s recent kidnapping Second, respect with analysis part II of the majority opinion, question which resolves the that we certified as to any whether this court or court has authority change modify to a rule of evidence the Connecticut Code of Evidence I (code), see no reason interpret to the language of the code to resolve this particular Rather, issue. I conclude authority that the evidentiary this court to review rulings by Superior the Court existed at common law incorporated and was into the 1818 constitution. I Furthermore, suggest that majority’s the question places resolution of this too emphasis much on the intent of determining Supe- thereby rior Court judges, possession that indicating such an dispositive intent could be inquiry. of our This emphasis, coupled majority’s repeated with the refer- ence to this court’s “inherent” and “constitutional” authority, unnecessary creates ambiguity as to the legislature cannot rest on the unsubstantiated concern that the nevertheless may elect to do so. authority over scope Superior of the Court’s actual law of evidence. to majority attention deter- significant devotes purpose language expressing whether

mining ques- and to the unambiguous of the code clear of the tion of “whether the judges authority appellate intended abrogate the law via develop of evidence change courts .” adjudication . . . case-by-case (Em- common-law phasis history adop- added.) recounting After purpose, majority and its observes tion of code . . “history support does not conclusion . that the code was intended to divest this court its develop the law of change inherent case-by-case adjudica- common-law through evidence analysis I this (Emphasis original.) suggest tion.” that unnecessarily fact. of the simple Regardless clouds conclude, Superior judges, of the Court I like intent Superior the of the Palmer, judges Justice that Court authority possess do not under our constitution to authority its to change divest this court of inherent develop p. the law of evidence. See 485 of Justice and authority opinion Palmer’s ultimate to concurring (“the the of has resided in this determine law evidence court inception, persuasive its and no reason has been since proffered support judges to the contention that the of have to that Superior power the Court the assert author- ity themselves”). for unnecessary repeat for me the

It is to historical under- my they of conclusion because are well docu- pinnings opinion. accurately in the majority majority mented that, common law of this observes the state “[u]nder prior 1818, under common law of England, to the authority over rules standards gov- the ultimate the and admissibility of evidence rested with the erning accurately noting court of the state.” After that highest authority final and over the binding “this court had law of to prior 1818, [noting evidence this] authority of Court Supreme common-law and the Superior fifth, Court was codified in article 1818,” majority stops constitution of short of con- judges Superior that the cluding have no authority under our constitution to alter this relation- ship. Rather, majority simply that it “ques- asserts Superior whether the Court have tion[s] authority adopt constitutional code of evidence promul- is inconsistent with the legal principles gated by court, this or to power divest this court its develop change the law of evidence via case- by-case I adjudication.” puzzled by majority’s am failure to declare that lack of constitutional author- ity is clear. hand, majority expresses On the one opinion Superior authority its that the ques- Court’s but, hand, that, tionable on the other asserts “under fifth, constitution, article the state it prov- is the ince of court, rather than the Court, ulti- ” mately to determine what the correct view the law is. (Emphasis majority Footnote opinion. 27 of the added.) my Such vacillation, opinion, unnecessary creates confusion as to the division of within the judicial branch under the state constitution. depart

Additionally, I from the views Justices Katz properly Palmer that the code be analogized can our practice. rules of Justice in his Palmer, concurring opinion, that he would that suggests conclude this court authority practice has ultimate over the rules of as well as evidence law virtue of its supervisory inherent powers. See of p. opin- Justice Palmer’s concurring ion of practice code evidence of (likening to rules that court of asserting disputes is final arbiter over provisions in code and rules practice). Likewise, of Justice Katz, in her states that dissenting opinion, there principled is “no rationale” for treating rules of practice differently. and the code of evidence Further- Supe- of the

more, judges Katz insists that Justice “[t]he in the exercise of adopted . . . the code rior Court authority in rule-making unquestioned their heretofore clearly in positions These are procedure.” matters of prem- both another, however, one as are conflict with evolution of on failure to different recognize ised a evidentiary law. practice the rules of My major- research, well as that conducted of practice of the rules ity, reveals that the genesis law evidentiary of our development differs from the authority Court over time and of major- separate each and distinct. The respect with law, ity correctly that, evidentiary observes “[u]nlike final and binding over which this court has exercised inception since its adjudicative authority more than years prior 1818, Supe- . . . of the judges ago rules adopt governing rior had the procedure . . . .” practice and pleading, Assembly passed Significantly, 1807, the General provided: in 1808 “And a law was codified and that superior it That the enacted, be further supreme constituting errors, court when court, of any purpose, be, met hereby are they empow- for practice of for the ered, regulation to institute such rules errors, superior and of the court said court circuits, as shall be deemed most condu- respective justice.” ad- (Emphasis cive to the administration 15, 2 42, Statutes tit. c. ded.) (1808 Rev.) (1808 General through The 1808 remained in effect statute statute). 1818, of our constitution. In adoption and the state authority by rule-making contrast to this delegation statutory his- Assembly the General no similar tory evidentiary Rather, from the exists law. regarding colony’s adoption time Connecticut the com- code was England mon law of until when the first consistently was adopted, product our evidence law adjudication subject appellate of common-law authority initially Assembly of the General since and, Supreme Supreme of the Court of Errors and the By Court. our laws of evidence as akin to rules treating my practice, colleagues fail to credit these histori- cally significant body differences in the of each origins rules, as well as the importance of these differences judicial body in determining authority. with ultimate A side effect of appears this to be Justice Palmer’s authority conclusion that this court has mod- change, ify practice, or enact a rule of a conclusion that I suggest premature in of the of the light language 1808 statute present the fact that the case present does not authority to this court’s challenge over the rules of practice. Unlike the clear authority constitutional this court to be the final and arbiter over evi- binding law, presents dence the 1808 statute an as ambiguity possesses authority what corut the final over the practice. rules of At a minimum, the 1808 statute makes authority it clear that the practice enact rules of was Superior vested of the judges serving Court some capacity, and, ultimately, authority was incor- porated into the state constitution in 1818.

I suggest, however, that the 1808 statute does not dispute resolve a unambiguously could arise with respect Superior to whether the of the judges Court or the Supreme Corut have final over the rules practice applicable to trial courts. At the time that the 1808 statute was passed, and after the constitution adopted was the judges Superior of the Court only sat not as trial but also as the judges judges Supreme Court of Errors. Therefore, promul- the rules Superior pursuant Court gated to the 1808 statute capacity could have been in their trial promulgated as capacity or in their judges appellate judges. See v. Jaekle, 704, 716, Kinsella 475 A.2d 243 only act “mandated that (1984) (1806 . . . Supreme Court would serve on the 494 statute to in the 1808 Also, the reference Errors”).

of broadly be construed any purpose” could “or met for Court authority Superior judges of the the encompass regardless practice generally, rules of promulgate Supreme the as they sitting judges were whether questions these I admit Although of Errors. Court I reiterate that resolution history fascinating, are to our day. they is for another present ambiguities of the Code of Evi- The Connecticut J., dissenting. KATZ, rules of judicial general codification dence (code) rules are the functional application. These prospective Superior Court, of the equivalent judges of laws. judges court and the justices of this a title that the code in the hold, adopted also Appellate Court unquestioned rule-making their heretofore exercise of Nonetheless, procedure. authority in matters of adoption of the that, “despite the majority1 concludes Court, appellate Superior judges code authority develop state retain the courts of this case-by-case com- of evidence change through the rules In one fell adjudication.” added.) (Emphasis mon-law majority has eviscerated the force swoop, the “evidentiary monarch”; C. itself the code and crowned Ed. 2008) Connecticut Evidence Prescott, (4th Tait & E. at make to the code 1.3.2, p. 19; changes entitled to purview of the my view, In it is the exclusive will. committee, the rules commit- oversight code evidence ultimately the Superior Court, tee of the to make to the code.2 changes 1 opinion addressing Although part Rogers’ the effect Justice II of Chief court, plurality only plurality garnered I refer to her of this of the code consistency majority throughout opinion for the sake of on that issue as the opinion. dissenting this Although our lacks the to overrule I conclude that court prior setting the admission of forth a more liberal standard for case law code, that case law was codified into acts in sex crime cases once bad adopted my in the first not have this rule view that we should I reiterate Merriam, 617, 679-88, (2003) 835 A.2d 895 instance. See State v. Kulmac, 79-88, J., (Katz, A.2d 887 State dissenting); Conn. I majority’s also with the conclusion that disagree this case should be remanded for a new trial on the Sanseverino, that kidnapping charge Conn. 949 A.2d 1156 (2008), should be overruled majority’s to achieve the intended outcome. In so con- cluding, majority apply analytical has failed to v. Salamon, State in 509, framework 287 Conn. A.2d 1092 (2008), which dictates directing judgment acquittal on the for kidnapping charge defendant, DeJesus, Carlos in of the light presented evidence to jury in this case. I Accordingly, respectfully dissent.

I majority The posits why four reasons this court is ability not constrained in its modify to overrule or rule of evidence despite the fact that the of the judges Superior Court have codified that rule into the code: (1) it is clear the stated “Although purpose of the [from code 1.2 (a)] Superior under that the of the judges Court intended the law develop of evidence to and grow ‘interpretation the future of the through [c]ode’ ‘judicial through making,’ rule of these meaning two terms ... is unclear”; history only of the (2) code provide “reflects that was intended to the bench [it] and the bar with a concise and authoritative restatement of the state’s common law and statutory identified rules evidence”; express there is no (3) evidence in the history text of the code or its “support to the conclusion .. . that the code was intended to divest this court of its authority inherent change develop the law of (1994) {Katz, J., Moreover, dissenting). troubling majority I find it that the essentially maintaining prior permitting has rationalized a rule admission of particular pedophiles. sex crimes evidence on the basis of facts It is little finally legal comfort that this court has abandoned the fiction that this Merriam, propensity being purposes. See State v. evidence is not used for (Katz, J., dissenting) supra, (criticizing prior 682-83 liberal admission of guise sex crimes evidence under of common scheme when evidence was Kulmac, supra, actuality being propensity State evidence); used as (Katz, J., dissenting) (same). case-by-case adjudica-

evidence common-law through majority’s “is consistent tion”; construction (4) duty interpret in a manner that with our statutes . . jeopardy . avoids them constitutional placing questionable judges because it is whether fifth, authority have the under article Superior Court codify a code of evidence 1, of the state constitution to their strips appellate courts of common-law omitted.) my view, In adjudicative (Citations function.” unsupported these are and untenable. reasons whether court has to over- issue of modify adjudication it had in an prescribed rule or a rule subsequently after the part have that rule as of the code was addressed adopted and dis- extensively concurring in Justice Borden’s Sawyer, in senting opinion I need not at Therefore, 904 A.2d 101 set forth (2006).3 scope history, rationale, the and method great length adoption code, subjects of the those have been of as Borden, D. “The New generally well documented. See A (Very) Code of Evidence: Brief Introduction and Over- view,” say that, B.J. 210 Suffice it Conn. to (1999). judiciary, began cooperative among what as a effort the law legislature bar, aegis the and the under the of the my following respect 3 I also with to that issue in made the observations Sawyer, supra, major concurring opinion in “The 363-64: ity that, authority appears recognize adoption [cjode, of to since the the the solely change judges Superior these rules lies with the of Court majority judicial Nonetheless, rule-making the exercise function. of their evidentiary questions, day, whether, another to the extent but leaves to may properly may ‘implicate rights,’ rules substantive those rules be subject adjudica judicial making, opposed of rule as to common-law such my follow, question view, In reasons the answer to tion. for the this suggest straightforward we trial clear and and should not otherwise to the [cjode. judges daily application [cjode charged who with the of the The are governs speaks, rule-making and the where it courts’ common-law requires [cjode speak [cjode governs where the where the not or either does dissenting interpretation. Evid. footnote 11 of § See Conn. Code 1-2.”See majority opinion Sawyer. opinion and related text for of the discussion revision initially contemplated commission and as a legislative by joint judicial enactment to be followed and legislative oversight committee; id., see 210-11; ultimately became, at the urging legislative leaders, of judicial court, adopted set rules pursuant of of the rule-making authority judges, order to of insulate subsequent from the changes political arena. Id., 211. In other words, rather than adopting the code itself, as a set of statutes much like the Penal Code; see General Statutes, 53a; tit. the legislative committee charged with of this oversight subject, in accordance with General 51-14,4 Statutes submitted the code to (Sup. 2008) provides: “(a) General judges Statutes 51-14 of the Supreme Court, judges Appellate Court, judges of the and the Superior adopt may promulgate Court shall and and from time to time modify repeal regulating pleading, practice procedure or rules and forms and injudicial proceedings they in courts in which have the constitutional author ity rules, purpose simplifying proceedings to make for the in the courts promoting speedy litigation upon and of and efficient determination of Appellate its merits. The rules of the Court shall be as consistent as feasible Supreme promote uniformity procedure with the rules of the Court to in the taking appeals may dispense, justice parties for the so far as to the permit affording review, necessity printing will while a fair with the abridge, enlarge modify any records and briefs. Such rules shall not or right jurisdiction any Subject substantive or the of the courts. provisions (b) section, of subsection of this such rules shall become effective judges specify any sixty days on such date as the but not in event until after promulgation. such “(b) relating pleading, practice procedure All statutes in existence July 1, 1957, on shall be deemed to be rules of court and shall remain in only modified, superseded suspended by adopted effect such until or rules promulgated Supreme Court pursuant provisions report to the of this section. The Chief Justice shall any Assembly study beginning such rules to the General for at the of each regular by speaker session. Such rules shall be referred the of the House by president judiciary the of the Senate to the committee for its consider- Any hearings any ation and such committee shall schedule thereon. rule or part disapproved by Assembly by thereof the General resolution shall be copy void and of no effect and a of such resolution shall thereafter be published once in the Connecticut Law Journal. “(c) judges public hearings, The or a committee of their number shall hold given of which reasonable notice shall be in the Connecticut Law Journal they proper, upon any proposed any and otherwise as deem new rule or change existing action, judges in an rule that is to come before said for and judicial as head of the Callahan, Chief Justice

former In adoption. accordance branch, for consideration and a appointed that Chief Callahan request, with Justice code proposed consider and revise the committee to Supe- commentary adoption by judges for the of the and to our case without adopt law, The decision rior Court. the of was determined to be best course modification, not as matter of expediency, as matter of a action a 7. Prescott, supra, 1.2.2, p. Tait & E. deference. See C. codify, the undisputed It is code was intended law embody, and thus the of evidence our state adoption law the time of the it existed in our case at code, as purposes the of the set forth of code. adopt Connecticut case law (a), regarding 1-2 are “to rules and to the promote rules of evidence as of court development through of the law of evidence growth and judicial rule inteipretation through [c]ode may end that truth be ascertained making to the With to the justly respect determined.” proceedings commentary explains of purposes, first the two intent rules evidence place “was common-law of statutory rules of evidence into and certain identified readily body rules to the legal a accessible which conveniently may Conn. Evid. profession refer.” Code commentary. (a), 1-2§ existing published proposed change rule such new rule or in an shall be each part public hearing Law Journal as of such notice. A Connecticut year, held reasonable shall likewise shall be at least once which notice any layman may given, bring at to the be which member of the bar or any judges change existing new in an that he attention of the rule or rule deems desirable. adopted “(d) Upon taking promulgated effect such rules section, Supreme pursuant provisions judges of Court to the of this provisions promulgated all rules theretofore repealed.” shall be be deemed to appeal, changes, were I note that minor technical not relevant subsequent legislative §to committee submitted made 51-14 time the purposes convenience, adoption. the code for consideration and For however, present I the statute. refer to revision of

499 It is significant compilation that the of rules was not a handbook of designated evidence, which would have accomplished purpose this but not general constitute Indeed, law. there was no need for a binding nonbinding compilation evidence, already of the rules of as there was bar, such source then available to the which was updated regularly to reflect to the case law changes and on which our frequently courts relied at the time process adoption for of the code was initiated.5 See Tait LaPlante, C. & J. Handbook of Connecticut Evidence Ed. xxxv (2d 1988), preface, p. (“[t]hepurpose body is to reduce this substantial [h]andbook law, material in common case statutes and [found provisions] constitutional to a concise statement of the readily lawyers law in a form judges, accessible to Thus, for students”).

merely to have body intended to reduce the substantial handy use, material that was but something had effect, years by no the six binding spent the two committees drafting (one instituted the legislature 5See, e.g., Rinaldi, 345, 359, State (1991) (citing v. 220 Conn. 599 A.2d 1 LaPlante, 1988]); to C. Tait & J. Handbook of Connecticut Evidence Ed. [2d Jeffrey, State v. 698, 710, denied, (1991) (same), 220 Conn. 601 A.2d 993 cert. Famiglietti, 1224, 112 3041, (1992); State 505 U.S. S. Ct. 120 L. Ed. v. 2d 909 Dunham, 605, 612, (1991) (same); Dunham v. 219 Conn. 595 A.2d 306 217 Alvarez, 24, 32-33, (1991) (same); State v. Conn. 584 A.2d 445 216 Conn. Robinson, 301, 310-11, 243, (1990) (same); State 579 A.2d 515 v. 213 Conn. 258, (1989) (same), grounds State 567 A.2d 1173 overruled on other v. Colon, James, 587, (2001); 555, State v. 257 Conn. 778 A.2d 875 211 Conn. Brown, 571-72, (1989) (same); App. 521, 523, 560 A.2d 426 v. Conn. 1120, denied, 825, (1990) (same); 577 A.2d cert. 216 Conn. 582 A.2d 204 Resch, App. 714, 717, Streicher v. (1990) (same); 20 Conn. 570 A.2d 230 Person, 115, State v. App. 124, aff'd, (1989) (same), 20 Conn. 564 A.2d 626 653, denied, 1048, (1990), 215 Conn. 577 A.2d 1036 cert. U.S. S. Ct. Barker, 756, (1991); App. 696, 702, Schultz 112 L. Ed. 2d 776 v. 15 Conn. (1988) (same); Zadroga Vehicles, v. Commissioner Motor 546 A.2d 324 Sup. 1, 8, (1991) (same); Blue Cross & Blue Shield A.2d Connecticut, DiMartino, Superior Court, judicial Inc. district of New 1991) (same); Security Haven, (July Docket No. 300642 Connecticut Life Bajorski, Superior Court, judicial Ins. Co. district of Hartford-New Britain Hartford, (June 1991) (6 682) (same). at Docket No. 387879 C.S.C.R. judicial instituted branch at the

and the other the a have been waste of time behest) would legislature’s and resources.6 authoritative, binding a an

Rather, there was need for was Thus, rules. a “code” of evidence statement of the Rules of Evidence. created, Federal analogous commentary.7 code, Evid. 1-2 A See Conn. Code (a), § equiva- a the functional handbook, unlike “is however, namely, rules of generalized lent of a set of legislation, out of prospective application arising particular not controversy to be under the court’s case or determined C. E. adjudicatory powers.” Prescott, supra, Tait & 1.2.2, p. see, Conduct; of Judicial Uni- 13; e.g., Code § Code, Statutes, 42a; State form Commercial General tit. 29-252; Safety Building Code, General Statutes Fire § Code, 29-292; Code, Statutes Public Health § General Indeed, 19a-36. the codification of General Statutes § statutory along certain rules of side the com- evidence 1-2 rules; (a), mon-law see Conn. Code Evid. commen- § tary; this intended effect. evidences process adop regard, In that the formal undertaken for same the code’s approval tion, proposed wherein code was submitted for to the rules the Superior Court, subjected hearing judges public the to a committee of the Superior Court; and to a vote see C. thereafter submitted 1.1.4; entirely unnecessary Prescott, supra, if the Tait & E. would seem nothing nonbinding intent was more of the law to create than restatement in the form of a handbook. general “Although and the the follows the format sometimes [c]ode adopt language Evidence, the of the Federal Rules does not [c]ode interpreting Evidence or those Cf. State Federal Rules of cases rules. 35, 39-40, (Federal [Vilalastra], (1988) Rules of 540 A.2d evidentiary rules, shaping not Evidence influential in Connecticut but binding). admissibility Evidence, govern Rules of which both “Unlikethe Federal administering concerning role in of evidence at trial and issues the court’s process, developed controlling and trial was with the intention [c]ode admissibility concerning and that it would address issues of evidence competency witnesses, leaving law, management issues trial to common § 1-2 Book and the discretion of the court.” Conn. Code Evid. Practice commentary. (a), clear that therefore, of 1-2 makes language (a), case law as rules adopted existing the code (1) court, develop- growth methods of (2) two interpre- were to through ment in the law of evidence be judicial making. code rule See id. tation of the maintain the was intended to (“[b]ecause [c]ode preserve rules of evi- quo, i.e., status the common-law they [cjode, prior adoption dence as existed any modify prior its is not to com- adoption intended interpretation (“[c]ase-by- mon-law of those id. rules”); is and adjudication growth develop- case integral evidentiary thus, ment of and, of law future definition interpreta- [cjode primarily through will be effected [cjode judicial tion of the rule through making”). The first identified method of growth interpreta — readily be its can understood accordance with tion — commonly as in scores of meaning applied understood ” “ “[tjo construe; cases. is defined ‘[Ijnterpret’ as Law meaning language”; seek out the of Black’s Diction “ ” as ary ‘interpretation’ “[tjhe Ed. is defined (6th 1990); process ascertaining art or the mean discovering written ing statute, will, contract, of a or other docu it interprets, ment . . . .’’Id. When a court cannot supply inherent addi change meaning words provision tional at change meaning terms Geressy, issue. See Testa v. 291, 308, 943A.2d 286 Conn. process statutory interpretation (2008) (“[tjhe meaning involves the determination of statu tory case” applied as to the facts of the language [inter State, Lucarelli quotation nal marks omitted]); must App. 65, 70, (“[cjourts Conn. 546 A.2d 940 (1988) cannot, . . . and interpret they statutes are written provisions by judicial construction, read into them clearly Thus, omitted]). which are not stated” [citations law will grow the code that the of evidence recognizes by way ambiguities gaps construction of Case-by-case adjudication necessarily rules. is one by means interpretation may which that occur.

The second method of identified 1-2 growth under § by way “judicial is (a) making.” rule Rule making is a term associated with generally the exercise of a legislative type function, typically process whereby a body prescribes prospective rule of general effect particular party unconnected to a or matter.8 See Academy, Petrowski Norwich Free App. 551, Conn. 556-57, 481 A.2d 1096 (1984) (“[it particularly important to note that case did not [the discussed] public body involve a quasi-judicial in a acting capacity, but, rather, one in a legislative capacity or rulemaking procedure since the or formula used applied equally to all those to be assessed”), rev’d on other grounds, 506 A.2d (1986). “Judicial rule making” consistently has been used our type courts to describe the legislative function exer- judicial cised branch when it adopts rules of practice e.g., Batte-Holmgren v. procedure. See, Commissioner Health, Public 281 Conn. 277, 286, of 914 A.2d 996 (2007) (citing case that discusses Practice provision Book and noting “subject jurisdic- that matter 8See, e.g., (addressing authority rule-making § General Statutes 22-203aa Dairy Compact Commission); of Northeast Interstate § General Statutes 46b- (addressing authority rule-making 151h of Interstate Commission for Juve niles); (addressing authority rule-making judges § General Statutes 51-81c Superior attorneys’ of the Court for use of interest earned on clients’ funds accounts); (addressing authority rule-making § General Statutes 54-133 Supervision); Interstate Commission for Adult Offender see v. also Hasselt Airlines, 416, 432, (2003) (“[w]e German 262 Conn. 815 A.2d 94 Lufthansa previously policy directive, have not determined whether a commissioner’s interpretation adopted pursuant rule-making which contains an not to formal acyudicatory procedures, deference”); Dept. or is entitled to Furhman v. Transportation, App. 775, 782 n.6, 638 (1994) (addressing 33 Conn. A.2d 1091 provisions “rule-making of the Uniform Administrative Procedure Act” under Warden, 4-168); App. 132, 143-44, § General Statutes Vincenzo v. 26 Conn. (1991) (discussing parole 599 A.2d 31 board’s failure to adhere to rule- making procedures).

503 ... exceptions with is, tion certain constitutional v. statute, judicial rule making”); matter of not n.1 acknowl Sawyer, supra, 279 Conn. 331-32 (“[W]e year in was that, 2000, since which the edge [code] adopted, change to rules of evidence dis judges Superior -with the of the Court in the lies of their function. ... To the charge rule-making evidentiary our rules may extent that be deemed unclear implicate substantive we believe that it is rights, properly subject judicial whether those are the rules subject rule of common-law making rather than Higgins Industries, Inc. adjudication.”); Stafford Norwalk, n.20, 245 A.2d 46 551, (1998) Conn. practice when discussing effect rules of (stating subject jurisdiction is, have indicated that matter “[w]e exceptions applicable with certain constitutional not judicial here, statute, making”); a matter of not rule 327, B. 244 Conn. 709 A.2d Ment, Pamela response defendants’ claim (1998) (stating relief from defendant chief court sought by plaintiff power supersede rule-making administrator “would Court” that “we are uncon plaintiffs vinced that the first claim for relief necessar ily impermissible would result or be tantamount an encroaching defendant chief court administra [the upon judicial v. Mur rule-making authority”); State tor] A.2d 60 ray, 355, 356, issue (“[t]he appeal is whether Practice Book 986 ^[4] is a valid authority, judicial exercise of rule-making whether, as the trial court held, ^[4] is unconstitu separation powers because it of tional violates judicial cert. legislative branches”), between the and denied, 78, U.S. 114 S. Ct. L. Ed. 2d 46 821, 510 126 Superior Rules Court v. Free (1993); Committee of 242-43, Commission, 234, 192 Conn. dom of Information A.2d 9 when whether (stating considering (1984) 472 to Freedom Information subject rules committee was of proper scope judicial that, determining Act “[i]n may of concerns identi rule-making, three classes be rules, fied: concerns that to substantive concerns go procedural rules, and concerns that go go Clemente, State 501, administrative 166 Conn. rules”); history A.2d 723 (1974) (“[t]he legislative judicial authorization for rule-making, legislature’s authority procedural to make rules and its relation to ability rule-making the court’s inherent were discussed Appeal Dattilo, In re 488, 492, 494, 136 Conn. [1950], A.2d 50 in which it was indicated that the statute question power was within both the and legislative Burton the court’s inherent rule-making ability”); Planning Commission, App. 400, 405, 13 Conn. (1988) (“We A.2d 995 do not read the language, ‘[a]t hearing,’ General Statutes 8-28 to mean that [b] the Practice Book rules for such a providing hearing Indeed, must be were we to do so we would ignored. required question be to confront a constitutional of the separation powers between the and the legislature judiciary possibility because of the of a intru ’legislative judicial aff'd, sion on the function.’ rule-making ”), see also Norwalk Street Conn. 553 A.2d 161 (1989); Ry. Appeal, Co.’s 576, 595, 37 A. 1080 (1897) (“means legislative of a nature must be used courts necessary in establishing rules of practice”). authority adjudica- reserved to the courts in their capacity

tive as a result of the rule-making conferral of expressly on the is addressed in the clause set in 1-2 saving (b) forth Because, codification, the code. the courts “[w]ith are, in confined to general, interpreting applying [c]ode, require action changes codifying entity, case, in this the Judges Superior Court”; v. Sawyer, supra, J., (Borden, 279 Conn. 374 con- provision this curring dissenting); was added to temper necessary flexibility the code to loss of process. Id. The previously part was of the common-law provides: expressly unambiguously clause and saving prescribe does not a rule governing “Where the [c]ode the court shall be admissibility evidence, gov- they may by principles of the common law as erned experience, reason and interpreted light be except required as otherwise the constitution of state, the constitution of this the General States, United provisions Book. The Statutes or the Practice precluding any shall not be construed as court [c]ode evidentiary rules not inconsis- recognizing from other tent with such Conn. provisions.” (Emphasis added.) explained by Evid. 1-2 As was the chair of (b). Code § when the code first was intro- drafting committee provision patterned duced: “This after the analogous Penal Code. See . . . General Statutes provision of the flexibility provide 53a-4.9 It will some degree § creativity part law on the of a court that is common that is not evidentiary question with an confronted implicitly, by or covered, explicitly either [c]ode p. “Thus, D. Borden, supra, 215. (Emphasis added.) full provides section of the the courts with our [c]ode powers in panoply interpreting of traditional [c]ode new powers fashioning and our full common-law evidence for instances that are not covered rules implicitly.” explicitly (Emphasis either [c]ode Sawyer, supra, (Borden, J., State concur- added.) abundantly from As seems clear ring dissenting). where the code does of 1-2 express language (b), § provisions chapter provides: shall General Statutes 53a-4 “The of this any principles precluding recognizing construed as court from other not be provisions.” liability or other defenses not inconsistent with such of criminal Comments, Statutes, the Criminal Penal Code See also Commission to Revise 53a-4,comments, p. (“The purpose (West 2007) Conn. Gen. Stat. Ann. provisions saving make that the Statutes of this clause is to clear [General liability 53a-23, principles of criminal 53a-5 to which define the §§] precluded by defenses, necessarily A are not exclusive. court is not [§§] principles recognizing such and defenses not 53a-5 to 53a-23 from other therewith.”). inconsistent evidence, the courts cannot overrule or

cover rule an action would be inconsis- modify rule, that as such statutory provision, the code unless some tent with Indeed, pre- this court conflict arises. constitutional viously that it cannot construe the acknowledged has to effectuate a substantive to the common- change code Whitford, See State v. law rules codified therein. A.2d 1034 court 610, 639-40, (2002) (The Conn. interpretation the defendant’s stated, rejecting when in provision a code that was not accordance with adopted pro- common-law rule as a rule of court: “In his 4-5 of the code pounding argument regarding (c) § evidence], ignores character the defendant [addressing portion commentary, of 1-2 of the code and its previously cited, which indicates that the code was only codify If, law. as the intended to the common permit- as suggests, (c) defendant we were to read 4-5§ regarding spe- introduction of evidence a victim’s ting acts, cific violent we would be the code in interpreting a manner that would effectuate a substantive change contrary in the law. Because such a result would be express drafters, reject intention of the code’s we it.”). that,

It is also in order to execute effec- significant tively judicial power, of the rule-making judges code, an Superior Court, adopting when created oversight purpose evidence code committee. The stated “ operations of that committee is ‘to monitor the of the implemented practice, as it is and make [code] periodic recommendations for revision and clarification ” Superior of the Court.’ D. [r]ules [c]ommittee Borden, supra, p. judges 216. In so decided doing, component to, corollary to treat the and a code as of, practice, proposed the rules of rules of evidence adoption by cannot be submitted for judges Superior they approved Court unless are the rules practice. committee oversees the rules that, pursuant It is well understood to the legislative authority under 51-14 see footnote delegation (a); opinion; 4 of this dissenting “empowered adopt

Court are rules promulgate judicial regulating pleading, practice procedure they in courts in which have the constitu proceedings rules, purpose tional to make for the of simpli fying proceedings the courts and of promoting speedy upon and efficient determination of litigation quotation its merits.” marks Steadwell (Internal omitted.) Warden, 153, 162, 439 v. 186 Conn. A.2d 1078 (1982). previously This court “recognize[d] has that the rules practice by adopted and the codes of the judges Superior Court have the force of law.” Mozzochi v. Beck, 490, 501 n.7, 529 204 Conn. A.2d 171 accord (1987); Marshall, App. 227, Noble v. 23 Conn. 579 A.2d 231, adopted by 594 rules that have been (1990) (“[t]he Superior of the Court have the force of judges law”); McCahill, 446, see also State v. 265 Conn. 828 A.2d 437, statutory 1235 rules of construction (2003) (“our apply equal interpretations with force to of the of prac rules Strickland, App. 768, n.8, State v. 42 Conn. 780 tice”); practice 682 A.2d 521 rules of are (1996) (“[t]he designed regulate pleading, practice procedure; [a]; see General Statutes 51-14 and are to be construed statutory our accordance with rules of construc rev’d on other 243 Conn. 703 A.2d tion”), grounds, Certainly, that, 109 it could not be (1997). suggested interpreting other than statutes or them as striking unconstitutional, this disregard court could amend or a court that Accordingly, recognized statute. this has appellate amend, courts are not free to disregard practice or overrule rules of “because that vested of the Court. See General Kupstis cf. v. 215 Conn. (a); Michaud, Statutes 51-14 435, 437, prob 576 A.2d 152 that (1990) (observing ‘[t]he lem litigation illuminated [in [the] case] call[ed] practice that this court in the rules of for a change Weinstein, Conn. Weinstein v. enact’).” [could not] J., dissenting); (Zarella, A.2d 53 671, 736, (2005) & Rights Human v. Commission on Oakley accord A.2d 851 28, 30, (1996) Opportunities, 237 Conn. concern raised espite legitimacy (“[d] [of [the] cannot concern is one that question], the the certified appellate review process through be addressed appropriate provisions a in the requires change but Book”); the Practice Statutes or of either of the General 61-62, 634 A.2d 293 Johnson, 228 Conn. State of the rules amendment clarifying (1993) (“[although by this problem illuminated to address the practice court does not sit as desirable, well be case might Superior Court”); [c]ommittee [r]ules n.11, A.2d 915 Jennings, 647,665 (1990) utility need for written do not sit to decide (“We To the extent Connecticut courts. instructions in the decision, request his the defendant seeks such properly is more directed [c]ommittee [r]ules has Thus, just as this court Superior Court.”). that this court lacks numerous occasions recognized on there practice, to the rules of authority changes to make for the code rules principled treating rationale is no majority’s attempt distinguish to any differently.10 The the rules of evidence by virtue of the fact that the two func judicial truth-seeking core “facilitate the court’s previous recognition this court’s tion” is undermined 10 adopted process by practice are is identical to the which rules of The evidence, except process process in that the latter commences for rules of Superior eeRules Committee oversight code committee. S the evidence Commission, supra, (“The 192 Conn. 237 Court Freedom of Information v. body composed judges Superior Its Court. is a [r]ules [c]ommittee practice proposed changes in the rules of for the function is to consider Book, Superior Court, which amendments to the Practice and to recommend proposed may Superior judges. adopted Once Practice vote of the be they approved by [cjommittee, are Book amendments have been [r]ules subject Journal, public published and are to comment in the Connecticut Law adoption by judges.”). before their

509 function; are essential to that same practice rules of that 118 Robinson, 591, 598, 646 A.2d see State v. 230 Conn. then Practice Book in reference to (1994) (explaining “ have witnesses 42-36], right that § § [t]he [now important an that facilitates sequestered right a trial”); functions of fact-finding seeking truth Whitaker, 520 A.2d 1018 State 259, 266, Book in context of then Practice (1987) (recognizing 40-25], 40-17 which through through §§ §§ [now or defect defenses of mental disease address, alia, inter discovery is of mutual degree that “some alibi, and there are truth-seeking process”); essential undoubtedly are essen practice numerous rules of Practice Book 13-22 function; see, e.g., §§ tial to that 25- Practice Book admissions); 13-24 through (use family Practice matters); disclosure (mandatory depositions at Practice Book trial); Book 13-31 (use rules forth, alia, inter (setting 16-1 16-38 through §§ jury delib jury may consider and matters governing the court in Indeed, opinion erations). by every mem n.1, joined Sawyer, supra, 279 Conn. 331 except in this case Chief Justice majority ber of the court, yet appointed been to this who had not Rogers, year that, since expressly “acknowledge [d] change adopted, was which the [code] with the the rules of evidence lies function.”11 rule-making of their discharge Court in the Sawyer questioned only majority whether the code constrains The ability rule of evidence that reconsider a “substantive” this court’s case, clearly adopted conceded that such constraint had in a but court “procedural.” majority’s operate was what it deemed would if a rule by relegat acknowledgment attempt from that in this case to distance itself oriented, given appears that we had ing the fact to be result it to dictum very supplemental comprehensive requested briefs on this received challenges justices vigorous to the this court had written issue and two on Thus, although specifically majority opinion at these statements. directed holding to the sense that it was not essential was dicta in the the statement Sawyer majority’s case, imply disingenuous the statement to that in that it is Sawyer, Indeed, prior to two mem reflection. was made without deliberate opinions joined majority present had or written in the case bers of the authority practice, change such stating rules of as has no that this court v. Whitford, supra,

See also State 260 Conn. 639-40 interpretation that would make substantive (rejecting to code such a result would be con- change “[b]ecause trary intention of the express drafters”). code’s analysis, the textual I with foregoing agree

From Jus- tice Borden that “the conclusions could not following First, adopted be more clear. the has [c]ode —codified— law as it existed in our case law at the our of evidence adoption. Second, ode’s if a matter is time the [c] by [c]ode, covered the this court cannot the change rule; that function is for the evidence code oversight committee, Superior the committee of the Court, rules ultimately Superior for the of the Court. judges may, course, may any This court as court, interpret [c]ode, applied any as set of facts in a given supra, case.”12 Sawyer, (Borden, Conn. 375 J., Additionally, when the concurring dissenting). silent, adjudicative code is in the context their func- tion, disposal the courts have at their our full common- exclusively is vested in the of the Court. See Weinstein, supra, (Zarella, J., dissenting); Oakley Weinstein v. 275 Conn. 736 Rights Opportunities, supra, v. Commission on Human & 237 Conn. 30 (per opinion Norcott, J.). curiam that included by The same conclusion was articulated Professor Colin Tait of the University Law, continuously of Connecticut School of who has served responsible code, a member of the various committees for the a first as appointed committee, legislatively drafting member of the then as a member by judicial Chief committee formed Justice Callahan as head of the proposed code, finally branch to consider and review the as a member oversight “Development evidentiary of the evidence committee: rules not [c]ode, law, accomplished through contained in the viz.the common could be judicial by decisions, judicial rule-making. (a). or Code 1-2 [Conn. Evid.] judicial subsequently [c]ode, ensuing If a decision codified rule only by changed change rule-making can be itself [the] [c]ode process. Moreover, promote development evidence, of the law of judicial change existing can be amended to common law found in [c]ode archaic, obsolete, unwise, decisions are deemed or not in accord with jurisprudence. end, legal thinking could, modem To the [c]ode effectively rule-making process, negate Supreme Court decision that impede development is deemed to law of evidence.” C. Tait & E. Prescott, supra, 1.3.1,p.17. See, of evidence. in new rules powers fashioning law 947 A.2d Wenkert, 101, 125-26, 287 Conn. Monti e.g., rule disclosure and regarding forth (2008) (setting settlement admissibility contingent verdict use of such evidence to be limiting but agreements, code). consistent with 4-8 § [a] analysis dismisses as irrelevant majority’s textual “any precludes in 1-2 that court” language (b) the clear § adjudicative capacity from its common-law acting modify provisions except or overrule code when provision of the code and a conflict arises between constitution, constitution, the state federal provision of practice. rules of Their rationale General Statutes or opinion, of their for so to a footnote doing, relegated extraordinary. They that, because posit short of nothing it commentary provides governs to the code that trial”; “evidentiary during issue that arise might [s] Code Evid. 1-2 commen added) (b), Conn. (emphasis exclu tary; is, therefore, “applicable clause saving Courts, rather than to the sively or to this court.” See footnote 17 of the Appellate Court question majority opinion. reasoning begs This —are evidentiary an court only appellate not the issues that Evidentiary that arise a trial? during examines ones trial in the first instance. are made court rulings advi appellate Our courts have no to render sory to a contested issue opinions unconnected of a trial court proceeding. has arisen in the course Education, 89, 122-23, 717 Board Packer v. J., see Pizzuto (1998) (Berdon, concurring); A.2d 117 Conn. Retardation, Mental Commissioner of commentary’s Thus, the 263-64, (2007). 927 A.2d 811 evidentiary context in which acknowledgment not render will arise in the first instance does issues appellate courts. See inapplicable clause saving commentary (referring, 1-2 (b) Conn. Code Evid. § “any plural). court” and “courts” respectively, clear mandate of 1-2 (b) After ignoring majority clearly question us, before the answers in 1-2 designating that the language (a) § then concludes as the meth- “interpretation” “judicial making” rule of the law of evidence is development ods for further in question light at as to the before us ambiguous least commentary. Specifically, the two references in the commentary pro- majority that, concludes because “[c]ase-by-case adjudication integral vides that evidentiary development law”; (emphasis growth we commentary; Conn. Code Evid. 1-2 added) (a), § “interpretation” broadly, presum- should read the term ably broadly appellate so that it means to allow courts majority rejects modify inexplicably the code. The universally applied meaning the common and of inter- pretation, which would limit the court’s provision code, a to find explaining construing an where there is none. ambiguity majority that, also reasons the com- “[b]ecause evidentiary mentary developed 1-2 refers to law case-by-case adjudication via as ‘rules of common-law evidence,’ appears it that the ‘judicial Court intended the term rule to include making’ evidentiary developed case-by-case law com- through commentary adjudication.” Although mon-law developed refers to “rules” of evidence com- through adjudication, mon-law I am at a loss to what imagine commentary else the would or indeed could label such synonymous tenets. The term “rules” is not with generic “judicial which, term of art rule legal making,” previously indicate, cited is used to describe cases type judicial function exercised legislative making procedural branch when rules.13 Judicial rule 13 judicial acknowledged making Numerous courts have rule is essen See, e.g., Supreme Virginia tially Court v. Consumers legislative act. States, Inc., 719, 731, 734, Union the United 100 S. Ct. U.S. that, adopted (1980) (concluding Virginia Supreme L. Ed. 2d 641 when code, acting making, adjudicatory capacity, state bar it was in rule not capacity acting legislative legislative it to therefore was entitled procedural process involves a “formal with its making expository attendant time constraints and limitations.” Prescott, supra, 1.6.2, p. C. Tait & E. 24. A trial single court can in a judge given case, set forth “rule” but may usurp power single judge [rule-making] “[n]o th[e] judiciary. Orderly procedure from the entire and due process justice requires the administration of application practice properly uniform of the rules of adopted by body.” Hospital the authorized Park City Hospitals Care, Commission on & Health 14 Conn. dissenting), App. 413, 423, J., 542 A.2d 326 (1988) (Bieluch, 'd, A.2d (1989). aff Indeed, adjudicatory capac in their judges, acting “[i]f ity, expand, contract, were free to or otherwise alter the they rules promulgated their own of Judicial [Code Conduct, would cease to function as a with a code, it] code’s attendant completeness, attributes of ease of access, Prescott, and authoritativeness.” C. Tait & E. supra, 1.7.2, p. 27.

Therefore, majority both the well under- ignores “interpretation” “judicial stood of and meaning rule making” express as well as the limitation that new rules adjudication only of evidence common-law through may be fashioned in instances that are not covered explicitly implicitly; the code either or Conn. Code Evid. 1-2 reach that (b); to its conclusion the code is silent ability on the court’s to the rules of change evidence case-by-case adjudication. common-law through Buoyed by majority ambiguities, their manufactured turns to the discussion at the at which judges’ meeting 874, immunity); Michigan, (6th 1986) (holding Abick 803 F.2d 877-78 Cir. justices Michigan Supreme legislative capacity” that of in their “[act] promulgating practice procedure); Cameron, court rules of State v. P.3d 687, 694 App. Supreme (Alaska 2005) (characterizing Alaska Court’s authority adopt legislative function), constitutional court rules as rev’d grounds, (Alaska 2007); Pasqua Council, on other 171 P.3d 1154 186 N.J. (2006) (“[t]he promulgation 892 A.2d 663 of a court rule is a legislative act”). adopted express regarding code was for evidence upon the code would have adoption the effect that a evidentiary law on change this court’s I that the case-by-case Although acknowledge basis. express that not reflect state- meeting minutes of do presentation group ment in Justice Borden’s to that regret I am sure both he and I that silence hindsight, hardly dispositive. First, that, it is as chair both the evi- well-known dence code committee the rules committee drafting Superior Court, lengthly of the Justice Borden sent a spent many letter in of and thereafter hours advance the code judges’ meeting explaining at a association presentation. to his his statements prior Thus, official reasonably at the official be viewed as meeting should summation, comprehensive not a discussion of all of adoption Second, of the the ramifications of code. majority improperly greater significance, many Court, assumes whom had either the drafting served on evidence code or rules committee had understanding committee no appreciation adopt code, of what it means to a failed to mean- opposed handbook; understand the scope clause forth ing saving setting authority respect courts’ with and had no code; case law con- knowledge recognizing our similar authority with respect straints on the courts’ to the rules are I practice. evident, however, Because these facts that, spell despite assume Justice Borden’s failure to it them, out for were judges the they plenary aware that would have over both power practice code, the rules of and the relieving thus appellate authority to rules. change courts of such Indeed, clear, had it not then been would have one expected response some to Justice Borden’s law review article, published prior code, to the effective date of the explaining saving clause the code was mod- Penal Code; eled on clause of the see footnote saving

515 9 opinion text; of this dissenting accompanying clearly latter of which limit understood to appellate courts’ common-law change previously crimes or defenses set forth in case law and codified into the Penal v. Bronson, Code. See Valeriano 75, 209 Conn. 92-95, 546 A.2d 1380 (1988) (recognizing if that, adopted “year day court had common-law and a rule,” by rule was abrogated Penal Code and saving clause of preclude readopt that code would court from ing Guess, see also State v. 244 rule); Conn. 778-79, 715 (1998) A.2d 643 that rule (determining being considered was not inconsistent with Penal Code and therefore court not barred from adopting rule under saving clause); Walton, 32, 44-45, 227 Conn. 630 A.2d 990 (1993) (same). question

I majority’s also reliance on anecdotal any evidence. The fact that one trial no matter judge, how senior respected, appreciate or well did not full import of his or her vote does not mean that the code not expressly purports what it to be. Indeed, given special that this court accords generally weight to statements of by sponsor intent who legislators draft a issue; Technologies Corp., bill at Cotto v. United 1, n.6, Conn. 738 A.2d 623 (1999); United Illumi nating Groppo, n.14, Co. 220 Conn. 601 A.2d aff'd, (1992), 191, 627 A.2d 407 (1993); Guckian, State v. 27 Conn. App. 225, 237, 605 A.2d 874 (1992); interpretations one would think that the offered Borden, Justice as chair of the committee charged with drafting code, Tait, Professor Colin one of the members original drafting committee; opinion; carry see footnote of this would dissenting if greater weight. Indeed, per anecdotal evidence were I suasive, point majority would to a letter in the files for the evidence code committee from oversight my Justice Borden to in capacity me as chair of that committee, dated a few weeks after the effective date

516 only the text the That letter not reflects that code. conveyed the code foreclosed clearly that code “the appellate in case that majority’s the conclusion . authority to . . change courts state retain the of this case-by-case the evidence common- through rules of as indicates, it reflected adjudication,” law further that it clear questions Borden, to Justice was posed before that the code first would have to be amended authority to appellate a change the courts would have rule the code.14 under majority

If all relies on the maxim of fails, else that when- statutory statutes, construction we construe possible, infirmities; ever to avoid constitutional n.6, A.2d Bergamo, Denardo v. Conn. conclude this court retain to that must (2005); authority to the rules of evidence case- change through 2000, provided: Borden, January 26, The Justice “As letter from dated suggestion conversation, intriguing I was made indicated in our recent an [a]ttomeys me when I their to one of the addressed [s]tate’s [assistant [a]ppellate recently regarding suggestion that the [u]nit [code]. provide Supreme empowered, be Court be amended to [c]ode any specific case, specific provision a to or overrule context of amend reason, [c]ode, manner, experience in the in a kind of common if and law policy persuade the to do so. [c]ourt way principal argument provides preserve it is more “The for that it one to flexibility advancing modernizing the kind law and the law of common [c]ode, [c]ode, being It of evidence that the virtue of a has reduced. parties specific cases, give incentive, would in the context- of also they probably argue change for law of a in the evidence that would not have under [c]ode. recognize provision, “I be an that this would unusual can be viewed Nonetheless, having with the entire I inconsistent notion of [c]ode. your request exploring, think that at least committee it is [worth] you which, it, (of Czarina) I consider it. as understand are the any judicially questions “Some that occur Are there to me are: other provision? have Is it wise created evidence codes that such a as a matter policy? employed so, do would If the court were to what mechanism be provide subsequent it to the for amendment of the conform [c]ode Supreme formulating it, or Court decision—the itself [c]ourt [e]vidence [ojversight suggesting a formulation for submission to [c]ode [c]ommittee just [cjommittee, [j]udges? and then to These are some [r]ules questions your [cjommittee of, answer, will sure think others.” —I’m adjudication. Specifically, by-case common-law whether questionable is majority posits that “it authority under Court have the judges codify of the state constitution fifth, 1, article of their strips appellate that courts code of evidence adjudicative added.) function.” (Emphasis common-law maxim is a rehable tool the aforementioned Although statutory it should not be invoked when construction, has majority threat. The there is no real constitutional that such a threat exists. failed to demonstrate in which cases, previously discussed, The numerous have no appellate has held that the courts this court authority authority practice, rules of change Superior Court, exclusively vested in the effect of squarely repudiate binding the notion that process the constitution. The which the code violates adopted process are is identical to the those rules If the adopted. rules under the code were which the unconstitutional, code is so too is binding effect Book. This court has effect of the Practice binding separa challenges regarding considered constitutional via intrusion into powers legislative tion of concerns without adopt practice, rules of the court’s judicial within the procedure ever that the suggesting constitutionally See Bleau may suspect. itself be branch Mitchell Ward, 331, (1992); v. Conn. 603 A.2d Mitchell, 312, 481 (1984); v. 194 Conn. A.2d 31 Steadwell Clemente, v. Warden, supra, 153; 186 Conn. also Fishman (1974); Conn. 353 A.2d 723 see Co., App. 339, 4 Conn. Middlesex Mutual Assurance 806, 807, 499 denied, 494 A.2d certs. 197 Conn. A.2d 57 (1985). our have inherent recognized

To the extent that cases statutory or con- authority independent of rule-making that such recognized this court has grant, stitutional exclusively Supreme in the authority is not vested the lower courts’ inherent suggested and never has adjudicatory authority is subservient to this court’s authority. See, Massameno v. Statewide Grievance e.g.,

Committee, 539, 553-54, (1995) 663 A.2d 317 authority to Superior possesses Court inherent (“The attorney discipline and to the mem- conduct regulate judiciary power . to bers of the bar. . . The has the attorneys and to disbar them ... to practice admit to . . fix of those to be admitted . and qualifications ... In practice define what constitutes the of law. to disciplinary power, Superior its the exercise of adopted Responsi- Court has the Code of Professional bility.” quotation internal marks omitted; [Citations Sanabria, omitted.]); State 671, 192 Conn. 691-92 branch has n.16, judicial 474 A.2d 760 (1984) (“The administration, to make rules of inherent practice, procedure with to its functions. regard Superior adopted ... If the of the Court had judges procedures probable hearings Practice Book for cause 83-210 Public before the enactment [No. Acts], jury provision the constitutional would grand have taken effect at that time. . . . both the General [I]f Assembly Superior of the Court failed to judges thereby procedures, leaving establish the constitutional provision in for this period, limbo an unreasonable imposed procedures court have could such order to did legislature effectuate amendment. Because the period, necessary act within a reasonable it was not omitted; emphasis for us to do so.” added.]); [Citations v. King, 292, 297, (1982) 445 A.2d 901 power, independent have an inherent of stat- (“[C]ourts utory prescribe to rules their authorization, regulate justice proceedings and facilitate the administration of they necessary. as deem ... It was in the exercise of power Superior adopted that the of the Court judges practice presen- rule of relating disclosure [the major investigation reports] part tence revision procedure.” omitted; of the rules of criminal [Citation also In re quotation internal marks see omitted.]); Appeal of Dattilo, supra, (“[T]he 136 Conn. 492 statutes authority not of the judges now give carry provisions only to make rules to out in the words of also, Practice Act but [Public [of 1879] necessary all 9, 13], Acts c. to ‘make §§ causes proper rules, contrary law, not for the trial of Even [S]uperior and other in said proceedings [C]ourt.’ so, power if this were not it was within the particular question. Apart to make the rule in from authority, courts in the exercise of legislative acting powers common-law have an inherent to make right governing procedure them.”). rules majority the circum- also seems to overlook adoption stances to the of the code the leading Peters, effect of 51-14. Former Chief Justice as head of § judicial branch, requested legislature the entire that the adopt legislature a code of evidence. Had the acceded adjudi- request, to that this court could not assert that its catory authority unconstitutionally had been abridged because it no could common-law rules longer change by codified the The court would be limited legislature.15 15 authority previously legislature has indicated that the has the This court regulating binding that be to enact statutes the admission of evidence would courts, Supreme County Savings including the Court. See Johnson on our Walker, 348, 351-52, (Holding regard (1906) Bank v. 65 A. 132 with Conn. aprovision Negotiable Act: introduces no evidence of the Instruments “[It] issue, simply and excludes none which is material. It immaterial to evidence, regulates introducing the manner of relevant its enactment fully power legislative department, notwithstanding was within the application may, case, vary ordinary procedure its as in this rule of prove it, alleges it a and not for him who denies the is for him who fact to Cavallaro, App. 622, allegation disprove it.”); Cooper v. see also Conn. passed (1984) (“Our legislature has more than a few 481 A.2d 101 presumptions A statutes which create and affect the rules of evidence. thereby proof, generates presumption, shifting the burden of statute which a judicial legislature is not an unconstitutional invasion of the into the sphere.”). Moreover, request adopt light the fact that the a code of evidence judicial branch, complain this court could not thereafter was initiated separation powers provision binding that the effect of the code violates adjudicatory function of

to its traditional common-law that the rules, those even if we determined interpreting are adopt longer us to the rules no leading reasons first committee, judiciary The chairs of the how- sound.16 adoption leave the of the code to the ever, chose to a formal judicial delegation branch. To the extent that judicial branch would have been pre- necessary, legislature none was as the required, by way of 51-14. viously delegation had executed opinion. dissenting See footnote of this Callahan, then It is conceivable that Chief Justice as judicial branch, could have initiated a rule- head of the exclusively by Supreme process governed making process governed Court. The fact that he initiated entirely Superior Court, however, XVIII; Const., generally v. of the constitution. Conn. amend. see State separation McCahill, 492, 505-506, 811 (2002) (addressing A.2d667 261Conn. Indeed, majority’s powers). admission that “the rules of evidence exclusively judicial regarded within . . . have never in this state been domain”; James, 555, 560, (1989); 211 Conn. 560A.2d 426 belies their State only this court can be the final arbiter of rules of evidence. contention example, provision in the code that has its roots in the common For one constancy Troupe, (c). law is the of accusation rule in 6-11 See State expressly 284, 297, (1996) (“This adopted 677 A.2d 917 court 237 Conn. complaint Wolf, 93, 100[1830], doctrine in v. De in which fresh rape an . . . such evidence is received we stated that ‘on indictment for constancy testifies, witness. If a female to shew in the declarations of the person, enquiry is, outrage her an at that such an has been committed on why once, suggested, ”). it was not communicated to her female friends.’ controversy constancy generate of accusation rule has continued to adoption policy of the rule to whether the considerations that led to currently apply; indeed, oversight the evidence code committee is con still adopt sidering legislature that rule. Had the chosen to amendments to constancy proposed presented 1997, included the code to it in which of rule, disregard accusation this court would not be free to the statute and prior precedent, even if we viewed that rule to be outdated. overrule our authority Indeed, recognition legislature’s (b) § that 1-2 it was in of “ provides part prescribe in relevant the code does not the code [w]here admissibility evidence, governing governed be a rule of court shall they may interpreted principles light be in the of the common law as required experience, except by . . . of reason and as otherwise the General added.) (Emphasis Statutes

521 Indeed, procedure such a for consistent with 51-14. § by judicial legisla rule has been sanctioned making Appeal see In re mid-1800s; ture statute since the of Dattilo, supra, 490-92; legislature and expressly promulgate has directed the Court to procedural authority rules under the numerous other delegated pursuant 51-14.17 § point constitution, I also would out that our state many states, unlike those of other does not confer to make express authority highest on the state’s court practice procedure rules of and generally, including evidence, express rules of or confer author- rule-making ity Indeed, all if one specifically over lower courts.18 17 (probate practice proce § See General Statutes 45a-78 court rules of and procedure family support dure); (rules § for General Statutes 46b-231 (rules magistrate division); § General Statutes 47a-14h for landlord-tenant summary process actions); (rules procedure § General Statutes 51-15 for practice pleadings, and rules of and various civil actions modification of actions); (rules § evidence for small claims General Statutes 52-191c for terminally precedence involving persons); ill of actions General Statutes (rules concerning qualification interpreters jurors); § 51-245a to assist referring (rules finder); § General Statutes for contract action to fact 52-549n (rules referring arbitrator); § civil action to General Statutes 52-549u for speedy trial). (rules §§ General Statutes 54-821and 54-82m for 18See, Const., VI, 150, 328, supreme e.g., (“[t]he § § Ala. art. amend. 6.11 promulgate governing court shall make and rules the administration of all procedure governing practice courts”); in all Schoenvo courts and rules and Inc., gel Group Retail, (Ala. 2004) (constitu v. Venator 895 So. 2d power practice procedure tional to make rules of and includes rules of evidence); Const., VI, (“[t]he supreme § Colo. art. court shall make and promulgate governing rules the administration of all courts and shall make procedure promulgate governing practice in civil and criminal and rules and Page Clark, 306, 318, (1979) (power cases”); 197 Colo. 592 P.2d 792 practice procedure procedural evidence); make rules of and include rules of adopt Const., V, (a) (“[t]he supreme for the Fla. art. court shall rules Cartwright, practice procedure courts”); in all In Commitment re (Fla. App. 2004) (constitutional adopt 870 So. 2d rules practice procedure procedural denied, evidence), rules of cert. include (Fla. 2005); Const., IV, (a) (“[t]he 914 So. 2d 952 Md. art. Court of Appeals adopt regulations concerning from time to time shall rules and practice procedure appellate administration of the courts and the [sjtate”); Ann., and in the other courts of this Md. Code Cts. & Jud. Proc. authority (a) adopt (LexisNexis 2006) (construing § 1-201 constitutional to

522 to glean the various state constitutions were to examine highest that the states’ they reflect a view whether authority over trial rule-making have inherent courts to suggest would courts, several states’ constitutions the state constitution contrary. In where Georgia, authority rule over with ultimate legislature vests the authority with to Supreme Court but vests the making, court’s rules law, with adopt rules not inconsistent by the approved the rules are are not effective until the rules. See Ga. subject would be to lower court that Austin, 278 9; 1 and Bell Const., VI, 1, paras. art. § California, In 844, 846, (2005). Ga. 607 S.E.2d authority judi- in a rule-making state constitution vests consist of the Chief council, whose members voting cial Supreme Court, three judge and one other Justice and ten Appeal judges of the Court of judges 6. That scheme is Const., VI, Cal. art. Superior § Court. constitute a in that the Court notable members and thus necessar- majority of council voting on the binding rules that would be ily could determine Court. Supreme rule-making confer

Several other states’ constitutions court, subject power but power highest on their practice procedure “regulation of the form and to include rules Const., admissibility cases”); taking N.D. of evidence in all method of and the authority promulgate VI, supreme (“[t]he rules § 3 court shall have art. appellate procedure, procedure, including all the courts to be followed (N.D. 2005) state”); of L.B.B., 707 N.W.2d In re Interest practice J., power (Sandstrom, concurring) (constitutional to make rules of Const., V, evidence); (c) procedure § 10 Penn. art. includes rules of prescribe general governing power (“Supreme rules Court shall have the courts”); procedure practice, Penn. Rules of Evid. and the conduct of all five, [c], adopted (b) (noting § 10 are article § 101 that rules of evidence Const., VIII, (expressly conferring Pennsylvania constitution); art. Utah Const., VI, authority evidence); N.M. art. make rules of see also superintending all inferior (“Supreme . . . have a control over shall 307, 312, Broadcasting, Inc., courts”); 89 N.M. Ammerman v. Hubbard superintending grant (1976) (constitutional confers P.2d 1354 evidence). practice procedure, including power rules of to make rules of by to legislative oversight allowing legislature either disapprove to rules enacted the court or requiring the court’s rules to be consistent with the law.19In some states, any express in the absence of constitutional con- authority ferral of or when the constitution vests author- ity in the legislature, may, by statute, a state’s legislature delegate authority its to the state’s rule-making highest court.20 Our legislature, course, of has addressed rule authority but has making, delegated to all of our courts. See General Statutes 51-14 (a). Thus, given the § any absence of express and exclusive constitutional to of grant rule-making authority court, variety of constitutional schemes for rule and the dele- making gation authority of under I 51-14,21 see to nothing § indicate that a constitutional conflict would arise construing code, written, to allow the judges Court to make rules that bind this court. that, The mere fact our predating constitution, this court had set forth rules of evidence the context of an adjudication simply undisputed— demonstrates what is 19See, e.g., Const., IV, 15; Const., V, 5; Const., § Alaska art. La. § art. Mo. V, 5; Const., VII, (3); Const., V, 25; § art. Mont. art. 2§ § Neb. art. Ohio Const., IV, Const., (B); VI, § art. Va. § art. 5. 20See, Const., e.g., VI, 14; § §§ Iowa art. Iowa Code Ann. 602.4201 and (West 1996); (2007); 602.4202 Me. Rev. Ann. § Stat. tit. Miss. Code Ann. Const., VI, 30; (1972); § 9-3-61 N.Y. art. N.Y. §§ Jud. Ct. Acts 211 and 214- a; (West 2004); Wash. Rev. Code 2.04.190 see also Mass. Gen. c. Laws (LexisNexis 1999) (authorizing adopts rules, § 3 lower courts to but subjecting approval by Supreme Court). rules to Judicial legal explained respect As one eminent scholar this field with congressional delegation of under a federal constitutional scheme substantially judicial provision: delegation similar to Connecticut’s “If [of Congress’ rule-making power] possible, may power whom of rule- making delegated? delegee way be must be in a chosen that makes sense, framework, institutional that seems meet in an historical [to] conception separation power theory that does no violence to our practice. Supreme . . . is obvious that the Court and individual courts [I]t properly delegated responsibility So, too, rule-making. could be could assembly an such as the United States Judicial Conference aor appointed by judges approved by Congress.” committee or commission Weinstein, Rule-Making (1977) pp. J. Reform of Court Procedures 95-96. authority does not this court has do so—it question dispute, another is, whether

answer body adopt rules that this court cannot judicial can overrule. concurrence, acknowledges his Justice Palmer

In clearly to the code precludes changes that the code process except by rule-making aegis under Court, that this Superior posits but despite applies only limitation Court — applies 1-2 express language (b) in that this limitation § arise “any court” —because a different conflict would courts. appellate if that section were deemed to bind the con- Specifically, the concurrence (Emphasis added.) with that such a result would be inconsistent cludes this court’s inherent supervisory authority over the justice.221 disagree. administration of only powers invoked supervisory Because are “[o]ur the rare circumstance protec- in where traditional [the] inadequate adminis- just are to ensure the fair and tions Hines, State v. courts”; tration of the (emphasis added) undoubtedly 796, A.2d 522 (1998); 709 22 many states, on this Unlike other our constitution does not confer supervisory authority Pugh, general over the See D. C. court lower courts. p. al., Rulemaking: Compendium (1984) & J. Alfini Judicial A Korbakes et judicial constitution, (“[t]he that of most 36 article of the Connecticut unlike jurisdiction powers states, specifically does not delineate other Const., comprising judicial department”); see, e.g., art. Del. the courts Supreme Court, IV, (“[t]he Chief of his or her § 13 Justice of case vacancy [s]tate, disqualification, incapacity, a absence from the or if there be by seniority office, qualified in that the next and available who Justice in rank to the shall be head of all the next Chief Justice administrative [s]tate, supervisory general courts and shall have administrative and Const., powers courts”); supreme (A) (“[t]he § over all the La. art. 5 court supervisory jurisdiction Const., general courts”); over all Mo. art. has other supreme V., (1) (“[t]he general superintending § 4 court shall have control Const., supreme tribunals”); VII, (2) (“[the art. 2§ over all courts Mont. supervisory Const., general courts”); has control over all N.M. other court] VI, (“[t]he [s]upreme superintending . . . art. shall have control [c]ourt VII, Const., supreme courts”); (1) (“[t]he all inferior Wis. art. court over authority courts”). superintending administrative all shall have over authority free-floating that would not afford basis of any provisions to overrule code for reason that we deem proper. however, supervisory I that this court’s agree, authority adoption extends to the of rules to guide trial courts in both the civil and criminal context. None theless, such is exercised in the absence of rule, gaps supplement when there are in a rule or to procedures See, e.g., Gould, under a rule. 1, 15, rule, Conn. 695 A.2d 1022 (1997) (prescribing conjunction practice with rule of trial existing vesting jury court with discretion to allow replay videotaped deposition testimony, open that “it must be done in court supervision under the of the trial and in judge presence parties and their counsel”); State Conn. Patterson, 385, 400, 645 A.2d 535 (1994) rule, practice, consistent with rules of (prescribing present trial to be in requiring judge during voir dire criminal cases imposing but further limitation not addressed in rule that party neither can waive this Holloway, State v. 209 requirement); 636, 645-46, Conn. procedure 553 A.2d 166 forth to (setting address claim in peremptory of racial discrimination exercise of chal lenge pursuant Kentucky, 79, 106 to Batsonv. 476 U.S. S. L. 1712, 90 [1986], procedural Ct. Ed. 2d 69 in absence of denied, cert. 490 U.S. rules), 1071, 2078, 109 S. Ct. 104 L. adopted Ed. 2d 643 This court also has such (1989). judicial rules when a gloss required was to save a law from constitutional v. infirmity; see, e.g., Weston, Roth 202, 232, 259 Conn. 789 A.2d 431 (2002); pro and has prescribed vided definitions to terms under law existing none; see, where there was v. e.g., Ireland, Ireland 246 413, 432-33, powers Conn. 717 A.2d 676 (1998); that appellate still are reserved to the courts under the code. I am any unaware of case which this court has deter authority mined that it has inherent adopt to a rule by that contravenes an existing adopted statute, rule — judicial rule regulation making there is no —when 526 Indeed, previously with law.23 this court

conflict another supervisory of its the limits inherent recognized has existing an authority when would arise with a conflict A.2d 855-56, 661 Day, 813, See State v. rule. specific explore not in detail the (“We 539 need (1995) S. Wiggins, 168, v. U.S. holdings [McKaskle here, For purposes 79 L. Ed. 2d 122 our (1984)]. Ct. Supreme States it suffices to that United recognize standby a definition of the role of Court has sanctioned imposed exceeds limits significantly counsel that our Exercising Practice Book 964§ [now 44-5]. safeguard inherent to the administration in this we committee justice state, urge standing to formulation of new standards on rules consider the standby counsel, provide for active role for a more principles with consistent the relevant constitutional Sanabria, see opinion.”); articulated also State n.16 this court could supra, (noting 192 Conn. 691 power proce- establish supervisory have exercised its required provision effect to constitutional give dures if jury legislature judges for both grand proceedings do Superior Court had failed to so). entirely appropriate I it is Finally, would note that given have been for Supreme law Palmer in The United States Court case cited Justice opinion contrary. States, concurring In his is not to the Dickerson United 428, 437, Supreme (2000), L. Ed. 530 U.S. S. Ct. 2d 405 primacy prescribing Court noted its lower courts rules of evidence over constitutionally are mandated. The code limit this court’s that does not authority and conflict to enforce constitutional mandates therefore does not principle. with that rules of evidence To the extent nonconstitutional law, Supreme implicated, unlike are under Connecticut the United States authority by specifically adopt an with to rules of evidence Court vested subject approval. Id.; Congress, congressional generally see J. act of D., pp. Weinstein, Rule-Making (1977) II. Reform Court Procedures c. (entitled Origins Rule-Making Power of Federal 55-61 “Historical States, 341, 608, Courts”). In McNabb v. United 318 U.S. 63 S. Ct. simply proposition (1943), Supreme that L. Ed. 819 Court addressed the ajurisdiction supervisory dispute highest is not in here —that court has adopt can bind lower courts. rules that authority. such Rules of evidence are in fact rules guid- process trial, appellate procedure. of a not More- ing may many years over, appellate it be since some court presided have over judges trials, appellate and some may have had little time as trial advocates or judges appointment as trial court before their judges appellate bench.24 Trial court are in the best position practical problems to discern the that eviden- 24Indeed, Supreme justices some United States Court have raised such respect approval proce with concerns to that court’s role in the of rules of Procedure, (1944) dure. See Order re Rules of Criminal 323 U.S. 821-22 (Frankfurter, J.) (“That power, may empow the federal courts have be ered, procedure litigation to make rules of for conduct of has been century quarter experience proves justice settled for a and a .... And profits responsibility small, rule-making standing if the for such be vested in a body rule-making legislation generated by particular rather than be left to fifty years . . . the last controversies. For the Justices have become neces sarily direct, day-to-day removed from contact with trials in the district they largely opportunities courts. To that extent are denied the first-hand vividly realizing procedure promote for what rules of are best calculated to justice. largest especially measure of These considerations are relevant to the formulation of rules for the conduct of criminal trials.” [Citation omitted.]). Douglas suggested opposi Justices Black and in their statement in Supreme tion to the Court’s submission of Rules of Civil Procedure to Congress approval Congress for amend law to substitute the Judicial Supreme approving Conference for the Court in the role of the rules. See Procedure, They (1962). Order re Rules of Civil 374 U.S. 865 noted that the participation peripheral court’s was in that the conference and its commit drafting complained improper tees did the actual of the rules and it that was approve preside for that court to and rules then later over constitutional adjudications. challenges Id., prominent legal those rules 869-70. A Weinstein, scholar has voiced similar concerns. See J. of Court Rule- Reform Making (1977) p. (“Suggested Changes Procedures in National Rule- Supreme any Making adopt .... Process Court should not rules for except experience heavy court itself. The lack of trial and the work load expertise give regulated itsof members it little in most of the fields rule prevent adequate study Although imprimatur of the issues. its has the advantage bestowing rules, Supreme prestige on the it inhibits the impartially construing and other courts from the rules in accord with the Constitution, statutes, appropriate relationships.”). federal-state These statements further indicate that it would not violate some constitutional principle jurisdiction highest interpreting, for the court of a to be limited to to, body considering legal challenges promulgated of court rules body highest some other than the court. solutions. practical and to offer rise to

tiary give issues necessary than those evidentiary rules, other Because a bal- concerns, often reflect to address constitutional by way of considerations, crafting them policy of ancing rule judicial making, type process through a legislative mem- that includes advisory an committee guided areas and eviden- practice various bers of the bar from by way eminently sense than makes more tiary experts, courts have in which the adjudicative process an necessarily the who do not advance parties before it by a rule. Accord- implicated given broader concerns part majority’s conclusion with the disagree I ingly, authority courts have opinion appellate that the I of its Sadly, the result in of the code. provision to overrule through to follow may legislature motivate the this case rules to contemplated bring action previously on body, which supervision of evidence under rules adopt has majority acknowledges this court. that would bind of evidence II no author- that this court has my In conclusion light admissibility for the liberal rule ity to reconsider applied was cases, which bad acts in sex crime prior case, I turn present with the code in the in accordance appeal as presented the state’s question to the concluded that Appellate properly whether the statute, General Statutes degree kidnapping the first unconstitutionally applied vague (a) (2), 53a-92 the basis of our decisions facts of this case. On and State Salamon, in supra, 287 Conn. Sanseverino, in which we altered supra, stat- interpretation kidnapping long-standing our majority’s decision to overrule with the ute, disagree I Sanseverino the defen- its conclusion that support judgment to a case is not entitled present dant in the in the first kidnapping for acquittal on his conviction insufficiency proof was caused “any because degree Salamon, subsequent in the law change under rather than the failure to government’s muster sufficient I that, present evidence.” conclude in the (1) case: sufficiency analysis of the evidence is appropriate, as it Salamon; Sanseverino and was in and no (2) reasonable jury could found, have on the basis of the evidence before it, necessary the abduction for a kidnapping only because: (a) necessary restraint was that incidental assault; the sexual there was (b) no evidence of force or intimidation.

A I my with begin strong disagreement majori with the ty’s decision to overrule our Sanseverino holding that the defendant was entitled a judgment acquit tal, which three members of the present majority joined than less two months and with ago, its decision to do so on a ground squarely presented that was to them in only the dissent. Not do I disagree majority’s with the Sansev characterization and determinations regarding erino, but I am also troubled its respect lack of for principle of stare decisis in its willingness to cast precedent persuasive aside without justification. See Vasquez v. Hillery, 474 U.S. 265-66, 106 S. Ct. 88 L. Ed. 2d 598 (1986) (“[Stare contributes to decisis] system of our integrity constitutional of govern ment, both in appearance and in fact. . . . [A]ny path detours from the straight of stare decisis in our past have occurred for articulable reasons, only when the has felt obliged opinions its bring [c]ourt experience into with agreement newly and with facts ascertained.” quotation marks omitted.]); [Internal Transport, Hummel v. Marten Ltd., 477, 494, 923 A.2d 657 (2007) (“The doctrine of stare decisis coun sels that a court should not overrule its earlier decisions unless the most reasons and cogent inescapable logic require it. . . . It important application is the most theory consistency decisionmaking legal our of the notion obvious manifestation and it is an

culture consistency itself has normative decisionmaking major- omitted.]). marks quotation value.” [Internal precedent strikes such recent ity’s decision to overrule following As the these concerns.25 very heart of at the may demonstrates, the considerations discussion simply are stare decisis adherence to outweigh strict present. not Salamon, this court defendant had asked

In decisions; kidnapping of and overrule a line reconsider Luurtsema, State 179, 201-203, v. 262 Conn. see, e.g., had held that in which this court A.2d 223 (2002); of movement degree of restraint or period no minimum restraint even when the necessary offense, for that is offense. While underlying to an merely is incidental Salamon we heard court, argu- pending was before Sanseverino, State supra, 287 Conn. v. ment concurrently, cases decisions in the two released the with Salamon and with the intention case, as the lead to the bench provide guidance would that the two cases adopted had the framework application bar, Salamon, supra, results. See v. yielded different directly may whether recognize not bear on that stare decisis concerns 25 I properly could take similar because this court to overrule Sanseverino currently timely light the state’s motion for reconsideration action in bear, however, pending do on before us. Such concerns effect decision, majority’s the framework set forth which is to overrule sub silentio only Salamon, applied that case differs from Sanseverino because yielded application a in Salamon result of the framework in that acquittal. present avoiding judgment majority in the seeks case— Sanseverino, (“[In Salamon, supra, 287 Conn. 549-50 n.34 we] See State juror that, could find that the restraint because no reasonable concluded imposed to the com on was not incidental had [the victim] [the defendant] victim], against was entitled the sexual assault [the [the defendant] mission of acquittal kidnapping charge. judgment v. Sansever on the See [State to a by contrast, say present case, ino, supra, we cannot In 287 Conn. 625]. requires that the defendant restrained evidence the conclusion that the reasonably indeed, juror solely purpose assaulting her; victim for the engaged was in which the defendant find that the assaultive conduct could merely victim.”). to his restraint of the incidental 287 Corm. 549 n.34 its with (contrasting holding Sanseverino').

In State Salamon, supra, we con- prevent cluded that the intent to the victim’s liberation required for an abduction —and thus a kidnapping— requires necessary more than the something restraint and incidental crime. we underlying Although reaffirmed our rule that no minimum long-standing period of restraint or of movement is degree necessary, we determined that guiding principle is whether “[t]he part was so much the [confinement movement] of another substantive crime that the substantive crime could not have been committed without such acts.” quotation (Internal omitted.) Id., marks 546. We con- cluded that a question jury. this determination is for the Id., 547-48. Because we announced a new rule, the defendant would have been entitled to a retrial if we solely had viewed the case as instructional implicating Salamon, error. The defendant in had however, claimed that he was entitled to a judgment acquittal under interpretation the new adopt that he the court to urged “in because, of the evidence adduced at light trial, no juror reasonably could conclude that the restraint imposed on the victim was not incidental to the restraint used in connection with the assault Id., of the victim.” Despite 548-49. the fact that there was no doubt that the state had adduced sufficient evidence to convict the defendant under the law as it existed at the time trial, sufficiency we nevertheless conducted a of the analysis specific evidence and examined in detail the evidence adduced at trial, concluding that a retrial was warranted because the facts were such that a reason- jury able could find a under the new rule. kidnapping Id., facts, juror reasonably 549-50 the basis of these a (“On could find that the defendant’s restraint of the victim merely was not incidental to his assault of the victim. ... In light evidence, moreover, juror a reason- to

ably pulled find that the the victim could defendant her, for ground primarily purpose restraining fingers and that her and his her mouth put he struck prevent her from in an effort to subdue her and to escape. not In help for so that she could screaming circumstances, say such we cannot that the defendant’s necessarily was to his restraint of the victim incidental assault victim. the defendant’s conduct Whether is a kidnapping, therefore, question constituted a factual by properly for determination instructed This jury.”). precedent approach requiring was consistent with our analyze sufficiency us to a claim of evidence prior to a of instructional error that would result claim Padua, State for a See the case new trial. remanding 138, 178-79, (“[interests 869 A.2d 192 (2005) judicial efficiency, appellate policy and funda sound require mental court address a reviewing fairness to insufficiency prior defendant’s of the evidence claim a matter for because of trial remanding error”); retrial Sanseverino, supra, also n.9 see Conn. 651 well settled that we would (Zarella, J., dissenting) (“it is sufficiency of prior resolve the evidence [a claim] any error, claims of instruc addressing including trial any tional impropriety, jeopardy avoid double issues”).26 Sanseverino did not ask expressly defendant presented

the court to reconsider the issues that were Salamon, to us in instead claimed the statute applied was for to the facts of his vagueness void Sanseverino, supra, State case. v. 287 Conn. 618-19. Nonetheless, in the considerations relevant addressing namely, to a a vagueness challenge, void for whether ordinary person reasonably could have intelligence recognize jeopardy necessarily 26 I that a successful claim would double acquittal judgment result in a because the constitution mandates such a result, applied that framework in Salamon and Sanseverino whereas we jurisprudential due more to concerns. criminal; State v. his conduct was on notice that been Koczur, (2008); 947 A.2d 287 Conn. that went had articulated concerns defendant Sanseverino, State Salamon. in holding of our heart defendant contended Specifically, the supra, 619. “ wholly incidental imposed was ‘the restraint ” assault.’ Id. of the sexual commission sufficiency not raised a the defendant had Although such appeal, preserved he had of the evidence claim on for posttrial judgment trial via a motion a claim at were directed appeal on acquittal, arguments and his support would such whether the facts of the incident at necessarily, such a con- thus, and kidnapping charge, a reasons, vagueness we eschewed viction. For these adopted analytical framework applied challenge Salamon, under our well evaluated the evidence sufficiency of the evidence27 established test for con- jury could have that “no reasonable concluded our kidnapping light the defendant of a victed v. Ritro- Id., 625; see also State in Salamon.” holding vato, (stating A.2d 1079 36, 50, (2006) 280 Conn. mindful that “we must be well established rule that a judicial duty deciding to avoid court has a basic [t]his exists ground issue if a nonconstitutional constitutional Therefore, consistent dispose case”). will we justice judicial economy, interests of with the Sanseverino, it acquittal judgment rendered retrial prevail not on clear that the state could was in Salamon. In so doing, under the new rule set forth the Sanseverino view the dissent’s majority rejected sufficiency support reviewing a criminal of the evidence “In two-part First, apply the evidence in the test. we construe conviction we Second, sustaining whether light verdict. we determine most favorable to reasonably upon drawn therefrom construed and the inferences the facts so reasonably that the cumulative could have concluded of fact] [finder beyond (Internal guilt a reasonable doubt.” the evidence established force of Martin, 135, 147, quotation omitted.) 939 A.2d marks (2008).

534 that the case should be remanded for a new trial to present another more evi- give opportunity the state incidental the restraint. See dence on the nature of Sanseverino, supra, J., v. 287 Conn. 657-58 (Zarella, Indeed, majority concluded, “[c]ontrary dissenting). prof- to the dissent’s assertion that the state ‘could have present support additional evidence in the case to fered’ had it had kidnapping charges knowledge rule announced in we have found Salamon, nothing any the record to indicate that there was such evi- Id., dence.” 625 n.16.28 majority it is unclear

Although whether distin- by two guishes these cases virtue of the fact that the expressly defendant Sanseverino did not raise a suffi- ciency of the evidence if claim, claim that successful Fernandez, results in judgment acquittal; State 1, 21, apply Conn. 501 A.2d 1195 we did in fact (1985); sufficiency analysis in that case. It is not without precedent jurisprudence29 under our and that of other courts to reframe an issue raised resolve the matter presented in a manner most consonant with the inter- justice judicial economy. ests of supported by that, The correctness of this conclusion is the fact when postappeal response the state filed a motion in to our statement that we willing motion; Sanseverino, supra, would be to consider such a State v. n.16; represented any 287 Conn. 625 it has not that it has additional evidence proffer. supervisory powers justice Pursuant to our over the administration of judicial economy, appellate and in the interests of tribunals have discretion parties’ way to construe the claims and resolve issues in a that is different heading they given See, from the formal or discussion that are in a brief. e.g., Bridgeport Corp., Rosado v. Roman Catholic Diocesan 276 Conn. 191-92, (2005) (“Upon 884 A.2d 981 review of the record and the briefs of parties, parties due and after consideration of the claims raised argument, question adequate at oral we conclude that the certified is not an multiple appeal. Consequently, statement of the issues raised it is necessary expand question to reformulate and to the certified to reflect accurately presented. See, Hospital e.g., Vega, more the issues Stamford n.1, may modify 674 A.2d 821 court certified [1996][this questions framing presented].”). to render them more accurate issues 260, Allen, (2d 127 F.3d Indeed, United States In the case, in this that regard. Cir. is instructive 1997), instructional error and had raised a claim of defendant appeal on regarding a claim of void for vagueness statute under element of the federal extortion scienter insufficiency for he was but not a claim charged, which Id. The court concluded “that of the evidence. [the a is better framed as vagueness argument defendant’s] mani- sufficiency evidence; that to the challenge if we were to address injustice fest would result [the without reach- jury instruction argument defendant’s] sufficiency and that the evidence was issue; ing the elements of the offense prove insufficient to one of The court reasoned beyond a reasonable doubt.” Id. satisfy sufficiency of the evidence to “[t]he requirement particular in a case is a threshold scienter Id., a 264. vagueness challenge.” issue obviates procedural posture Sanseverino, with the in Consistent that, court in Allen noted the defendant although appeal, preserved not raised such a claim on he had had acquittal. a motion for making judgment it at trial injustice court concluded: “Manifest would Id. The sufficiency result here if we failed to consider the . . . void-for- the evidence. First defendant’s] [the closely sufficiency argument is related vagueness . . . even if we did not reach the Second, challenge. sufficiency have to vacate the verdict issue, we would jury instructions and remand for a new trial because in for the reasons stated section were flawed [another] us to do that in this case opinion. ... of this For issue of whether the addressing looming without conviction could support was sufficient to evidence futility in a second conviction that would result . . appeal. Moreover, in . have to be reversed a second a unjust subject the defendant it strikes us as was insuffi- if the evidence at the first trial second trial omitted.) Id. (Citation cient to convict.” in Salamon applied were propositions These same Sanseverino, present case, they apply claim. vagueness in which there is also a void for support the evidence is sufficient to convic- Whether and the success precondition tion is a to the need for Thus, claim. of our vagueness light of a void for evidentiary kidnap- standard for reexamination analysis Salamon, sufficiency of the evidence ping response regarding an to the contentions appropriate were advanced in both of these vagueness void for that any may an indication case, cases. In there be given proffered be sufficient that either the evidence could under the new standard to warrant retrial or the record may evidentiary possibly that the state gaps reflect a restraint that might could fill on retrial that establish beyond underly- which was incidental to the went that record, When it is manifest from the how- ing offense. ever, necessarily acquittal, that remand would result in injustice it would work an on the defendant and be economy contrary judicial to the interests of to order a retrial. Ellyson, reliance on United States majority’s 2003), support

326 F.3d Cir. for its (4th always appropriate conclusion that retrial is because a error, new rule renders a claim one of instructional is misplaced. In that wherein offense at issue case, possession was of child the United States pornography, Supreme applied Court had a constitutional gloss possession case, that statute another decided after in Ellyson appeal the trial of the defendant but while his required prove was which the state to differ- pending, necessarily required ent that would have element entirely proof i.e., different that the was that image — child, “appears of an actual not a virtual that image sexually explicit ... conduct.” engaging be a minor Id., 529-30. trial court’s

The Fourth Circuit concluded that the consistent with valid Circuit Court instruction, although was erroneous in precedent trial, light at the time of the verdict had to be interpretation of the new and that Id., on that basis. 530-31. That determination set aside analyzed sufficiency the court notwithstanding, the evidence in order to determine whether the defen- 532-34. acquittal. Id., dant was entitled to a judgment constitutionally the state The court determined retry because, trial, could the defendant at the time of satisfy the then existing its evidence was sufficient to standard, jeopardy and thus the double clause did legal present Id., not an obstacle to retrial. 532-33. The court further, however, and noted that there was evi- went legal dence that satisfied the new standard as of one child and other evidence as to the other images satisfy the new arguably could standard. images Id., Thus, appropriate. 534-35. a new trial was analysis entirely

The Fourth Circuit’s is correct when a in the law appropriate change that retrial requires proffer additional, the state to critical evidence prove Elly son, to its case. In the record made it manifest entirely body of evidence that that there was an new put the state could forth whether some of regarding Thus, involved actual children. See id. images permitted more, court the state to do when it was evi dent that there was more to do. These circumstances are to the concerns about fairness to the analogous permit to retrial state that have motivated this court to because the evidence would have been sufficient evidentiary support a conviction but for an error. See 539, 200 Conn. Gray, State v. 512 inadmissible but that defendant’s confession was A.2d 217 (concluding acquittal, proper was because retrial, opposed as exclusion and, light evidence otherwise sufficient introduced evidence to confession, state have might would have been replace cumulative), it that otherwise 423, 93 L. Ed. 2d denied, 479 U.S. 107 S. Ct. cert. Carey, 487, 496-98, accord v. (1986); evidentiary error enti (1994) (concluding A.2d 840 but hearing revocation probation to new tled defendant error, evidence otherwise because, but for acquittal not appellate or an cases, In these a new rule sufficient). evidentiary that we could not gap an ruling created unable to fill on retrial. that the state would be presume however, that there are equally apparent me, It is permit retrial appropriate in which it is not cases adopted. There a rule established or when there is new possible to discern that the are cases in which it is complete story as is relevant state has told in such cases double Although of the offense. elements retrial, question of what jeopardy would not bar constitutionally does not dictate what we may we do of fairness to the defendant should do the interests Nelson, Lockhart economy. See v. 488 U.S. judicial (double L. Ed. 2d 265 33, 39-42, 109 285, 102 (1988) S. Ct. reversal was based jeopardy does not bar retrial when suffi evidentiary error and evidence was remaining on Gray, supra, State support conviction); cient to Sanseverino, In kidnapping Conn. 539 (same). clearly part were crime of sexual assault underlying The victim of a well-defined transaction of events. accord, sexually was walked into the room of her own as soon as the defen assaulted, and then left the room Sanseverino, supra, released her. State dant step transaction, Because each of that from Conn. 615. fled, to the time she was the time the victim entered evidence, well-defined it was clear that there so could have adduced from nothing was further state victim, only crime, witness to the that would over and above have showed that there was restraint necessary the crime of sexual assault. to commit IIB part n. 16. As the discussion in of this dissent Id., 625 case. I can indicates, present the same is true for the reason, why any think of no therefore, defendant should pretrial be to a relegated status on his con- kidnapping viction while the state decides whether to reprosecute, when it is clear from the record that the defendant is acquittal entitled to a judgment Indeed, or dismissal. majority’s universal rule of retrial will no doubt give pause to trial judges as to whether to exercise their discretion to dismiss these cases for insufficient evi- 54-56.30 State pursuant dence to General Statutes § Kinchen, 243 Conn. 690, 703, 707 A.2d 1255 (1998) (“a trial court is empowered to dismiss a case for insuffi- cient cause only under 54-56 in the most compelling of circumstances”). The defendants in these cases should not have to bear this burden.31 Salamon Sanseverino provide were intended to guidance such Therefore, the courts. I disagree majority’s with the conclusion that Sanseverino should overruled, be which in effect constitutes a sub silentio overruling in Salamon to determine applied the framework we had acquittal whether proper. or a new trial is

B my In light sufficiency conclusion that a of the analysis appropriate evidence context, I turn application to its present to the facts in the case. The provides: having jurisdiction General Statutes 54-56 “All courts jurisdiction criminal cases shall at all times have and control over informa pending may, any time, upon tions and criminal cases therein and at motion defendant, any dismiss information and order such defendant dis if, opinion charged court, in the of the there is not sufficient evidence or justify bringing continuing placing cause to of such information or the person accused therein trial.” on majority’s The effect of the conclusion that retrial in these cases is appropriate may, fear, ultimately I undermine one of the bases for our Salamon, namely, holding previous interpretation kidnap that our prosecutors ping encouraged any kidnapping charge statute “to include a Salamon, supra, robbery.” involving State case a sexual assault or present Sanseverino Conn. 544. If the evidence in case is not expressly insufficient, overcharging deemed to be I foresee much of the same kidnapping of the crime of in the future. my inform Sec- principles conclusions.

following legal pursuant to which the defendant was (a), tion 53a-92 part: person “A is convicted, provides guilty in relevant when he degree the first abducts kidnapping person ... he restrains the person (2) another injury upon inflict (A) physical abducted with intent to “ ” sexually him . . . ‘Abduct’ him violate or abuse or prevent person as “to a with intent defined restrain him in holding his either or (A) secreting liberation place likely found, (B) using where he is to be or not physical or to use force or intimidation.” threatening previously As we have (2). General Statutes 53a-91 qua of the crime of abduction is the “sine non noted, Salamon, supra, 287 Conn. 534. kidnapping.” State “ ” statutes, in these is defined as: ‘Restrain,’ used intentionally person’s “to restrict movements unlawfully substantially as to in such a manner interfere liberty place him from one by moving with his place him in the where another, confining or either which has aplace the restriction commences or he . . moved, been without consent. . consent’ ‘[Without to, deception any is not means, (A) (B) but limited whatever, acquiescence victim, including means years if than old an he is a child less sixteen or incompetent person parent, guardian and the other custody person lawful control or having or institution acquiesced of him has not in the movement or confine- ment.” General Statutes 53a-91 (1).

We dealt with the intersection between restraint and Salamon, supra, abduction in State Conn. 534-35, resolved an between the intent nec- ambiguity when we necessary an essary for a restraint and intent for prevent We intent to abduction. concluded necessary requires victim’s liberation for an abduction necessary more than the restraint and inci- something crime. defendant underlying Id., dental to the 542. “[A] may and another sub- kidnapping be convicted of both to, or after any prior during at time if, crime stantive victim is moved crime, other the commission of that criminal independent has way in a that or confined an was restrained to is, the victim that significance, necessary to accom- was that which exceeding extent Whether the move- the other crime. plish complete merely incidental the victim is confinement of ment or depend will on necessary for another crime to and Conse- of each case. facts and circumstances particular a reasonably supports find- the evidence quently, when was not merely to the incidental that the restraint ing ultimate separate crime, the other, of some commission by jury. made For must be factual determination determination, jury should that purposes making factors, relevant the various instructed to consider be the victim’s move- and duration of the nature including whether that by defendant, or confinement ment the commis- during confinement occurred movement or restraint was offense, whether the separate sion of the whether offense, separate in the nature of the inherent summoning the victim from prevented the restraint defen- reduced the whether the restraint assistance, the restraint cre- detection and whether dant’s risk of the victim’s risk or increased significant danger ated a by separate posed independent harm 547-48. Id., (Emphasis original.) offense.” more than at which restraint becomes The line crime is underlying incidental necessary and in Sala- the factual scenarios by contrasting exemplified Salamon, and Sanseverino. mon had In the defendant was behind as she the victim from approached her the back of stairs, grabbed ascending flight her down her fall, her to and held neck, causing When the Id., break free. 549. as she struggled hair punched her in scream, the defendant victim began into her fingers to insert his attempted mouth and five approximately for After restrained being throat. Id. was able herself and minutes, the victim to free flee why help. for Id. it was unclear the defendant Although victim; id., n.34; had restrained the accosted and jury reasonably we concluded that a could have found that the defendant’s five minute restraint of the victim merely to, was not incidental and therefore had inde- pendent from, Id., his assault of the victim. significance jury Specifically, 549. we concluded that reasonable “pulled could find that the defendant had the victim to primarily purpose her, for the ground restraining put and that he struck her and his in her mouth fingers prevent an effort to subdue her and to her from help escape.” for so that she screaming could not Id. we remanded the case for a new trial. Accordingly, Id., 550. v. Sanseverino, supra,

In which interpretation was the first case that had relied on the Salamon, of the kidnapping statute set forth in defendant, bakery, the owner of a had followed the one victim, employees, of his after she walked into a room, pushed up sexually her a wall and storage against ejaculated, assaulted her. After he had the defendant released the victim and she was able to leave the room. Id. We reversed the defendant’s conviction kidnapping and a judgment acquittal directed because we deter- jury mined that “no reasonable have could convicted the defendant of in the first in kidnapping degree light of our . . . holding Salamon.” Id. Salamon, Sanseverino

In represented contrast quintessential example of the discrete set of facts that statute in Salamon interpretation our kidnapping was meant to The guard against. physically defendant only period restrained the victim for the brief that place immediately sexual assault took thereafter released her and allowed her to leave the room. Id. There was simply no other evidence that the defendant prevent intended to the victim’s liberation some man- we Accordingly, the assault. Id. independent ner kidnapping conviction reversed the defendant’s to the trial court with direction remanded the case Id., 641. charge. not on that judgment guilty render I analytical framework, Salamon’s Again, applying case present the record would conclude discrete set of circumstances illustrates the same No acquittal in Scmseverino. warranted a judgment proper under the stan- jury find, legal reasonable could was sufficient evidence to establish dard, that there intent for possessed requisite defendant that the because the defendant had restrained abduction necessary accomplish victim no more than was asked the victim to go sexual assault. The defendant store, in the and she went. He closed to a room it, but not in such a manner door, may have locked of her own voli- prevent leaving as to the victim from underpants victim’s slacks and tion.32He removed the on a penetrated her while she sat vaginally and then protested, the defen- desk in the room. When the victim and return to work. dant let her leave the room occurred when the only applied restraint to the victim during and then clothing defendant removed her testified, As the victim penetration actual act of itself. hurt,” she her and “it penetrated when the defendant . move” . . . desk . . was able to got “said no off the This added.) (Emphasis and “went back to work.” to undoubtedly necessary and incidental restraint was Cf. State the sexual assault itself. accomplishing restraint Sanseverino, supra, (“The 287 Conn. vic- grabbed . . . when the defendant occurred [the wall, pin- pushed against behind and her from tim] testimony had as to whether the defendant The victim wavered in her however, testimony, had left the room Her indicated that she locked the door. Therefore, assuming unimpeded the defendant’s assistance. and without only locked, inference that could be drawn was reasonable the door testimony the door was locked from the inside. from the victim’s is that leaving Thus, than if restrained the victim from the locked door no more merely it had been closed. pressing arms her head with his arm and ning her over body keep to her from These against moving. his hers solely purpose clearly actions were undertaken for the initiate, keep and to the defendant allowing [the away from, advances.”). from his sexual moving victim] in accordance with the considerations that we Thus, Salamon: the restraint solely was directed set forth assault; it purpose accomplishing at the the sexual it only assault; lasted for the duration of the sexual the victim from purpose preventing was not for the assistance; it did not increase the dan- summoning ger of harm to the victim.33 speculate theory might if I Even were to as to some that the state retrial, going advance on such as that the victim was deceived into occurred, theory supported room where the assault is not the facts byor law. The victim’s movement from the store office to the room where restraint, the assault occurred did not constitute a as there was no evidence go deception that the defendant forced the victim to there or used to trick going (1). her into there. See General Statutes 53a-91 The victim testified go room, that the defendant had told her to to another which she could not identify despite probing; given the state’s she did not indicate that he had any why her reason as to he wanted her to do so. The state adduced no purpose directing evidence as to what she believed his to be in her there employees particular generally or even whether or she would enter that Thus, room. there is no evidence that the defendant lied or created a ruse get go Smith, 147, 152, the victim to to the room. Cf. State v. (1985) (defendant stating 502 A.2d 874 lied to victim when that he needed highway him her to show entrance to but that he would return her home afterward order to “lure the victim into his control” and “[deceive her] remaining him”). room, into with After the victim entered the there is no leaving moving, evidence that the defendant restricted her from or from other than when he removed her slacks and underwear. Cf.State Sansever ino, supra, (“[t]he immediately 287 Conn. 625 defendant released [the victim] ejaculated”). after he had note, however, that, supported I even if the evidence had the conclusion going that the defendant had “deceived” the victim into to another room in thereby restraint; (1) the store and established a General Statutes 53a-91 (A); that restraint still would not be of the substantial nature and character necessary clearly an constitute abduction. Because the defendant could sexually open not assault the victim out in the aisle of the store in front of witnesses, by causing to the extent that he restrained her her to move to room, about, nothing the location of which the record reveals this case nearby

is no different than if the defendant had ordered the victim into a supply independent signif- closet. Such restraint would have no criminal icance. Therefore, principled way I can see no to distinguish Sanseverino. present the facts of the case from those cases, In both employers the defendant followed the employee victims a private premises into room on the they sexually where assaulted the victims. Once the point, sexual assaults had to a certain progressed defendants released the victims and allowed them to leave the room. abduction, merely

There is more to than however, to, whether the restraint was incidental considering independent of, rather than crime. In underlying present case, the state has failed to establish the abduction, namely, other elements of an that the defen- place dant either had secreted the victim “in a where (1) likely found”; not to be General Statutes [s]he [was] 53a-91 (2) (A); held her or (2) “using threatening physical to use force or intimidation.” General Statutes starkly 53a-91 It is (2) (B). apparent the state did not adduce evidence that the defendant secreted the in place likely victim a where she was not found, be a room within the store itself. Cf. as she was v. Suggs, 733, 759, 553 A.2d 1110 (1989) had (defendant place secreted victim in where she was likely sexually not to be found when he assaulted her at in unlit field night containing abandoned car and old railroad was tracks, which behind garage fence).

Additionally, reasonably there is no evidence that supports a determination that there was force or intimi- any dation of kind. Although protested the victim ver- bally pants the removal of her and the during act of penetration, respond. the defendant did not The defen- dant did not threaten the victim did he verbally, nor pin strike her or her down. After the defendant vaginally penetrated victim, she off the desk and left the got impediment Thus, room with no from the defendant. there is no physical evidence of force or intimidation necessary establish the abduction for a kidnapping. A.2d 153, 175-76, 778 Burton, 258 Conn.

Cf. State when established and intimidation 955 (2001) (force escape, not shut so victim could held car door defendant victim’s seat, thereby ignored her pinning State v. out”); and let her stop the car “screams (force 561 A.2d 111 672, 679, (1989) 211 Conn. Paolella, established necessary for abduction or intimidation forcibly prevented leaving victim from when defendant gun); threatened her with house, up tied her 134, (1997) 703 A.2d 790 App. 47 Conn. Sinchak, of intimidation established force and threat (physical to victim’s head and threatened put gun when defendant A.2d 1193 dismissed, appeal her), (1999). authority figure was an

The facts that the defendant ability in and of victim was of limited mental and the A establish force or intimidation. themselves do not reasonably cannot employer from an mere command necessary for an intimidation or threat constitute the ques- into case, If that were the it would call abduction. every in which an criminality situation tion reprimand withstand a employee was forced to sit and abduction, unlike restraint by supervisor. Moreover, an provisions involving and other the Penal Code consent, does not take into account element of ability the victim when determining or mental age pre- there has been force or intimidation whether Cf. General Statutes 53a- § a victim’s liberation. venting involved in restraint includes of consent (1) (B) (lack person permis- without acquiescence incompetent General Statutes 53a-71 parent sion of or guardian);34 degree of sexual assault second (2) (person guilty (a) charge did not the defendant with the restraint 34 Inote that the information person. jury charged incompetent also was not of an or minor portion statute that taires into account the mental of the restraint competence of the victim. “mentally if victim is defective to the extent that such person other is unable to consent to such sexual inter- General course”); (person Statutes 53a-73a (a) (1) (B) of sexual assault in if guilty degree recipient fourth mentally incapacitated sexual contact is defective or they to extent jury that cannot Even if a were consent). to take into account the capacity victim’s mental in its determination as to whether she had been intimidated, despite the court, absence of instructions from the trial the evidence belies a conclusion she was so intimi- dated that she stay felt forced to in the room with the leave, defendant. When she wanted to she was able to do so, and the defendant neither said nor did anything stop her. Thus, because of the lack of evidence glaring any present case, “abduction” the judgment respect with to the kidnap- defendant’s conviction of in the first ping degree should be reversed and the case should be remanded to the trial court to render a judgment of not on that guilty charge. I Accordingly, part majority dissent from I of opinion as well. conclusion, my In I note that, case, this colleagues have disavowed positions recent taken this court with respect to both the effect of the code binding the circumstances under which judgment acquittal proper. Understandably, may the bench and bar be somewhat result, confused as am I. Like Shake- speare’s Puck, only I can apologize audience and it also suggest pretend that this has all been a bad dream.35 offended, this, mended, “If we shadows have Think but and all is That you appear. have but slumb’red here While these visions did And this weak theme, dream, Gentles, yielding reprehend. and idle No more but a do not you pardon, And, Puck, If we will mend. as I am an honest If we have scape serpent’s tongue, unearned luck Now to We will make amends you long; So, good night your ere Else the Puck liar call. unto all. Give me hands, friends, Shakespeare, if we be And Robin shall restore amends.” W. Night’s Dream,

A Midsummer act 1. sc. Treatise Bills of Notes Exchange, on p. of dernier resort viii. (1810), (“decisions [c]ourts authority”). Although in this are “binding [s]tate” possessed broad discretion in determin- admissibility under the facts and ing evidence case, of each this discretion circumstances individual law necessarily was constrained of evidence

Case Details

Case Name: State v. DeJesus

Court Name: Supreme Court of Connecticut

Date Published: Aug 19, 2008

Citation: 953 A.2d 45

Docket Number: 17710, 17711

Court Abbreviation: Conn.