State v. MirandaState v. Miranda
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Lead Opinion
Opinion
PER CURIAM.This case is before us for a third time. See State v. Miranda, 260 Conn. 93, 794 A.2d 506, cert. denied, 537 U.S. 902, 123 S. Ct. 224, 154 L. Ed. 2d 175 (2002) (Miranda II); State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998) (Mirandal).1 The defendant, Santos Miranda, appeals from the trial court’s judgment, rendered after remand from the Appellate Court, resentencing him to a total of thirty years imprisonment for his conviction of assault in the first degree in violation of
We reject the defendant’s claim that the judge trial referee who resentenced him lacked the statutory authority to do so. We agree with the defendant, however, that we should reconsider and reverse our conclusion in Miranda I. We therefore reverse the defendant’s conviction of two counts of assault in the first degree in violation of
*731The familiar facts and procedural history of this case are set forth in our decision in Miranda II, supra, 260 Conn. 93, and will not be repeated here. After our decision in Miranda II, the case was remanded to the trial court for resentencing. By this time, Judge Fracasse, who had presided over the defendant’s initial trial nine years earlier, had reached the mandatory retirement age of seventy prescribed by article fifth, § 6, of the Connecticut constitution, as amended by article twenty-seven, § 2, of the amendments, and had been appointed a judge trial referee. The defendant refused to consent, pursuant to
I
The defendant’s first claim on appeal is that Judge Fracasse, a judge trial referee, lacked the statutory authority to preside over the defendant’s resentencing hearing. Specifically, the defendant claims that § 52-*733434 (a) (1) allows a judge trial referee to preside over criminal proceedings only with the consent of both parties. Because the defendant expressly refused to consent to a judge trial referee, he claims that the trial court’s reliance on
II
After consideration of the supplemental briefs filed by the parties at our direction, we have decided to reconsider and reverse our conclusion in Miranda I that the defendant could be convicted of assault in the first degree in violation of
“This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law.” Conway v. Wilton, 238 Conn. 653, 658, 680 A.2d *734242 (1996). The doctrine of stare decisis “is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency.” Id., 658-59. Despite this adherence to past precedent, this court also has concluded that, “[t]he value of adhering to precedent is not an end in and of itself, however, if the precedent reflects substantive injustice. Consistency must also serve a justice related end.” Id., 659. When a previous decision clearly creates injustice, “the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision. . . . The court must weigh [the] benefits of [stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust.” (Citation omitted; internal quotation marks omitted.) Id., 659-60. “It is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations.” Barden v. Northern Pacific R. Co., 154 U.S. 288, 322, 14 S. Ct. 1030, 38 L.Ed. 934 (1894). “[T]here is a well recognized exception to stare decisis under which a court will examine and overrule a prior decision that is clearly wrong.” White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990). “In short, consistency must not be the only reason for deciding a case in a particular way, if to do so would be unjust. Consistency obtains its value best when it promotes a just decision.” Conway v. Wilton, supra, 662.
After careful reconsideration, we have become persuaded that our conclusion in Miranda I, supra, 245 Conn. 230, that the defendant could be convicted of assault in the first degree in violation of
The judgment is reversed in part and the case is remanded with direction to dismiss the two counts of the information for assault in the first degree and for resentencing on the one count of risk of injury to a child.5
Notes
We issued a brief per curiam opinion in the present case as a slip opinion on December 22, 2004, reversing our conclusion in Miranda I that the defendant could be convicted of assault in the first degree in violation of
We recognize that
In his initial brief filed in connection with this appeal, the defendant claimed that the trial court abused its discretion in resentencing the defendant by failing to consider adequately the sentence received by the victim’s mother. Specifically, the defendant claims that the court abused its discretion by resentencing him to thirty years incarceration, while the victim’s mother, who purportedly was the person who actually abused the victim, received a more lenient sentence. Subsequent to the defendant’s initial sentencing, the victim’s mother pleaded nolo contendré to charges of intentional assault in the first degree and risk of injury to a child. Miranda II, supra, 260 Conn. 99 n.4, citing Miranda I, supra, 245 Conn. 211-12 n.4. She received a sentence of twelve years incarceration suspended after seven years. In light of our conclusion that the defendant’s conviction for assault in the first degree in violation of
In Miranda II, supra, 260 Conn. 129, we endorsed the Appellate Court’s adoption of the “aggregate package” theory of sentencing. See State v. Raucci, 21 Conn. App. 557, 563, 575 A.2d 234, cert. denied, 215 Conn. 817, 576 A.2d 546 (1990). Pursuant to that theory, we must vacate a sentence in its entirety when we invalidate any part of the total sentence. On remand, the resentencing court may reconstruct the sentencing package or, alternatively, leave the sentence for the remaining valid conviction or convictions intact. Miranda II, supra, 129. Thus, we must remand this case for resentencing on the sole count on which the defendant stands convicted.
Concurrence Opinion
join, concurring. I agree with the conclusions of the per curiam opinion of this court that: (1) Judge Fracasse had the authority to preside over the resentencing proceeding of the defendant, Santos Miranda, despite the fact that Judge Fracasse had reached the mandatory retirement age of seventy; and (2) the defendant’s conviction on counts five and ten of the substitute information for assault in the first degree must now be reversed, despite the fact that we previously affirmed those convictions in State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998) (Miranda I). I, along with the justices joining me in this concurring opinion, write separately to explain the analytical route by which we reach the first conclusion, and to explain why we have now changed our minds and votes regarding the second conclusion.
*736I
The defendant claims that Judge Fracasse did not have authority, pursuant to
As both this concurring opinion and the concurring opinion of Justice Vertefeuille indicate, the question of statutory interpretation presented by this issue is which of two statutes, namely,
This tension between the potential applicability of two statutes, with different outcomes, presents a classic case of statutory interpretation. “The process of statutoiy interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Citation omitted; internal quotation *738marks omitted.) State v. Courchesne, 262 Conn. 537, 562 n.20, 816 A.2d 562 (2003).4
Because, subsequent to our decision in Courchesne, the legislature enacted General Statutes § l-2z; see footnote 4 of this opinion; I next address the relationship of that statute to the task of interpretation presented by this case. Section l-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” Thus, pursuant to § 1-2z, we are to go through the following initial steps: first, consider the language of the statute at issue, including its relationship to other statutes, as applied to the facts of the case; second, if after the completion of step one, we conclude that, as so applied, there is but one likely or plausible meaning of the statutory language, we stop there; but third, if after the completion of step one, we conclude that, as applied to the facts of the case, there is more than one likely or plausible meaning of the statute, we may consult other sources, beyond the statutory language, to ascertain the meaning of the statute.
It is useful to remind ourselves of what, in this context, we mean when we say that a statutory text has a “plain meaning,” or, what is the same, a “plain and unambiguous” meaning. This court has already defined that phrase. “By that phrase we mean the meaning that *739is so strongly indicated or suggested by the language as applied to the facts of the case, without consideration, however, of its purpose or the other, extratextual sources of meaning . . . that, when the language is read as so applied, it appears to be the meaning and appears to preclude any other likely meaning.” (Emphasis in original.) State v. Courchesne, supra, 262 Conn. 573-74 n.30. Put another way, if the text of the statute at issue, considering its relationship to other statutes, would permit more than one likely or plausible meaning, its meaning cannot be said to be “plain and unambiguous.”
Although I ultimately conclude that
*740I note that both the state and the defendant claim that the plain meaning of the applicable statutory language favors their respective interpretations. “[W]e have stated that statutory language does not become ambiguous merely because the parties contend for different meanings. ... Glastonbury Co. v. Gillies, 209 Conn. 175, 180, 550 A.2d 8 (1988). Yet, if parties contend for different meanings, and each meaning is plausible, that is essentially what ambiguity ordinarily means in such a context in our language. See Webster’s Third New International Dictionary, and Merriam-Webster’s Collegiate Dictionary (10th Ed.), for the various meanings of ambiguity and ambiguous in this context. For example, in Merriam-Webster’s Collegiate Dictionary, the most apt definition of ambiguous for this context is: [C]apable of being understood in two or more possible senses or ways.” (Internal quotation marks omitted.) State v. Courchesne, supra, 262 Conn. 571-72. In my view, that is the case here.
First, linguistically
Second,
Finally, reading
With respect to criminal cases, the legislature was even more explicit. The parties’ consent is required for the referral of “any criminal case,” with the following specific exceptions: a criminal nonjury case may be referred without consent to a judge trial referee assigned to a geographical area court; and criminal cases, other than Class A or B felonies or capital felonies, may be so referred for jury selection only, “unless good cause is shown not to refer.”
I conclude, therefore, that the meaning of neither
I look first to the language of the statute. That language is broad and inclusive in nature: “any other unfinished matters . . . .”
Additionally, that language must be read in light of the fundamental jurisprudential notion that “[t]he trial of a criminal case, and the ensuing appeal from the judgment of conviction, are not separate and distinct proceedings divorced from one another. They are part of the continuum of the process of adjudication.” (Internal quotation marks omitted.) Bunkley v. Commissioner, 222 Conn. 444, 459, 610 A.2d 598 (1992). Therefore, when a case, following an appeal, is remanded to the trial court for resentencing, the resentencing hearing is not a totally new proceeding; it is a continuation of the adjudicatory process that began in the trial court and was left incomplete by the subsequent remand after determination of the appeal. This jurisprudential notion also strongly suggests that the resentencing proceeding in this case was appropriately considered an “unfinished matter” within the meaning of
In addition, this interpretation is consistent with the state constitutional provision regarding the powers of *744state referees. Article fifth, § 6, of the constitution of Connecticut, as amended by article eight, § 2, of the amendments, provides in relevant part: “No judge shall be eligible to hold his office after he shall arrive at the age of seventy years, except that ... a judge of the superior court . . . who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court ... on matters referred to him as a state referee.” (Emphasis added.) The emphasized language was added to the constitution as part of the 1965 constitution, in order to make our system more efficient by granting referees, who prior thereto did not have the full powers of judges in cases referred to them, those full powers. See Conn. Constitutional Convention, Constitutional Committee Hearings, Resolutions and Rules, (August 24,1965) p. 35, remarks of former Justice Abraham S. Bordon, then judge trial referee (“I have a feeling that for the future efficiency of our court system that it would be preferable for judges who reach the age of seventy to retire but remain as judges .... I have a feeling that there has been a lot of waste in the energies of the State Referees in that they have no power to enter any orders which may come during the trial of a case before a State Referee.”); see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1967 Sess., p. 485, remarks of former Chief Justice Raymond E. Baldwin, then judge trial referee (proposed language “gives the additional powers of a state referee in a matter referred to him, to render a judgment, so that any attempt to attack the finding or any effort at an appeal, requires the same procedure as it requires . . . in an appeal from a Judge of the Superior Court or Court of Common Pleas so that we avoid all this procedural rigamarole that we used to have and it also gives him the right to decide questions of law as well as to resolve issues of fact”). Although
Finally, given this analysis, which strongly suggests that, prior to the enactment of the consent provisions of
Thus, I disagree with the defendant’s suggestion that giving
II
I turn now to the principal question in the case, namely, whether the defendant’s convictions under counts five and ten of the information for assault in the first degree must now be reversed. Again, I agree with the result reached by this court in part II of its per curiam opinion, namely, that the convictions must be reversed. I now conclude, however, that the provisions of
*747The defendant was not the perpetrator of the physical assaults on the victim. Miranda I, supra, 245 Conn. 211. The perpetrator was the victim’s mother. Id. The defendant, however, who was the boyfriend of the child’s mother, “had established a family-like relationship with the mother and her two children . . . had voluntarily assumed responsibility for the care and welfare of both children, and . . . had considered himself the victim’s stepfather . . . .” Id., 218. On the basis of these facts, the court in Miranda I concluded that “there existed a common-law duty to protect the victim from her mother’s abuse, the breach of which can be the basis of a conviction under
In my view, it is not necessary to decide in the present case whether a parent or legal guardian can be held criminally liable under
Contrary to the concurring opinion of Justice Vertefeuille, I do not think that the question of whether there can be criminal liability for a failure to act necessarily can be decided solely by reference to the language and legislative history of the assault statutes.
*749Contrary to my earlier vote in this case, however, I do not now think that such potential parental liability should be extended, on a case-by-case basis, beyond the clearly established legal categories of a parent or legal guardian.
First, as I have already indicated, parents and guardians fall into clearly recognized legal categories, and their duty to protect their children and wards are clearly recognized in the law. The same cannot be said for someone like the defendant. It simply goes too far to say that he should be treated precisely the same as a parent or legal guardian for purposes of criminal liability, because he had established a “familial relationship” with the victim’s mother, had assumed responsibility for the victim’s care, and considered himself her stepfather. It will be difficult to cabin this precedent to these precise facts, and the temptation will always be there, in a case of egregious injuries—as this case is—to extend it to other members of the extended family, to longtime caregivers who are not related to either the parent or victim, to regular babysitters, and to others with regular and extended relationships with the abusing parent and the abused victim.
Second, and closely related to the first reason, the emerging demographic trend toward nontraditional alternative family arrangements, which we cited as support in Miranda I, now strikes me as a counter argument. Precisely because of that trend, and the concomitant difficulty of determining in advance where it will lead and what its ultimate contours will be, the boundaries of this duty-based criminal liability will be too amorphous, and too fact-based and based on hindsight, to fit comfortably within our Penal Code.
*750Third, this amorphousness in where the outer limits of liability lie will discourage others, such as volunteers and close friends, from establishing “familial relationships” with the children who are likely to be the most in need of them. Child abuse is often associated with such demographic factors as single parent status, low socioeconomic status, inadequate education, and low intelligence. J. Cordone, “Protecting Or Handicapping Connecticut’s Children: State v. Miranda,” 32 Conn. L. Rev. 329, 348 (1999). Thus, the children who are the most at risk for abuse are likely to suffer the greatest harm from this amorphous criminal liability, because it will discourage well-meaning relatives, friends of the family and other members of the community from taking an active and intense interest in them, for fear of being caught in a web of criminal liability for the egregious conduct of another.
Finally, I think that Miranda I places too much power in the hands of the state to use as a bargaining chip in plea negotiations. Precisely because its boundaries are so amorphous, it gives the state the power to threaten its use in a different but similar case, in order to extract a plea that the state might not otherwise be able to secure.
I conclude, therefore, that the defendant cannot, as a matter of law, be convicted of assault in the first degree, and that the judgments of conviction on counts five and ten of the information must reversed, and a judgment of acquittal be rendered on those counts.
The state does not claim that the resentencing proceedings constituted “matters relating to appeals” within the meaning of
As we have previously stated, General Statutes § l-2z “legislatively overruled that part of Courchesne in which we stated that we would not require a threshold showing of linguistic ambiguity as a precondition to consideration of sources of the meaning of legislative language in addition to its text.” Paul Dinto Electrical Contractors, Inc. v. Waterbury, 266 Conn. 706, 716 n. 10, 835 A.2d 33 (2003). Thus, the legislature did not purport to overrule our judicial definition of the task of statutory interpretation.
Thus, I disagree with the approach taken by Justice Vertefeuille in her concurring opinion. Instead of first determining whether there is any contrary interpretation of the two statutes that is reasonable and plausible, she has conflated two separate analyses: (1) whether the meaning of a particular statutory text, taken together with other statutes is plain and unambiguous; and (2) what the more likely or probable—or even the strongly suggested— meaning of that text is after a full textual analysis. The two are simply not the same. This conflationary flaw results in a transformation of the plain meaning rule from a threshold determination of ambiguity into the following result: once the court has examined the statutory texts and arrived at a conclusion as to the meaning on the basis of those texts, that meaning becomes ex post facto, plain and unambiguous, and resort to extratextual sources of meaning are then barred. That is contrary to the mandate of § l-2z.
That approach to the threshold issue of determining whether the statutory language is plain and unambiguous effectively treats that task as one aimed merely at discerning the more, or perhaps, most plausible meaning based on the analysis of the statutory text and the statute’s relation to other statutes. This recasting of the requirements of § l-2z effectively sets the bar to consideration of extratextual sources of statutory meaning higher than the legislature itself intended in the enactment of § l-2z and ignores our *740own precedent setting forth the meaning of “plain and unambiguous” statutory language.
The concurring opinion of Justice Vertefeuille, rather than explaining why this interpretation is not even plausible, simply asserts that
In addition, that concurring opinion concludes that “[§] 51-183g applies to situations where the judge trial referee was a judge at the time the trial started and became a judge trial referee at a subsequent time.
See Public Acts 1929, c. 301, § 10.
See Public Acts 1994, No. 94-63 and Public Acts 1998, No. 98-245.
This is not to say, however, that this is “the” meaning of the term “unfinished.” “A dictionary is nothing more than a compendium of the various meanings and senses in which words have been used in our language. A dictionary does not define the words listed in it in the sense of stating what those words mean universally. Rather it sets out the range of meanings that may apply to those words as they are used in the English language, depending on the varying contexts of those uses.” Northrop v. Allstate Ins. Co., 247 Conn. 242, 250, 720 A.2d 879 (1998).
Although I was one of four members of this court to have voted to affirm the defendant’s convictions in Miranda I, upon careful reconsideration I am now persuaded that my vote at that time was wrong and that it is better to correct the error now, while it still benefits the defendant in the present case, than to wait for the issue to present itself in a future case. “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Henslee v. Union Planters National Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct. 290, 93 L. Ed. 259, reh. denied, 336 U.S. 915, 69 S. Ct. 601, 93 L. Ed. 1078 (1949) (Justice Frankfurter, on changing position he had taken in earlier case).
I would leave the criminal liability of the defendant to the risk of injury statute, namely,
Concurrence Opinion
join, concurring. I concur with the two
conclusions set forth in the accompanying per curiam opinion, and set forth my reasoning, and those of the justices joining me, in this concurring opinion.
*751I
The first conclusion reached in the per curiam opinion is that Judge Fracasse, a judge trial referee, properly resentenced the defendant, Santos Miranda, pursuant to
In order to determine whether a judge trial referee is authorized to preside over a resentencing hearing following remand from the Appellate Court, we must construe the relevant statutory provisions, namely,
“The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and *752its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” General Statutes § l-2z.2 In the present case, I conclude that the meaning of
Before I turn to the text of the statutes at issue, I note that the constitution of Connecticut, article fifth, § 6, as amended by article eight, § 2, of the amendments, establishes a mandatory retirement age of seventy for all judges. Under that constitutional provision, upon attaining the age of seventy, a retired judge may become a state referee and “may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee.” Id. State referees may be designated as judge trial referees and, accordingly, may preside over civil and criminal cases.
Because the matter in the present case is criminal in nature and the defendant refused to consent to a judge trial referee, the crux of the issue presented is whether a resentencing hearing, on remand after appeal, constitutes an unfinished matter within the meaning of § 51-*753183g, thereby allowing a judge trial referee to preside without the consent of the parties, or whether
Analysis of the text of
The defendant advocates for a narrow reading of
“It is our duty to interpret statutes as they are written. . . . Courts cannot, by construction, read into statutes provisions which are not clearly stated. . . . The legislature is quite aware of how to use language when it *755wants to express its intent to qualify or limit the operation of a statute.” (Citations omitted; internal quotation marks omitted.) State v. Ingram, 43 Conn. App. 801, 825, 687 A.2d 1279 (1996), cert. denied, 240 Conn. 908, 689 A.2d 472 (1997). Additionally, “[a]s a general rule of statutory interpretation, we will not read a statute in such a way as to render a portion of it superfluous.” State v. Christiano, 228 Conn. 456, 472, 637 A.2d 382, cert. denied, 513 U.S. 821, 115 S. Ct. 83, 130 L. Ed. 2d 36 (1994).
The defendant’s interpretation is in derogation of both of these principles. There is no indication in the text of
The defendant next claims that a broad reading of
“It is fundamental . . . that this court reads statutes so as to avoid, rather than to create, constitutional questions. . . . More specifically, [i]n choosing between two statutory constructions, one valid and one constitutionally precarious, we will search for an effective and constitutional construction that reasonably accords with the legislature’s underlying intent.” (Citation omitted; internal quotation marks omitted.) Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 829, 730 A.2d 1149 (1999).
In the present case, inteipreting the “unfinished matters” clause of
The defendant further claims that reading
The defendant further claims that the textual distinctions between
Finally, the defendant claims that this court’s opinion in Griffing v. Danbury, 41 Conn. 96 (1874), requires us to construe
II
I also concur with the conclusion set forth in the accompanying per curiam opinion that State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998) (Miranda I), must be overruled. I do so because, in my view, a failure to act cannot constitute assault within the meaning of
In Miranda I, this court concluded that the defendant, who was not the biological or legal parent of the child victim, could be convicted of assault in the first degree in violation of
I begin with the text of
Section
According to common understanding as expressed in dictionary definitions, “assault” is a crime caused by affirmative action. Webster’s Third New International Dictionary defines assault as “a violent attack with physical means” and, alternatively, as an attempt or threat to do violence without actually inflicting the violence. Black’s Law Dictionary (8th Ed. 2004) further *760defines assault as “[t]he threat or use of force on another that causes that person to have a reasonable apprehension of imminent harmful or offensive conduct” or “[a]n attempt to commit battery requiring the specific intent to cause physical injury.” An accompanying commentary to that definition of assault provides: “In popular language [assault] has always connoted a physical attack. When we say that D assaults V, we have a mental picture of D attacking V, by striking or pushing or stabbing him.” (Emphasis added.) Id.
Likewise, the common understanding of “engages in conduct” connotes affirmative action. The term “engage” is defined as “[t]o employ or involve oneself; to take part in; to embark on.” Id. Webster’s Third New International Dictionary similarly defines engage as “to employ or involve oneself ... to take part: participate . . . .” Webster’s Third New International Dictionary defines conduct as “the act, manner, or process of carrying out (as a task) or carrying forward (as a business, government or war) . . . .”
Although the dictionary definitions are strongly suggestive of interpreting
Further support for requiring an affirmative act for the commission of an assault is found in the rejection of the American Law Institute’s Model Penal Code definition of “conduct” when our Penal Code was drafted. Our Penal Code was drawn from the Model Penal Code and the penal code of other states. Conn. Joint Standing Committee Hearings, supra, p. 11, remarks of Robert Testo, chairperson of the commission to revise the criminal statutes. Section 1.13 (5) of the Model Penal Code specifically defines “conduct” as “an action or omission . . . .” (Emphasis added.) Despite the drafters’ adoption of many other provisions of the Model Penal Code, *762our Penal Code, when enacted in 1969, did not include this important definition of “conduct.” I therefore conclude that there is “nothing in the text of § 53a-59 (a) (3), or its legislative history, to support [the] conclusion that conduct under § 53a-59 (a) (3) includes the failure to act.”Miranda I, supra, 245 Conn. 239 (Berdon, J., dissenting).
The rule of lenity provides further support for construing § 53a-59 (a) (3) to require an affirmative act to constitute an assault. “Special rules govern our review of penal statutes. We have long held that [c]riminal statutes are not to be read more broadly than their language plainly requires .... Thus, we begin with the proposition that [c] ourts must avoid imposing criminal liability where the legislature has not expressly so intended . . . and ambiguities are ordinarily to be resolved in favor of the defendant. ... In other words, penal statutes are to be construed strictly and not extended by implication to create liability which no language of the act purports to create.” (Internal quotation marks omitted.) State v. Lutters, 270 Conn. 198, 206, 853 A.2d 434 (2004); see also State v. Sostre, 261 Conn. 111, 120, 802 A.2d 754 (2002) (“A penal statute must be construed strictly against the state and liberally in favor of the accused. . . . Criminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” [Citation omitted; internal quotation marks omitted.]). Construing § 53a-59 (a) (3) strictly in accordance with the rule of lenity, the statute should not be extended by implication to encompass the defendant’s failure to act in the present case.
Having forsaken an analysis of the text of § 53a-59 (a) (3) and its legislative history, and having ignored the rule of lenity, the majority opinion in Miranda I was based on case law from Connecticut and other jurisdictions. As the defendant in the present case cor*763rectly claims, however, the cases relied upon by the majority in Miranda I are largely inapposite. In both Connecticut cases cited by the majority in Miranda I, the defendant directly caused serious injury or death to the victim. See State v. Tomassi, 137 Conn. 113, 75 A.2d 67 (1950) (defendant could be found guilty of either murder or manslaughter, as evidence may prove, for shooting victim with deadly weapon, despite negligent medical care after incident that may have contributed to death); State v. Jones, 34 Conn. App. 807, 644 A.2d 355 (defendant convicted of first degree assault for violently shaking baby and not seeking help when baby exhibited signs of severe injury), cert. denied, 231 Conn. 909, 648 A.2d 158 (1994). In Jones, the defendant’s failure to seek help for the victim served as evidence that the defendant exhibited a conscious disregard of a substantial risk of death, but that inaction was not the sole basis for the defendant’s conviction. State v. Jones, supra, 812-13. In Tomassi, the court did not consider criminal liability for inaction. Rather, the question before the court was whether the defendant could be held liable for the death of the victim, whom he intentionally had shot, when the direct cause of death was poor medical care. State v. Tomassi, supra, 119. Thus, any discussion of liability based on omission in either Tomassi or State v. Block, 87 Conn. 573, 576, 89 A. 167 (1913), the case cited in Tomassi for the proposition that an act or omission need only be a contributory cause of death, is relevant solely on the question of causation.
The cases from other jurisdictions on which the majority in Miranda I relied, and on which the dissent in the present case also relies in part, were dependent on statutes that are not analogous to § 53a-59. In State v. Peters, 116 Idaho 851, 854, 780 P.2d 602 (1989), the defendant was convicted under
The courts in both People v. Stanciel, 153 Ill. 2d 218, 222-23, 606 N.E.2d 1201 (1992) (mothers convicted of murder of their children based on their accountability because they knew about and continued to expose children to on-going abuse by their boyfriends), and State v. Walden, 306 N.C. 466, 476, 293 S.E.2d 780 (1982) (mother convicted of assault with deadly weapon inflicting serious bodily injury by aiding and abetting because she was present and failed to stop abuse of child by her male companion), affirmed murder and assault convictions, respectively, based on the failure to stop another person’s action. In both cases, however, the mothers of the victims were convicted based solely on accessorial liability. In the present case, however, the defendant was found directly hable for assault under § 53a-59 (a) (3), and not as an accessory. Thus, neither Stanciel nor Walden is relevant to the interpretation *765of § 53a-59 (a) (3) as applied to the defendant in the present case.6
“The question for this court, in cases such as this, is whether the legislature intended to make the conduct *766with which the defendant was charged criminal under . . . 53a-59 (a) (3) .... It is not whether this court, were it sitting as a legislature, would have proscribed the conduct at issue.” Miranda I, supra, 245 Conn. 236 (Berdon, J., dissenting). I conclude, based on the all-important text of § 53a-59 (a) (3), and it’s accompanying legislative history, and applying the rule of lenity, that the legislature did not intend that inaction, such as the failure to protect a child, should constitute assault under this statute.7
The dissenting opinion in the present case by Justice Katz points out that the legislature has had the opportunity to modify § 53a-59 since Miranda I was decided to exclude assault by omission if the majority had misinterpreted the statute. The dissent construes the legislature’s failure to amend § 53a-59 as an acceptance of this court’s inteipretation in Miranda I. It is true that “we presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that inteipretation.” Ralston Purina v. Board of Tax Review, 203 Conn. 425, 439, 525 A.2d 91 (1987). However, “[w]e have also overruled precedent interpreting a statute even when the legislature has had numerous occasions to reconsider that interpretation and has failed to do so.” Conway v. Wilton, 238 Conn. 653, 662, 680 A.2d 242 (1996). This is one of the rare cases in which it is necessary for this court to reconsider a previous statutory inteipretation despite the legislature’s inaction.
In his initial brief to this court, the defendant addressed both the “unfinished matters” and “appeal cases” clauses of § 51-183g. The state in its brief, however, addressed only the “unfinished matters” clause. In his reply brief, the defendant noted that the state addressed only the “unfinished matters” clause, and therefore recognized that the salient question on appeal is whether a resentencing hearing constitutes an unfinished matter, not an appeal case. Moreover, at oral argument before this court, the defendant specifically limited his argument to the “unfinished matters” language. Further, at oral argument, when questioned about which clause it was addressing, the state indicated that it considered the “unfinished matters” language to refer to a broad category that encompasses the “appeal cases” clause. Accordingly, we limit our analysis to the “unfinished matters” language.
Section l-2z was enacted in order to overrule our rejection of the plain meaning rule in State v. Courchesne, 262 Conn. 537,577,816 A.2d 562 (2003).
See footnote 2 of the accompanying per curiam opinion.
I acknowledge that in the majority opinion in Miranda II, supra, 260 Conn. 106, which I authored, we stated that we had examined the plain language of § 53a-59 (a) (3) in Miranda I. Simply put, I was wrong in making that statement.
Although our conclusion in State v. Courchesne, supra, 262 Conn. 569-70, rejecting the “plain meaning” rule of statutory interpretation was legislatively overruled by § l-2z, our emphasis on the importance of the text of a statute is consistent with § l-2z.
In her dissent, Justice Katz, the author of the majority opinion in Miranda I, relies on several cases from other jurisdictions that were not cited previously in her opinion in Miranda I. While these cases might appear similar to the present case at first blush, subtle differences in the pertinent statutory language or the common law of the other state make them inapposite to our analysis of § 53a-59 (a) (3) in the present case. In Michael v. State, 767 P.2d 193 (Alaska App. 1988), rev’d on other grounds, 805 P.2d 371 (Alaska 1991), the defendant father was convicted of assault in the second degree for failing to protect his child from abuse by the child’s mother. The statutory provision under which the defendant in Michael was convicted provides in relevant part: “A person commits the crime of assault in the second degree if . . . (2) that person recklessly causes serious physical injury to another person.”
The failure to protect a child from physical assault does constitute a crime under the risk of injury statute, § 53-21. The defendant has never challenged his conviction under that statute.
Dissenting Opinion
dissenting. In State v. Miranda, 245 Conn. 209, 715 A.2d 680 (1998) (Miranda T), the certified ques*767tion before this court was whether the facts and circumstances of this case were sufficient to create a legal duty to protect the victim from parental abuse pursuant to
Today, a majority of the court concludes in a per curiam opinion that, despite the legislature’s failure to act in response to two en banc decisions by this court, our interpretation of § 53a-59a was incorrect. A plurality of the court, as expressed in a concurring opinion, concludes that, even someone who has an undisputed affirmative legal obligation to protect and provide for a minor child, like a parent, cannot, as a matter of law, commit a violation of
I
I begin with the doctrine of stare decisis, the principle that cautions courts to tread lightly into the world of overruling precedent. “The doctrine [of stare decisis] requires a clear showing that an established rule is incorrect and harmful before it is abandoned”; (internal quotation marks omitted) White v. Burns, 213 Conn. 307, 335, 567 A.2d 1195 (1990); and “counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. ... It is the most important application of a theory of decisionmaking consistency in our legal culture and it is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.” (Citations omitted; internal quotation marks omitted.) George v. Ericson, 250 Conn. 312, 318, 736 A.2d 889 (1999).
I recognize that “[s]tare decisis is not an inexorable command. The court must weigh [the] benefits [of stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust. ... If law is to have a current relevance, courts must have and exert the capacity to change a rule of law when reason so requires.” (Citation omitted; internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 660, 680 *769A.2d 242 (1996). In assessing the force of stare decisis, we must, however, be “especially cautious about overturning a case that concerns statutory construction.” (Internal quotation marks omitted.) Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202, 708 A.2d 1371 (1998).
Today, despite the legislature’s failure over the last seven years to respond to this court’s interpretation of § 53-59a, a majority of the court determines that our earlier decision was incorrect. “Time and again, [however] we have characterized the failure of the legislature to take corrective action as manifesting the legislature’s acquiescence in our construction of a statute. . . . Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision.” (Internal quotation marks omitted.) Hall v. Gilbert & Bennett Mfg. Co., 241 Conn. 282, 297, 695 A.2d 1051 (1997); see, e.g., Rivera v. Commissioner of Correction, 254 Conn. 214, 251-52, 756 A.2d 1264 (2000) (citing principle of stare decisis and relying on legislature’s failure to act over six year period as basis for refusing to overrule Howard v. Commissioner of Correction, 230 Conn. 17, 644 A.2d 874 [1994], in which this court construed calculation of good time credits earned on multiple sentences). Thus, “[w]hile we are aware that legislative inaction is not necessarily legislative affirmation ... we also presume that the legislature is aware of [this court’s] interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation.” (Internal quotation marks omitted.) State v. Hodge, 248 Conn. 207, 262-63, 726 A.2d 531, cert. denied, 528 U.S. 696, 120 S. Ct. 409, 145 L. Ed. 2d 319 (1999).
*770I consider the legislature’s failure to act in the face of our interpretation of
Accordingly, it is clear that the legislature had the authority to make it evident that it never intended to punish someone under
II
I next question the wisdom of revisiting the issue in this case. I recognize the fairness exercised when a court, which decides that an earlier interpretation of a statute was incorrect, affords the benefit of that determination to the defendant who was harmed by the earlier ruling. There is, however, an issue of finality of judgments, a consideration that questions whether it is judicious for the court to revisit issues previously decided against a litigant. “[T]he doctrine of res judicata, or claim preclusion, [provides that] a former judgment on a claim, if rendered on the merits, is an absolute bar to a subsequent action [between the same parties or those in privity with them] on the same claim.” (Internal quotation marks omitted.) Fink v. Golenbock, 238 Conn. 183, 191, 680 A.2d 1243 (1996). “The [doctrine] . . . [is] based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate. . . . [Wjhere a party has fully and fairly litigated his claims, he may be barred from future actions on matters not raised in the prior proceeding.”2 (Internal quotation marks omitted.) Id., 192-93.
*773The doctrine of res judicata applies to criminal as well as civil proceedings and to state habeas corpus proceedings. McCarthy v. Warden, 213 Conn. 289, 294-98, 567 A.2d 1187 (1989), cert. denied, 496 U.S. 939, 110 S. Ct. 3220, 110 L. Ed. 2d 667 (1990). In the context of habeas proceedings, however, we have recognized that, “[although the doctrine of res judicata in its fullest sense bars claims that could have been raised in a prior proceeding, such an application in the habeas corpus context would be unduly harsh. . . . Unique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner. . . . Foremost among those considerations is the interest in making certain that no one is deprived of liberty in violation of his or her constitutional rights. . . . With that in mind, we limit the application of the doctrine of res judicata in circumstances such as these to claims that actually have been raised and litigated in an earlier proceeding.” (Citations omitted; internal quotation marks omitted.) Thorpe v. Commissioner of Correction, 73 Conn. App. 773, 778-79 n.7, 809 A.2d 1126 (2002); see, e.g, Asherman v. State, 202 Conn. 429, 443, 521 A.2d 578 (1987) (concluding that defendant’s claim of juror misconduct was barred by res judicata because claim was identical to claim previously raised and decided).
There is no doubt that the issue in this appeal is the same issue that was raised by the defendant and decided against him by this court in the defendant’s first challenge to his conviction, Miranda I. The only question then is whether the circumstances warrant a deviation from our well settled doctrine. I am not persuaded. As I explain more fully in part III of this opinion, the catalyst for our reconsideration of the defendant’s assault convictions is the severity of the sentence imposed. *774The majority does not proclaim the defendant innocent of all wrongdoing. In other words, this is not a case in which the court concludes that what was once deemed to have been criminal behavior is now innocent. On the contrary, the court, as well as the defendant, acknowledges that his conviction for risk of injury was proper.3 The issue is whether the defendant properly was charged. Had his sentence of incarceration been for concurrent time, there would have been no point from a practical standpoint nor, I venture to guess, interest from a legal stance in revisiting this issue. Thus, the doctrine of res judicata presents a paramount consideration that should not be driven by sentencing considerations.
Ill
Turning to the merits of the inquiry, I continue to believe that the defendant in this case properly was convicted of assault in the first degree in violation of
“The defendant commenced living with his girlfriend and her two children in an apartment [in Meriden] in *775September, 1992. On January 27, 1993, the defendant was twenty-one years old, his girlfriend was sixteen, her son was two, and her daughter, the victim in this case, bom on September 21, 1992, was four months old. Although he was not the biological father of either child, the defendant took care of them and considered himself to be their stepfather. He represented himself as such to the people at Meriden Veteran’s Memorial Hospital where, on January 27, 1993, the victim was taken for treatment of her injuries following a 911 call by the defendant that the child was choking on milk. Upon examination at the hospital, it was determined that the victim had multiple rib fractures that were approximately two to three weeks old, two skull fractures that were approximately seven to ten days old, a brachial plexus injury to her left arm, a rectal tear that was actively ‘oozing blood’ and bilateral subconjunctival nasal hemorrhages. On the basis of extensive medical evidence, the trial court determined that the injuries had been sustained on three or more occasions and that none of the injuries had been the result of an accident, a fall, events that took place at the time of the child’s birth, cardiopulmonary resuscitation, a blocked air passageway or the child choking on milk. Rather, the trial court found that the injuries, many of which created a risk of death, had been caused by great and deliberate force.
“The trial court further found in accordance with the medical evidence that, as a result of the nature of these injuries, at the time they were sustained the victim would have screamed inconsolably, and that her injuries would have caused noticeable physical deformities, such as swelling, bruising and poor mobility, and finally, that her intake of food would have been reduced. The court also determined that anyone who saw the child would have had to notice these injuries, the consequent deformities and her reactions. Indeed, the trial court *776found that the defendant had been aware of the various bruises on her right cheek and the subconjunctival nasal hemorrhages, as well as the swelling of the child’s head, that he knew she had suffered a rectal tear, as well as rib fractures posteriorly on the left and right sides, and that he was aware that there existed a substantial and unjustifiable risk that the child was exposed to conduct that created a risk of death. The trial court concluded that despite this knowledge, the defendant ‘failed to act to help or aid [the child] by promptly notifying authorities of her injuries, taking her for medical care, removing her from her circumstances and guarding her from future abuses. As a result of his failure to help her, the child was exposed to conduct which created a risk of death to her and the child suffered subsequent serious physical injuries . . . .’’Id.
On the basis of the foregoing facts, as reasonably found by the trial court, in Miranda I, this court engaged in our traditional process to determine whether the defendant’s conduct constituted a violation of
“[In Miranda T\ we employed the ordinary tools of statutory construction.4 We examined the plain language of
“First, the court examined the plain language of § 53a-59 (a) (3) and the text of our statutes. We determined that the plain language of § 53a-59 (a) (3) [does not] preclude criminal liability from attaching to an omission to act when a legal duty to act exists and injury results.5 *778Id., 220-21. In addition, many statutes that expressly impose a legal duty to act and attach liability for failure to comply with that duty and other statutes impose liability for failure to comply with a duty found either in a separate statute or in the common law. Id., 219. We also concluded that our Penal Code did not foreclose the possibility of a duty and criminal liability for the breach of that duty existing under the facts of this case.6 Id., 219-20. We concluded that the text of § 53a-*77959 (a) (3) and other statutes did not prevent us from recognizing that, under the facts of this case, the defendant had a common-law duty to act and his failure to do so exposed him to criminal liability under § 53a-59 (a) (3). Id., 220-21.
“Second, we examined the common law in Connecticut and other jurisdictions. Common law courts frequently look to the decisions of other jurisdictions in determining whether to alter or modify a common law rule in light of changed circumstances, increased knowledge, and general logic and experience. Rogers v. Tennessee, [532 U.S. 451, 464, 121 S. Ct. 1693, 149 L. Ed. 2d 697 (2001)]. In addition, although due process does not require that a person know the common law of every jurisdiction, an examination of the common law of other jurisdictions is surely relevant to whether [a change in common law] ... in a particular case can be said to be unexpected and indefensible by reference to the law as it then existed. Id. We concluded that [i]t is undisputed that parents have a duty to provide food, shelter and medical aid for their children and to protect them from harm under the common law of Connecticut and other jurisdictions.7 [Miranda /], *780supra, 245 Conn. 222. In looking at the common law of other jurisdictions, we also found that some jurisdictions have imposed a duty to protect a child from harm on adult individuals, other than parents, who establish familial relationships and assume responsibility for the care of a child.8 Id., 223.
*781“We analyzed four cases from other jurisdictions9 with facts similar to the present case. In examining those cases, we deduced that these courts [in other jurisdictions] have examined the nature of the relationship of the defendant to the victim and whether the defendant, as part of that relationship, had assumed a responsibility for the victim to determine whether the defendant had a duty to act under the particular circumstances of each case. Id. We found the reliance by these courts on this combination of factors persuasive. Id. Using this same combination of factors, we determined in the present case that when the defendant, who considered himself the victim’s parent, established a familial relationship with the victim’s mother and her children and assumed the role of a father, he assumed, under the common law, the same legal duty to protect the victim from the abuse as if he were, in fact, the victim’s guardian. Id., 226. An examination of the common law of other states indicated that it was not unexpected and indefensible to impose a common-law duty on the defendant to protect the victim under the facts of this case. See Rogers v. Tennessee, supra, 532 U.S. 464.
“Third, we examined other Connecticut statutes governing conduct similar to that at issue in the present case. We looked to other relevant statutes governing the same or similar subject matter because the legislature is presumed to have created a consistent body of law. [Miranda T], supra, 245 Conn. 229, citing Daly v. Del*782Ponte, 225 Conn. 499, 510, 624 A.2d 876 (1993). We concluded, therefore, that because § 53-21 [the risk of injury statute], without any explicit restriction, holds responsible any person who permits abuse of a child to occur, to prescribe a duty in connection with § 53a-59 (a) (3) to prevent such abuse furthers a harmonious and consistent body of law . . . .10 [Miranda T], supra, 245 Conn. 230.
*783“We also reviewed treatises, which demonstrated that the trend of Anglo-American law has been toward enlarging the scope of criminal liability for failure to act in those situations in which the common law or statutes have imposed an affirmative responsibility for the safety and well-being of others. 11 Id., 215, citing 1 W. LaFave & A. Scott, Substantive Criminal Law (1986) § 3.3; annot., 61 A.L.R.3d 1207 (1975); annot., 100 A.L.R.2d 483 (1965). As Professors Wayne LaFave and Austin Scott stated in their treatise, if two people, though not closely related, live together under one roof, one may have a duty to act to aid the other who becomes helpless. 1 W. LaFave & A. Scott, supra, § 3.3 (a), p. 286.”12 (Internal quotation marks omitted.) Miranda II, supra, 260 Conn. 106-109.
“We conclude[d] [therefore] that our recognition of a common-law duty that required the defendant either to take affirmative action to prevent harm to the victim or be exposed to criminal liability under § 53a-59 (a) (3) was not unexpected and indefensible by reference *784to the law which had been expressed prior to the conduct in issue. Rogers v. Tennessee, supra, 532 U.S. 461, quoting Bouie v. Columbia, [378 U.S. 347, 354, 84 S. Ct. 1697, 12 L. Ed. 2d 894 (1964)]. To reach the conclusion that we did, we relied on ordinary tools of statutory construction. Those tools of statutory construction demonstrated that by reference to the law as it then existed, it was neither unexpected nor indefensible to impose a common-law duty on the defendant to protect the victim under the facts of this case and to impose criminal liability for his failure to so act. [Accordingly, we concluded] . . . that this court’s recognition of a common-law duty and the application of § 53a-59 (a) (3) were reasonably foreseeable and did not deprive the defendant of due process in accordance with the standard articulated in Bouie.” (Internal quotation marks omitted.) Miranda II, supra, 260 Conn. 109-10.
Today, despite the fact that in Miranda II, the court essentially reinforced the reasoning that informed the first case involving this defendant, the majority of the court changes its opinion—a plurality determines that even a parent cannot be held hable for reckless assault under § 53a-59 (a) (3) for failing to prevent abuse of his or her own child, as discussed in Justice Vertefeuille’s concurrence, and another plurality determines that, even if the assault statute contemplates omission by someone with a duty to act, the defendant does not fall within that category under the facts of this case, as discussed in Justice Borden’s concurrence. I continue to abide by our earlier recognition that an omission to act may create criminal culpability under our Penal Code even though the law defining the offense, as here, provides that the defendant must have “engage[d] in conduct which create [d] a risk of death to another person, and thereby cause[d] serious physical *785injury . . . .”13
Finally, I want to reiterate that imposing criminal liability for omissions is not tantamount to creating a common-law crime. Although we no longer have common-law crimes, we have preserved “the common law rules of criminal law not in conflict with [our Penal Code]. . . . The rule applicable to omissions does not define a substantive crime. Failure to act when there is a special relationship does not, by itself, constitute a crime. The failure must expose the dependent person to some proscribed result. The definition of proscribed results constitutes the substantive crime, and it is defined in the criminal code.” (Internal quotation marks omitted.) State v. Williquette, 129 Wis. 2d 239, 253-54, 385 N.W.2d 145 (1986). The rule regarding omissions, therefore, is not inconsistent with
Therefore, at the risk of repeating myself, I would not adopt a broad general rule covering other circum*789stances, but, rather, I would conclude only that, “in accordance with the trial court findings, when the defendant, who considered himself the victim’s parent, established a familial relationship with the victim’s mother and her children and assumed the role of a father, he assumed, under the common law, the same legal duty to protect the victim from the abuse as if he were, in fact, the victim’s guardian. Under these circumstances, to require the defendant as a matter of law to take affirmative action to prevent harm to the victim or be criminally responsible imposes a reasonable duty. That duty does not depend on an ability to regulate the mother’s discipline of the victim or on the defendant having exclusive control of the victim when the injuries occurred. Nor is the duty contingent upon an ability by the state or the mother to look to the defendant for child support. [See W. v. W., 248 Conn. 487, 504-505, 728 A.2d 1076 (1999) (concluding that man who was not biological father, but who consistently had treated child as his daughter, was estopped from denying paternity for purposes of child support)]. Moreover, whether the defendant had created a total in loco parentis relationship with the victim by January, 1993, is not dispositive of whether the defendant had assumed a responsibility for the victim. Leet v. State, [595 So. 2d 959, 962 (Fla. App. 1991)]. If immediate or emergency medical attention is required from a child’s custodian it should not matter that such custodian is not the primary care provider or for that matter a legally designated surrogate.” (Internal quotation marks omitted.) Miranda I, supra, 245 Conn. 226-27.
Finally, I disagree with my colleagues that the continuing demographic trend, which we first noted in Miranda I, supra, 245 Conn. 228, that reflects a significant increase in nontraditional alternative family arrangements; United States Bureau of the Census, Marital Status and Living Arrangements: March 1984, Cur*790rent Population Reports, Series p-20, No. 399 (1985); counsels against the imposition of liability in this case. I do not agree that persons inclined to enter relationships that involve children will consciously decide against such involvement for fear of being held responsible if and when a child is abused or neglected. Because more and more children will be living with or may depend upon adults who do not qualify as a natural or adoptive parent, the fact that we are, at best, affording protection only to those children whose adult caregivers have chosen to have their relationships officially recognized hardly advances the public policy of protecting children from abuse.
Accordingly, I respectfully dissent.
Indeed, the plethora of cases in which we have noted that the legislature has enacted legislation in response to one of our decisions lends strong support to the proposition that the legislature will not hesitate to take action when it views our decisions as misconstruing its intent. See, e.g., Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 727-28, 780 A.2d 1 (2001) (determining that legislature had enacted Public Act 00-206, § 1 (g), in reaction to our decision in Christian Activities Council, Congregational v. Town Council, 249 Conn. 566, 589, 735 A.2d 231 [1999]); Greenwich Hospital v. Gavin, 265 Conn. 511, 514 n.3, 829 A.2d 810 (2003) (stating that “[General Statutes §] 12-263b, the gross earnings statute, was enacted by the General Assembly as an emergency certified bill in response to the decision in New England Health Care Employees Union District 1199, SEIU AFL-CIO v. Mount Sinai Hospital, 846 F. Sup. 190, 195-200 [D.Conn. 1994], rev’d, 65 F.3d 1024 [2d Cir. 1995]”); In re Michael S., 258 Conn. 621, 629, 784 A.2d 317 (2001) (concluding that No. 86-185, § 2, of 1986 Public Acts was enacted to overrule our decision in In re Juvenile Appeal [85-AB], 195 Conn. 303, 488 A.2d 778 [1985]); King v. Sultar, 253 Conn. 429, 442, 754 A.2d 782 (2000) (“legislative history of . . . the bill eventually enacted as Public Acts 1971, No. 524, § 1, and codified at [General Statutes] § 7-433c, clearly and unequivocally demonstrates that the legislature enacted § 7-433c in direct response to our decision in Ducharme [v. Putnam, 161 Conn. 135, 285 A.2d 318 (1971)]); Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 720 n.17, 714 A.2d 1209 (1998) (stating that
The presumption of finality of judgments is also underscored by the law of the case doctrine, which “expresses the practice of judges generally to refuse to reopen what has been decided ...” (Internal quotation marks omitted.) Suffield Bank v. Berman, 228 Conn. 766, 774-75, 639 A.2d 1033 (1994). We have applied the law of the case doctrine in criminal cases to preclude defendants from relitigating claims decided in earlier appeals of the same case. See, e.g., State v. Ross, 269 Conn. 213, 263, 849 A.2d 648 (2004) (“The defendant now claims that the trial court’s denial of his motion to sever the cases prior to the second penalty phase was improper . . . [on three grounds]. These are precisely the same issues, however, as the issues raised by the defendant before the first guilt phase and reviewed by this court in [the defendant’s previous appeal from the imposition of the death penalty, State v. Ross, 230 Conn. 183, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995)]. Accordingly, *773we conclude that this claim is governed by the law of the case and that the trial court, properly denied the motion to sever.”).
Indeed, I am puzzled by the characterization of the language in
I find it curious that, despite this express recognition in the majority opinion in Miranda II, supra, 260 Conn. 106, which Justice Vertefeuille authored, that we previously had applied our traditional tools of statutory construction, the concurring opinion by Justice Vertefeuille in this appeal nevertheless states that the Miranda I majority failed to engage in any analysis of
I would suggest that any claim that “inaction” cannot constitute “conduct” within
It also is significant that, as we noted in our maiden voyage into this case, “[i]n recognition of the broad term ‘engage in conduct,’ as chosen by the legislature in
Finally, I note that the legislative history referenced by Justice Vertefeuille‘s concurring opinion sheds no light on this issue. As Justice Vertefeuille notes, Robert Testo, then chairperson of the commission to revise the criminal statutes (commission), stated in testimony before the judiciary committee that the commission had looked at the American Law Institute’s Model Penal Code, as well as New York’s Penal Code, when drafting the 1969 Penal Code. Conn. Joint Standing Committee Hearings, Judiciary, 1969 Sess., p. 11. The remarks to which she refers, however, were addressed to the Penal Code generally and not to any particular statute or term. Thus, in the absence of any specific discussion on the commission’s adoption or rejection of any model code provision in connection with its discussion of § 53a-59 or any other specific provision that bears on the issue before us, I draw no significance from the drafters’ failure to adopt a particular definition of the term “conduct.”
Specifically, in Miranda I, supra, 245 Conn. 219-20, we turned to, inter alia,
I am mindful that the commentary to
As we explained in Miranda I, “[i]t is undisputed that parents have a duty to provide food, shelter and medical aid for their children and to protect them from harm. See In re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 15, 438 A.2d 801 (1981). The inherent dependency of a child upon his parent to obtain medical aid, i.e., the incapacity of a child to evaluate his condition and summon aid by himself, supports imposition of such a duty upon the parent. Commonwealth v. Konz, 498 Pa. 639, 644, 450 A.2d 638 (1982). Additionally, [t]he commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance. In re Adoption of Webb, 14 Wash. App. 651, 653, 544 P.2d 130 (1975). Indeed, the status relationship giving rise to a duty to provide and protect that has been before the *780courts more often than any other relationship and, at the same time, the one relationship that courts most frequently assume to exist without expressly so stating, is the relationship existing between a parent and a minor child.” (Internal quotation marks omitted.) Miranda J, supra, 245 Conn. 222. Consequently, criminal liability of parents based on a failure to act in accordance with common-law affirmative duties to protect and care for their children is well recognized in many jurisdictions. See footnote 8 of this opinion.
Although we did not state the point expressly in Miranda I, it is clear that imposing such a duty on adults other than parents necessarily would impose a similar duty on parents to protect a child from harm. I note that, although there does not appear to be extensive law directly on point, the case law that is available appears to be unanimous in establishing a duty of a parent to act to protect his or her child, the breach of which will give rise to liability for, inter alia, abuse, manslaughter and assault. See, e.g., Michael v. State, 767 P.2d 193 (Alaska App. 1988) (father held criminally responsible for reckless assault for failure to protect child from mother’s abuse), rev’d on other grounds, 805 P.2d 371 (Alaska 1991); People v. Burden, 72 Cal. App. 3d 603, 140 Cal. Rptr. 282 (1977) (father convicted of second degree murder for failure to feed his child after child died of malnutrition and dehydration); People v. Stanciel, 153 Ill. 2d 218, 606 N.E.2d 1201 (1992) (mothers guilty of homicide by allowing their abusive companions to retain role of disciplinarian over their children); Smith v. State, 408 N.E.2d 614 (Ind. App. 1980) (mother held criminally responsible for failing to prevent fatal beating of child by her lover), overruled on other grounds, Armour v. State, 479 N.E.2d 1294 (Ind. 1985); Palmer v. State, 223 Md. 341, 164 A.2d 467 (1960) (affirming mother’s conviction of involuntary manslaughter based on her failure to protect her infant daughter from repeated abuse by her boyfriend); State v. Walden, 306 N.C. 466, 476, 293 S.E.2d 780 (1982) (“the failure of a parent who is present to take all steps reasonably possible to protect the parent’s child from an attack by another person constitutes an act of omission by the parent showing the parent’s consent and contribution to the crime being committed”); State v. Zobel, 81 S.D. 260, 134 N.W.2d 101 (parents convicted of murder for neglect of children that resulted in death), cert. denied, 382 U.S. 833, 86 S. Ct. 74, 15 L. Ed. 2d 76 (1965), overruled on other grounds, State v. Waff, 373 N.W.2d 18 (S.D. 1985); State v. Williquette, 129 Wis. 2d 239, 385 N.W.2d 145 (1986) (concluding that mother’s failure to prevent father’s abuse of their children by leaving them in his care when she knew he regularly abused them physically and sexually constituted child abuse under language of statute); see also State v. Peters, 116 Idaho 851, *781855 , 780 P.2d 602 (App. 1989) (noting that parent has duty to protect and care for child and when injury results from failure to protect child from harm, failure to act will be “deemed to be the cause of those injuries”).
“Leet v. State, 595 So. 2d 959 (Fla. App. 1991); State v. Orosco, 113 N.M. 789, 833 P.2d 1155 (1991) [aff‘d, 113 N.M. 780, 833 P.2d 1146 (1992)]; People v. Wong, 182 App. Div. 2d 98, 588 N.Y.S.2d 119, rev’d on other grounds, 81 N.Y.2d 600, 619 N.E.2d 600, 601 N.Y.S.2d 440 (1993); People v. Salley, 153 App. Div. 2d 704, 544 N.Y.S.2d 680 (1989) [appeal denied, 75 N.Y.2d 817, 551 N.E.2d 1245, 552 N.Y.S.2d 567 (1990)].” Miranda II, supra, 260 Conn. 108 n.9.
I would note that our initial determination in Miranda I is consistent with the aim, purpose and policy behind numerous other statutes addressing family violence and child abuse. See, e.g.,
“(1) ‘Family violence’ means an incident resulting in physical harm, bodily injury or assault, or an act of threatened violence that constitutes fear of imminent physical harm, bodily injury or assault between family or household members. Verbal abuse or argument shall not constitute family violence unless there is present danger and the likelihood that physical violence will occur.
“(2) ‘Family or household member’ means (A) spouses, former spouses; (B) parents and their children; (C) persons eighteen years of age or older related by blood or marriage; (D) persons sixteen years of age or older other than those persons in subparagraph (C) presently residing together or who have resided together; (E) persons who have a child in common regardless of whether they are or have been married or have lived together at any time; and (f) persons in, or have recently been in, a dating relationship.
“(3) ‘Family violence crime’ means a crime as defined in section 53a-24 which, in addition to its other elements, contains as an element thereof an act of family violence to a family member and shall not include acts by parents or guardians disciplining minor children unless such acts constitute abuse. ...”
Specifically, in Miranda I, supra, 245 Conn. 221, we noted “four widely recognized situations in which the failure to act may constitute breach of a legal duty: (1) where one stands in a certain relationship to another; (2) where a statute imposes a duty to help another; (3) where one has assumed a contractual duty; and (4) where one voluntarily has assumed the care of another. 1W. LaFave &A. Scott, supra, § 3.3 (a) (1) [through] (4), pp. 284^-87.”
As we stated in Miranda I, supra, 245 Conn. 223, “[rjecognizing the primary responsibility of a natural parent does not mean that an unrelated person may not also have some responsibilities incident to the care and custody of a child. Such duties may be regarded as derived from the primary custodian, i.e., the natural parent, or arise from the nature of the circumstances. People v. Berg, 171 Ill. App. 3d 316, 320, 525 N.E.2d 573 (1988) [(concluding that, although defendant had duty as any person under child endangerment statute based upon evidence that he lived with victim and her mother, would play with victim, feed and clothe her, discipline her and take her places, under circumstances of case there was insufficient evidence that defendant had endangered victim’s health by not obtaining medical treatment)] . . . .” (Citation omitted; internal quotation marks omitted.)
Although some of the cases referenced in this dissent involve offenses that do not incorporate the exact terminology of § 53a-59 (a), others come very close. For example, in Michael v. State, 767 P.2d 193, 197, (Alaska App. 1988), rov’d on other grounds 805 P.2d 371 (Alaska 1991), the Alaska Court of Appeals considered the defendant’s conviction of assault in the second degree, which was statutorily defined as “recklessly causf ing] serious physical injury to another person. [
Similarly, in Degren v. State, supra, 352 Md. 404, the Maryland Court of Appeals considered whether a person with responsibility for a minor child who fails to prevent that child from being raped while the child is in her presence could be convicted of sexual abuse. The court examined article 27, § 35C (b) (1) of the Maryland Code, which provides that “[a] parent or other person who has permanent or temporary care or custody or responsibility for the supervision of a child . . . who causes abuse to the child is guilty of a felony . . . .” Abuse under the Maryland Code includes both “ [t]he sustaining of physical injury by a child as a result of cruel or inhumane treatment or as a result of a malicious act . . . under circumstances that indicate that the child’s health or welfare is harmed or threatened thereby.” Md. Code, art. 27, § 35C (a) (2) (i) (1957). Sexual abuse is defined as “any act that involves sexual molestation or exploitation of a child.” Md. Code, art. 27, § 35C (a) (6) (i) (1957). In affirming the trial court’s judgment, the Court of Appeals rejected the petitioner’s argument that, because the plain meaning of the word “act” as used in § 35C (a) (6) (i) denotes an affirmative act as opposed to an omission, she could not be held criminally liable for the sexual abuse of the child because her omission or failure to prevent another person’s act of sexual molestation or exploitation is not punishable under the statute. Degren v. State, supra, 420-21.
*786Even in the eases involving statutes that resemble our aiding and abetting statute,
Finally, even with regard to the cases Justice Vertefeuille attempts to distinguish by stating that the statutes involved therein “directly criminalized inaction as well as action,” a characterization with which I strongly disagree, those courts did not rely solely on a narrow interpretation of one word. For example, in State v. Williquette, 129 Wis. 2d 239, 250-54, 385 N.W.2d 145 (1986), the Wisconsin Supreme Court concluded that the ordinary and accepted meaning of the term “subjects” under the child abuse statute;
For example, in State v. Mahurin, 799 S.W.2d 840, 844 (Mo.), cert. denied, 502 U.S. 825, 112 S. Ct. 90, 116 L. Ed. 2d 62 (1990), the defendant parents, despite instructions by health care professionals on proper infant care upon discharge from the hospital after the birth of their twin boys, failed to properly feed the boys, resulting in the death of one of the children. The receipt of those instructions led the Missouri Supreme Court to find that the parents consciously had disregarded a risk to their child when they failed to properly feed him, and they were found to have acted recklessly. Id.