State v. Salamon

therefore, long so dissipation, sidering preseparation within dissipation occur constituting as the transactions temporal framework. foregoing financial characterized previously have “We resembling a proceedings in dissolution orders components various financial mosaic, in which all the . . . carefully with one another. are interwoven trial court’s finan- whether the Because it is uncertain reconsidering intact will remain after cial awards with of marital assets consistent dissipation issue mosaic must be today, entirety of the opinion v. Gersh- omitted.) Gershman (Citations refashioned.” a new trial supra, Accordingly, Conn. 351-52. man, 352. required. id., See is reversed and Appellate Court judgment The to that court direction the case is remanded of the trial court and to remand judgment reverse the a new the case to that court for trial. justices opinion concurred.

In this the other SALAMON STATE OF CONNECTICUT SCOTT (SC 17610) * Borden, Katz, Palmer, Vertefeuille, Sullivan, Norcott, Zarella and Js. respec- parties acquisition ... their of each of the in the contribution (c). tive estates." General Statutes 46b-81 * justices seniority listing of their status as of the date of reflects argument. oral officially released1, July Argued April S. Nagy, special public Pamela defender, for the appellant (defendant).

Marjorie Dauster, Allen senior assistant state’s attor- ney, whom, brief, were I. Cohen, David state’s attorney, Timothy Sugrue, J. senior assistant attorney, state’s Colombo, Michael former deputy assistant attorney, appellee state’s for the (state).

Opinion PALMER, J. defendant, A found the Scott Sala mon, guilty one count kidnap each the crimes of ping in the second in degree violation of General Statutes unlawful restraint in degree § the first 53a-94/ 1 provides part: person “(a) guilty § General Statutes in 53a-94 relevant A is kidnapping degree person. of in the second when he . abducts another . “ person prevent ‘Abduct’means to restrain a with intent to his liberation (A) secreting holding place likely either in or him a is where he to found, (B) using physical threatening be or or to use force or intimidation.” (2). § General Statutes 53a-91 “ n ‘Restrain’means to restrict a person’s intentionally movements and unlawfully substantially liberty by in such a manner as to interfere with his moving another, place by confining him from one to or him either in the place place where the restriction or in commences to which he been has moved, herein, means, without consent. As used ‘without but consent’ is to, (A) any deception acquies- (B) whatever, not limited including means victim, years incompe- cence of the if is a child than he less sixteen or an old person parent, guardian person tent having and the or other or institution custody acquiesced lawful control or of him has not in the movement or confinement.” § General Statutes 53a-91

513 53a-95,2 and risk of Statutes § of General in violation (Rev. of Statutes in violation General injury to a child rendered judg trial court 53-21 The 2001) (a) (1).3 § to verdict,4 and the defen with the in accordance ment raises several appeal, On the defendant appealed.5 dant in kidnapping to his conviction respect claims. With revisit and us to degree, urges the defendant the second kidnapping state’s interpretation our overrule by this court in recently most articulated statutes, Luurtsema, 223 under 179, 811 (2002), A.2d 262 person with person who restrains another which may liberation be con prevent person’s to the restraint involved kidnapping even though victed merely to the commis in incidental victim perpetrated against sion of another offense his convic id., respect See 202. With to by the accused.6 first the defen degree, unlawful restraint in the tion of person provides part: “(a) A § 53a-95 relevant General Statutes degree guilty he restrains another unlawful restraint in the first when person person expose to a which other substantial under circumstances such injury. physical ...” risk of provides part: (a) (Rev. 2001) § to 53-21 relevant General Statutes any wilfully unlawfully permits “Any person or child who or causes years placed age to in such a situation that life under the of sixteen likely endangered, child is to be or limb of such child is the health of such impaired, any injured likely does of such child are to be or or the morals any likely impair . . child . shall be act the health morals of such felony.” guilty C class years imprisonment, The trial court sentenced the defendant to fifteen suspended eight years, years probation and five for the conviction of after years imprisonment degree, for the convic in the second three years imprisonment degree, tion of unlawful restraint the first three ipjury of risk of to a child. All sentences were run concur conviction rently. appealed judgment to the from the trial court pursuant Appellate Court, appeal this court and we transferred the (c) § and Practice Book 65-1. General Statutes 51-199 Luurtsema, rejected respects we a claim identical in all material namely, present case, in that a the claim that the defendant raises may kidnapping when the not be convicted of the crime of merely incidental to the restraint used in commission of that offense is Luurtsema, supra, crime of sexual assault. See State v. commission of the rejected 200, similar claim in State v. 202. This court first

dant challenges propriety of the trial jury court’s instructions on the element of Finally, intent. the defen dant claims that he is to a new entitled trial on all three counts on the prosecutorial basis certain improprie ties that had occurred trial. during accept We defendant’s prior interpre invitation reconsider our tation of the kidnapping statutes and now conclude that interpretation was incorrect and must overruled. Because the trial jury court instructed the in accordance precedent with this court’s then applicable governing interpretation of those we statutes, reverse the defendant’s conviction of in the kidnapping second degree and remand the case for a trial new on that e.7We charg disagree, however, the defendant’s and, therefore, other claims affirm the defendant’s con viction of in unlawful restraint the first degree and risk injury ato child. jury reasonably could have found the following year facts. the summer of victim, fifteen female,8 old her visiting aunt and uncle in Tucka- New hoe, July York. On 3, 2002, the victim’s aunt drove Chetcuti, 165, 170-71, 377 (1977). Following 173Conn. A.2d 263 our decision 1977,however, language suggesting Chetcuti in we used several cases kidnapping that a conviction could not stand when at the restraint issue See, e.g., Bell, 406, 416, was incidental to another crime. State 188 Conn. (1982) (whether any given 450 A.2d 356 restraint used in case is sufficient merely kidnapping, crime, ordinarily to constitute incidental another question Lee, jury); 335, 343, raises State v. 177 Conn. 417 A.2d 354 Subsequently, (1979) (same). Vass, 469 A.2d 767 (1983), prior cases, explaining question we clarified our that “the for the kidnapping to decide is not whether the was incidental to [another support but whether the evidence of intent to crime] restrain is sufficient to arising single (Empha convictions for the two distinct offenses out of a act.” Id., added.) sis 616 n.9. that, kidnapping The defendant claims under the construction of the adopt present case, judgment statutes that we in the ishe to a entitled acquittal part on the count. For the set reasons that we forth in opinion, I of this we conclude that the defendant is entitled to a new trial acquittal count, judgment on the anot count. policy privacy protecting In accordance with our interests of the crimes, injury child, including victims certain risk of to a we decline to York, to with other relatives. Bronx, New visit her to a train in the victim boarded evening, following The resi- return to the Tuckahoe York, intending New train, the uncle. While on the of her aunt and dence she awoke sometime between asleep. fell When victim she was in Connecti- realized that p.m., 9:30 and 10 she train. wrong had taken the apparently and that she cut began the in Stamford and victim disembarked train The main direction the toward stairwell the walking time, the victim noticed defen- concourse. At that nearby platform. who her from dant, watching was stairwell, she observed approached the victim As The her. defendant following that the defendant was ascended the follow the victim as she continued to stairs, top the victim reached the stairs. Before her up to on the caught grabbed the defendant her steps. fall neck, causing her to onto back injured elbow as a result victim, The who had her who fall, attempted up, defendant, but the get steps her, was positioned himself on the beside had at her hair. The victim screamed holding her down punched to let her The defendant then go. the defendant attempted mouth to thrust the victim once was Even- screaming. her throat as she fingers his down tually, the able to free herself from the defen- victim was Security personnel fled. grasp, dant’s and the defendant summoned, shortly thereafter, the defendant and, were apprehended time, At the the victim was and arrested. she that the defendant security guard thought told a her; however, the victim rape later, had been trying why the defendant had indicated that she did know the altercation According victim, accosted her. at minutes. with the defendant lasted least five initially charged various first offenses, in the including degree, unlawful restraint identify through identity may victim or others whom victim’s General ascertained. See Statutes 54-86e. injury child

risk to a and assault degree.9 third jury At the of selection, state beginning however, the an filed amended information the charging defendant one of in with count each the kidnapping degree, second injury child, of attempted risk to a sexual in assault the third degree and unlawful restraint in the degree, first three counts of assault in the third degree. Immedi- ately evidentiary the commencement of preceding the portion trial, of the however, the state filed a substitute information the with charging defendant in kidnapping the second degree, unlawful restraint in degree the first injury pretrial and risk of to a child. In motion dismiss, the defendant asserted that there was an inade- quate factual for of basis the in charge the kidnapping degree. second The defendant renewed in this claim a motion for of judgment acquittal, which he at the filed evidentiary conclusion of portion the of the trial. motions, each these the defendant claimed that he been overcharged had that, essence, conduct degree constituted third assault. The trial court denied both the defendant’s addition, motions. In defen- the requested dant the jury court instruct that, if it found that the restraint involved in alleged kidnapping was incidental to the defendant’s assault of victim, required then it was find the defendant guilty kidnapping not in the degree. second The trial requested court did not give jury instruction. The jury ultimately guilty found defendant as charged. appeal,

On the defendant claims that his conviction in the second kidnapping degree must be reversed because, contrary controlling precedent, jury should have been instructed to find the of that if it guilty first found that the charge defendant’s restraint the victim connection with was incidental to the restraint defendant’s of the victim information, original charged In the state’s the defendant also was with peace degree interfering second breach in the with an officer. The defen- of the victim. with his assault in connection due deprived of his that he was also maintains dant improper of certain trial as a result to fair process right attorney during state’s deputy assistant conduct improperly instructed the trial court trial and that of unlawful element of the offense the intent the defen- We degree. agree in the first restraint claims. with his other two claim but disagree dant’s first I maintains that our construction The defendant overly broad, been kidnapping statutes has this state’s for conduct thereby convictions resulting provide contemplate did not would that the legislature He claims that the legisla basis for such convictions. penalties for the enhanced available ture did not intend apply when the re kidnapping10 of upon conviction is incidental to the kidnapping involved in straint generally penalties kidnapping more severe than The crime of carries assault, robbery. example, kidnapping For the crimes sexual assault and of punishable by felony imprison degree first is a A that is a term of in the class years twenty-five years; see ment of not less than ten and more than (b) 53a-35a; in §§ and whereas assault the first General Statutes 53a-92 robbery degree, degree, in the first and most offenses of sexual assault punishable by degree are term first are class B felonies that a maximum twenty years. imprisonment (b), §§ 53a-59 53a- of of See General Statutes Similarly, (b), (b) the crime of in the 53a-134 and 53a-35a. felony punishable by imprisonment degree a that is a term of second is class B twenty years; (b) §§ more see General Statutes 53a-94 and 53a- of not than robbery degree 35a; most of sexual whereas second and offenses by punishable degree are C that a assault in the second class felonies are imprisonment years; §§ 53a- of of ten see General Statutes maximum term 53a-35a; degree (b), (b) assault in the is a class 53a-135 and and second by years imprisonment. felony punishable five D a maximum term of that (b) Moreover, and 53a-35a. under our current §§ See General Statutes 53a-60 kidnapping statutes, interpretation to form of the conduct is sufficient particular assault, degree a sexual assault basis of a conviction for may robbery higher degree for the basis of a conviction a also form kidnapping. example, (a) (1) (A), § under a For General Statutes 53a-72a person guilty degree, generally a in the class D of sexual assault third by years imprisonment; felony punishable see no more than five General person compels person 53a-35a; Statutes when that another submit person. against very of force such other same sexual contact use

commission of another crime or In support crimes. claims, his the defendant (1) contends: the evolution of the law predating common our kidnapping statutes indicates that narrower is warranted; construction (2) prior our decisions construing statutes appeared to recognize propriety that narrow interpretation, but we subsequently expanded scope offense, so, without sound reason for doing reflect the language statutes; literal the kidnapping opinion; see of this (3) approach footnote 6 our current leads to absurd unconscionable results when the provides restraint the basis of the kidnapping charge constitutes the same restraint that a defendant necessarily uses to commit the primary, underlying offense; significant majority of our sister states rejected approach and, have that literalist instead, have interpreted their kidnapping statutes accordance with the construction that the defendant us to urges adopt. response, the state asserts that the defendant has failed cogent to offer reasons for overruling estab precedent lished permits kidnap conviction ping when the restraint involved in the commission merely that offense is incidental to the commission of separate, offense underlying against victim. After careful competing claims, consideration of the arewe persuaded by the arguments. defendant’s conduct that forms the basis of the conviction of sexual assault in the third degree—conduct support that would not of sexual of conviction assault any greater degree—also kidnapping could form basis of a conviction for degree (a) (2) (A); in the first § in violation of General Statutes 53a-92 see opinion; felony punishable by prison footnote 19 of this a class A term of years twenty-five years. not less than ten and than not more See General (b) §§ and Statutes 53a-92 53a-35a. respect The defendant also raised two other claims with to his conviction degree, light neither of in the second of which we address in our of determination that the defendant is to a new entitled trial on that charge. particular, 53a-94, (1) interpreted In defendant claims that as court, unconstitutionally vague applied case, is to the facts of this improperly and the trial court instructed the element of We intent. do not address the defendant’s first claim because claim that implicates prior interpretation kidnapping statutes, this court’s of our which (cid:127) the state’s contention outset, At we address concerning prior holdings not our we should reexamine statutes. of this state’s the construction on two claim, primarily its state relies support of namely, the doctrine of principles, but separate related statutory interpretation decisis and tenet stare involving case law our against overruling that counsels reasonably if legislature of a statute construction may acquiesced have in that construction. be deemed to principles these we that both of recognize Although policy that should implicate important considerations that the doc- persuaded we are lightly, not set aside reconsidera- sufficiently to bar weighty trines are the kid- prior precedent interpreting tion of our napping statutes. repeatedly acknowledged signifi court has

“This system jurisprudence our cance of stare decisis to continuity stability it and to our case gives because Conway Wilton, 653, 658, 680 A.2d law.” doctrine of decisis counsels that “The stare not overrule its earlier decisions unless a court should require inescapable cogent logic the most reasons . it justified it. . . Stare decisis is because allows for conduct, promotes it predictability in the ordering is necessary relatively the law perception judicial it promotes saves resources it unchanging, important application efficiency. ... It the most theory consistency in our decisionmaking legal culture and ... an obvious manifestation has consistency notion itself nor decisionmaking quotation mative value.” marks (Internal omitted.) Ltd., Transport, Hummel Marten 477, 494, 657 (2007). 923 A.2d

Moreover, decisis, of stare evaluating the force “[i]n especially wary we our case law dictates that should be present case, interpretation adopt we in the and that we overrule not do in its stead. We not consider the defendant’s second claim because it likely arise retrial. not overturning decision that involves the construction

of a statute. . . . When statute, we construe a we act plenary not as lawgivers but as surrogates for another policy maker, the legislature. In our role as [that is] only surrogates, responsibility our is to determine what legislature, limits, within constitutional intended to do. Sometimes, when we have made such a determina- tion, legislature instructs us we have miscon- strued its intentions. We are bound the instructions provided. so . . . often, More however, legislature no clarify takes further action to its intentions. Time again, we have characterized the failure the legis- lature to take corrective action as manifesting legis- acquiescence lature’s in our construction of statute. . . . Once an appropriate permit interval to legislative passed reconsideration has without corrective legisla- tive action, the inference of legislative acquiescence places a significant jurisprudential limitation on our authority own to reconsider the merits of our earlier (Internal quotation decision.” marks omitted.) Id., 494-95.

None the foregoing principles, however, necessar- ily constitutes an insurmountable barrier to court’s prior reconsideration its precedent. respect With the doctrine of decisis, stare we repeatedly have ob- served that value of adhering [past] precedent “[t]he an end in and of itself precedent ... if the injustice. reflects substantive Consistency must also a justice serve related end. . . . When previous deci- clearly sion injustice, creates the court seriously should consider whether the goals of stare are decisis out- weighed, dictated, by rather than prudential pragmatic considerations that inform the doctrine to a clearly enforce . erroneous decision. . . The court must weigh benefits of its against [the] [stare decisis] burdens in deciding whether to overturn a precedent it unjust. thinks is ... It important is more that the

521 elaborate later and more upon be right should court previous consistent with cases than consideration consistency be must not short, ... In declarations. way, particular a case in a only deciding reason for Consistency obtains its unjust. if to so would do just (Citations decision.” promotes when it value best v. State omitted.) marks quotation internal omitted; (2005). A.2d 1118 734, 274 878 Miranda, 727, Conn. often does demon can and Moreover, “[ejxperience sound, needs modifica rule, that a once believed strate Indeed, . law to justice . . better. tion serve [i]f have exert the relevance, must have current courts when reason so rule law capacity change recognized . . . . . . court has requires. [Thus] [t]his to the of stare many exceptions that are rule times there quotation internal marks omitted; (Citations decisis.” 633, 691, Conn. 888 A.2d Skakel, State v. 276 omitted.) 1030, 578, S. L. 985, 549 U.S. 127 Ct. 166 denied, cert. Tennessee, v. Payne 2d see (2006); Ed. also 115 L. Ed. 2d 720 808, 828, U.S. 111 S. Ct. command; rather, decisis is not an inexorable (“[s]tare principle policy is a and not a mechanical formula it quotation of adherence the latest decision” [internal principles, omitted]). marks accordance these prior our we have not hesitated revisit and overrule criminal holdings, prior holdings applicable to including supra, v. matters; see, Skakel, 693; State v. State e.g., supra, 733-34; Colon, v. Conn. Miranda, State we 601-602, (2001); 778 A.2d 875 once are convinced unjust. were they incorrect and We have recognized “legislative also inaction interpretation our is not neces- [following statute] . . sarily quotation affirmation . .” legislative (Internal Colon, omitted.) supra, marks 257 Conn. 598 n.14; Correction, accord Rivera Commissioner of Indeed, 214, 252, 756 A.2d 1264 we recently legislature’s have observed that the failure to

amend a in response interpretation statute to our provision dispositive is not of the issue because legislative always inaction is not “the best of guides legislative quotation (Internal intent.” marks omitted.) State Colon, v. also Streitweiser supra, n.14; 598 see v. Co., Middlesex Mutual Assurance Conn. 371, 379, 219 Thus, 593 A.2d (1991). despite 498 our reluctance to overrule cases involving statutes, construction of occasionally we so, have done when “even the legisla ture has had numerous occasions to reconsider [our] interpretation and has failed to do Conway v. Wil so.” ton, supra, v. Wash Conn. 662; see, e.g., Waterbury 238 ington, 506, 538-39, 260 Conn. 800 A.2d 1102 (2002) prior cases (overruling concerning exhaustion doctrine applied as to Connecticut Environmental Protection Ferrigno Development Cromwell Act); v. Associates, 189, 202, 244 Conn. A.2d 708 1371 (1998) (overruling prior interpretation of General Statutes § 37-9 ^[3] interpretation because that created con irreconcilable flict between civil and provisions usury criminal law); Santopietro v. Haven, New 239 207, 215, Conn. 682 A.2d 106 (1996) (concluding that our previous statutory interpretation of General Statutes 52-228b was § flawed); Conway Wilton, supra, 680-81 (overruling v.

prior interpretation of General Statutes § 52-557f ^[3] applied to municipalities). Indeed, a number of recent cases, prior interpretation we have overruled our of a State v. Skakel, See, criminal statute. e.g., 276 supra, prior 666-67 (overruling pro case law affording spective only effect to 1976 amendment to limitation period of General Statutes State § 54-193); [Rev. 1975] v. Miranda, supra, 274 Conn. 733-34 this (overruling prior court’s interpretation of General Statutes 53a- § Colon, [3]); supra, 59 (overruling [a] prior interpretation court’s of General Statutes 53a- [a]). For several reasons, persuaded we are that it appro- priate interpretation to reexamine our of the kidnapping request. the defendant’s in accordance statutes observed, argu- has First, previously as this court “[t]he precedent compelling are least ments for adherence may be reason- be discarded . the rule to . . when have determined conduct ably supposed to quotation omitted.) .” marks . . . (Internal litigants 330, A.2d 1003 312, 262 Conn. Craig Driscoll, Rights & on Human accord Commission (2003); Education, Board Opportunities v. who crimi- engage Persons 855 A.2d misconduct, persons engage like who tortious

nal . . “rarely thought at all will . give if conduct, their applied govern law would question what their viola- they apprehended if were to be conduct” v. Conway marks (Internal quotation omitted.) tions. Wilton, Applying principle Conn. 661. supra, 238 no present case, we conclude that there is reason to the attempt to tailor his or her anyone to believe that would of interpretation of this court’s light criminal conduct interrelationship kidnapping between our statutes prohibiting criminal statutes same simi- other Consequently, this lack of reliance mili- lar conduct.12 in favor of the defendant’s contention that we tates interpretation of the should revisit our statutes.

Second, presented the issue the defendant’s claim likely top have of the is not one that is to reached the directly implicates because the issue legislative agenda relatively only category cases, narrow of criminal that is, kidnapping cases which the restraint involved to the commission another crime. More- incidental subject to over, in contrast to other matters that are suggest, course, not We do that our criminal laws do serve the not dispute important general We do not the notion function deterrence. also prohibited by public fair of the that the is entitled to notice conduct that is however, person, imagine, It to our criminal laws. is difficult before assault, robbery, stop committing an sexual assault or would intentional committing kidnapping. also the crime of think about how avoid it

legislative regulation, posi- is uncertain whether tion the defendant advocates would attract inter- sponsors ested with access to legislature. Finally, to the extent such potential sponsors exist, do it is unclear sufficiently also whether the issue is im- portant full gain support. their

Third, this never court has undertaken an extensive analysis of whether our kidnapping statutes warrant the broad construction that we have them. given consistently Although we have reaffirmed our existing statutes, construction of those our conclusion essen tially has been limited to general observation— predicated solely language the kidnapping statutes—that “legislature fit seen [has] merge offense felonies, other impose any nor requirements restraint, time for nor requirements distance asportation, crime quotation marks omitted.) State kidnapping.” (Internal v. Luurtsema, accord State v. 202; supra, Conn. Wilcox, 441, 465, 254 Conn. (2000); State 758 A.2d 824 v. Amarillo, 285, 304-305, 198 Conn. 503 A.2d 146 (1986); Lee, State 335, 343, 417 A.2d 354 (1979); Chetcuti, 165, 170, 377 A.2d 263 In view fact parties present that the to the appeal thoroughly have and thoughtfully briefed the issue, opportunity case affords us the to conduct a more searching examination of the merits of that issue we previously than have undertaken. fourth, related,

A albeit prior reason to reconsider our holdings construing kidnapping statutes encom- pass virtually all sexual assaults is robberies prior all our of cases have on a application relied literal our language See, kidnapping statutes. e.g., State Luurtsema, supra, 262 Conn. 201-202. Although v. frequently

we adhere to the statute, literal of a language we are not bound to do so when leads to it unconsciona- Clark v. ble, See, anomalous or bizarre results. e.g.,

525 380, 400-401, Correction, 281 Conn. Commissioner of of statu 2d literal construction (2007) (rejecting A. 1 917 would that construction tory because language same governing scheme legislative inconsistent Correc Connelly v. Commissioner subject matter); 394, 404-405, (2001) 780 A.2d 903 tion, 258 Conn. when that con literal statute construction (rejecting inequitable and unintended would result struction Corporate v. Maretz 595 consequences); Levey Miller Circle, (2001) (declining Conn. 780 A.2d43 121, 133, 258 literally when to do so statutory apply language v. 242 Conn. Brown, results); would lead bizarre apply literal 402, (declining 389, (1997) 699 A.2d when practice and rules of of statute language sensibly in that fash “applied could not be language language to the literal The fact that our adherence ion”). can lead to such arguably statutes prior interpretation. is our result reason to revisit requires Fifth, legislative acquiescence “the doctrine part acquiescence legislature. actual prior cases, employed most we have of our [i]n [Thus] simply inaction, legislative the doctrine because of affirmatively amended the legislature but because judicial inter subsequent or administrative statute specific provision but not to amend the pretation, chose Berkley Gavin, at issue.” statute n.11, words, 776-77 A.2d 248 other 761, particularly strong “[legislative concurrence [when] legislature makes unrelated amendments in the Dis (Internal quotation omitted.) same statute.” marks & 698 A.2d Webster, cuillo Stone It (Berdon, J., dissenting). significant, therefore, that, exception with the of a 1993 amendment only penalty provisions,13 53a-94 its nei affecting to § section, definitional pertinent ther that section nor amendment, years imposed Under 1993 three of the sentence that suspended (a) or § violation of 53a-94 shall not be reduced. Public Acts a 93-148, 1, 1993, (b). § § at No. codified General Statutes 53a-94

526 53a-91, subject any

General Statutes has been sub- § was stantive amendments since it first enacted in 1969.14 Finally, 1977, when rejected since this court first a that a claim conviction could not based be bill bill, States, failure adopted two tee ful (although court 492, evidence of the intent obscured in the mist person’s Conn. 679-80. cases tee. are reluctant to draw inferences assertion of a [internal that not incidental of another ing place provide movement of the ing evidence that the An Act coercion amended to statutory Cases, means 2005 262 14 legislative attempts hearings Asportation endorsed ^[2] “[t]hat Wenote The state legislative Conn. disparate approaches represented 741-42, Sess. discussed has relied 461 U.S. both bills to . . Raised Bill No. Concerning Asportation second that the liberation and to n.19, quotation legislative definition of no inference of . crime”). reasons for that lack of action remain (proposing 179, intent to [General provide contained that, following 912 A.2d 462 at by committee). committee’s restraint to another Furthermore, contends that the failure of carry away person 613 A.2d committee to 574, 600, 103 legislation in three bills were proposed on a were considered persuasive. legislature crime Kidnapping Cases, victim”); None proposal.” Ricigliano marks committee to prevent to the Statutes legislative that 53a-91 testimony kidnapping in committee ofthese 1159, of “ the entire (2006); bill that took ‘abduct’ are not the best of rejection legislative omitted]); commission this court’s kidnapping requires degree S. Ct. An Act “we are perceived As this court (1992); report . . . §§] 2003 Sess. committee’s regarding legislative in bills, however, introduced report together, regarding see also 53a-91 such means to . place Kidnapping that is not incidental to the commission ^[2] under coercion and restraint inactivity.’’ a bill General unaware accord Coneming Asportation Senate cf. In re Valerie direct be amended to opinion them as 76 L.Ed. 2d 157 proposed of another person’s bill to directly with intent to to 53a-94a ... to the v. Ideal Bob bills, (proposing these previously ^[3] relative merits and demerits of Bill No. generally Conway Wilton, supra, response proposing rejection Assembly, . . legislative history floor, weight in State v. guides Jones Cases, lacking floor . . . and [4] any contrary approach proposals carry away person liberation substantial restriction on Forging Corp., bill when crime”); re Valerie reported 530, 2005 unexpressed occasion in which this intent from the failure provide University to that Raised Bill No. of a may has in merit. The state’s (1983) (“unsuccess D., supra, amendments prevent which never voted legislature passed Luurtsema, supra, legislative because in most proposed An Act Concern observed, and to should be be drawn from be amended to § 53a-91 [2] out of ^[1] D., Sess. decision. committee is Kidnapping committee . v. United “ and thus commit . . (propos commit ‘abduct’ another to first intent” degree bill as under given “[w]e 1284, such n.19 See

527 merely is incidental a restraint that involving on conduct crime, many of of another the courts to the commission contraiy in inter- reached a conclusion other states have fact, In some of their statutes.15 kidnapping preting precedent that had prior have overruled those courts encompass broadly to statutes kidnapping construed to the commission of merely that incidental restraint is we in the distinct Indeed, now are another crime.16 to the jurisdictions that continue to adhere minority of may be sustained conviction kidnapping view that of that restraint that forms the basis even when the than the severity or duration greater conviction no necessary complete crime, another such restraint robbery. mere fact that a course, Of assault majority of construe their statutes kidnapping states differently kidnapping we our stat- than have construed necessarily mean that our construction utes does not away from the construction wrong; decisive trend however, sup- previously adopted, that we have does con- port the contention that our reexamination that appropriate.17 struction is 15 subsequently opinion. We in this set forth these cases 16 example, highest For states of York and California courts New precedent prior adopting interpretation have overruled their their adopt purposes kidnapping urges us statutes that People Daniels, 1119, 1139, this state’s statutes. See v. 71 Cal. 2d Chessman, 225, Rptr. (overruling People 459 P.2d 80 v. 38 Cal. 897 166, denied, 915, 650, [1951], 2d 238 cert. S. Ct. Cal. P.2d 1001 343 U.S. 72 People Levy, [1952]); 159, 164-65, L. 96 Ed. 1330 v. 15 N.Y.2d 204 N.E.2d People (overruling Florio, N.Y. 92 256 N.Y.S.2d 793 N.E.2d 938, 85 [1950]), denied, 1770, 14 cert. S. Ct. L. Ed. 2d 701 U.S. Daniels, rejected moreover, Supreme expressly In the California Court effectively legislature acquiesced holding claim that the California had in the and, therefore, People holding in Chessman that not be should revisited. supra, Daniels, acknowledging legislature had 1127-28. After that the not kidnapping statutes, fit amend seen the California the court Daniels prior nevertheless “should hesitate concluded it to reconsider [its] [legislative] such dictated construction intent whenever a course is Id., teachings experience.” 1128. time and note, moreover, previously We court that there has indicated may be factual scenarios in which a conviction would constitute

“an absurd and unconscionable result” because of the limited duration of sum, acquies- the doctrine of although legislative may provide

cence reason compelling for a court to reexamining prior precedent refrain from its construing statutory a particular see, provision; e.g., Hummel v. Transport, Ltd., supra, Marten 282 Conn. 501-502 (rejecting prec- claim that this court should prior revisit statute construing edent as final containing judgment because, requirement alia, previously inter court had rejected claim in acqui- identical reliance on legislative escence at other principle); times, particular circum- stances make . . . “legislative silence . . . ambiguous and an unreliable indicator of legislative [therefore] Rights intent.” Commission Human & Opportuni- v. Board Education, supra, ties 270 Conn. 724. For reasons, the foregoing we conclude that such this is case.18 we Accordingly, accept the defendant’s invita- tion to prior revisit and reconsider our construction of statutes. kidnapping slight degree (Internal quotation the confinement or the of movement. marks omitted.) Luurtsema, supra, 203-204; State v. 262 Conn. v. accord State Tweedy, (1991); Troupe, 219 Conn. 594 A.2d see 906 also State 284, 313-15, (1996). light suggestion A.2d 917 In of the remedy any case-by- these cases that this could court such unfairness on basis, may legislature changes case have been less inclined to make to kidnapping it statutes than otherwise have would been. As our case law interpreting evolved, however, apparent any those has statutes it is that kidnapping limitation such on the reach of our statutes is reserved for the rare factual scenario in which the restraint is so minimal that the statute unconstitutionally vague applied would to as that State v. scenario. Cf. Luurtsema, supra, (rejecting 203-204 claim that evidence insufficient uphold kidnapping noting to conviction and that defendant had failed to challenge ground kidnapping raise to conviction on that statute was uncon stitutionally vague applied victim); id., as to brief defendant’s restraint of J., (Borden, concurring) (expressing challenge kidnapping view that to ground degree slight conviction on that of movement was or duration of claim). confinement was must minimal be raised as constitutional But cf. id., J., (Katz, dissenting part) (concluding 211-13 convic warranting judgment tion was absurd and unconscionable result reversal of “ ” victim). of conviction on basis of defendant’s 'miniscule movement’ of 18 rejecting concluding legislative In our reasons doctrine of acquiescence reconsidering prior interpretation is not an bar absolute our statutes, purports distinguish state’s the dissent factu- well estab our task are principles govern statute, of a construction it involves lished. Because Bell, plenary. See, e.g., our review construing stat “When A.2d 198 748, 786, ascertain give is to objective ute, fundamental [o]ur ... In legislature. apparent effect to the in a reasoned man determine, we words, seek other applied statutory language ner, the meaning question case, including the facts of [the] actually apply. ... seek does whether the language l-2z Statutes meaning, General to determine that ing of the statute itself first consider the text directs us If, examining to other statutes. after relationship and its relationship, mean text and such considering such and does plain unambiguous such text ing results, yield unworkable extratextual absurd or shall not be of the statute meaning evidence plain . and unam . . When a statute is not considered. to inteipretive guidance we also look biguous, its history surrounding and circumstances legislative to policy designed to it was enactment, legislative relationship legislation its to implement, existing general the same principles governing and common law omit . . .” marks subject (Internal quotation matter . England Telephone Co. Cash Southern New ted.) 650-51, 931 A.2d 142 man, 1-2z, our review begin accordance with we § kidnapping with language defendant’s claim statutory provisions. statutes and other related primarily and other The crime of offenses kidnapping liberty, in person’s restrictions of another involving interference, restraint and custodial cluding unlawful support ally cases we have cited in of our ultimate conclusion each of the case, that, particular of that under the circumstances reconsideration prior Although cases involve different statutes case law is warranted. those principle that, interpretative histories, each case stands for and different present identified, applicable case. we have for reasons that part are set forth in VII of the Code, Connecticut Penal General seq. provi Statutes 53a-91 et Under § those sions, of a hallmark is an abduction, whereas the hallmark of an restraint, unlawful a less crime, serious is a restraint.19 53a-91, Under the defini § incorporates tion the term “abduct” and builds on Thus, the definition of the term “restrain.” under subdi “ vision of General 53a-91, Statutes § ‘[r]estrain’ person’s means to intentionally restrict movements unlawfully in such a manner as to interfere substan tially liberty by with his him place from moving one another, by or him in confining place either where the restriction place commences or in a he which has moved, been without consent.” Under General Statutes “ 53a-91 (2), person § means to restrain a [a]bduct’ prevent his liberation either (A) secreting place or him in a holding likely where he is not to be found, or (B) threatening to use using physical force or intimidation.” example, person For commits the crime of in the second degree 53a-94, § violation of the crime of which the present convicted, person." (Emphasis case was “when he abducts another added.) (a). By contrast, person § General Statutes 53a-94 commits the degree crime of unlawful restraint the second “when he restrains another person.” (Emphasis added.) (a). General Statutes 53a-96 We also note that aggravating the existence of certain circumstances marks the difference degree between crimes of unlawful restraint in the second and unlawful Compare degree. in (a) restraint the first § General Statutes with 53a-95 (a). person § General Statutes A 53a-96 commits the offense unlawful degree person restraint in the first when he another restrains “under circum expose person physical which stances such other ato substantial risk injury." (a). aggravating General § Statutes 53a-95 The existence of certain distinguishes kidnapping degree circumstances also the crimes of in first kidnapping degree. Thus, and in the second under § General Statutes 53a- person (a), kidnapping degree 92 commits in the first when “he abducts person” [hjis compel “(1) person pay (A) another and intent is to a third money property particular (B) engage or deliver or as ransom or in other engaging particular conduct; or to conduct refrain from in or he restrains person physical (A) injury upon abducted with inflict him or sexually; (B) accomplish or

violate abuse him or or advance the commission felony; (C) person; (D) aof or him or a terrorize third interfere performance government of a function.”

531 more substantially kidnapping are penalties for restraint. Unlaw- unlawful penalties than the for severe example, degree, in the second ful restraint 53a-96 (b); General Statutes misdemeanor; § A class of not more than by imprisonment a term of punishable Kidnapping 53a-36. year. Statutes § one See General felony; is a class B General degree, however, the second by twenty years toup (b); punishable 53a-94 § Statutes may sentence not be portion of which imprisonment, and 53a-35a 53a- suspended.20 §§ See General Statutes (b). 94 opportunities to 1977, we have had numerous

Since statutes, kidnapping generally scope examine to a claim that the crime response merely that was apply to a restraint not intended See, crime. to the commission of another incidental Luurtsema, State 200; v. State v. 262 Conn. supra, e.g., Amarillo, Wilcox, supra, 254 Conn. State 465-66; v. Vass, State 304-306; 604, v. 191 Conn. supra, Johnson, State v. Conn. 614, (1983); 469 A.2d 767 'd, 73, aff U.S. 163, 177-78, 440 A.2d 858 (1981), Briggs, State L. v. 969, (1983); Ct. 74 Ed. 2d 823 S. denied, 328, 338-39, (1979), 426 A.2d 298 cert. Conn. 64 L. Ed. 2d 862 (1980); 477 U.S. 100 S. Ct. DeWitt, State 637, 640-41, v. 419 A.2d 861 Lee, supra, 177 Conn. State 342-43; (1979); Chetcuti, 173 Conn. 170. In reliance on a literal supra, we statutory consistently application language, that, rejected claim, explaining have because statutory of the terms “restrain” definitions specifications, no distance “abduct” contain time or disparities punishment comparable degree for the first 20 The are felony; degree is offenses. Unlawful restraint in the first a class D General by imprisonment (b); punishable less § Statutes 53a-95 a term of than 53a-35a; year years; and not than five see General Statutes one more degree felony; in the first class A General Statutes whereas (b); punishable imprisonment of ten § 53a-92 a term of between twenty-five years. § 53a-35a. See General Statutes offense does not kidnapping require proof that the any victim was confined for period minimum of time any e.g., State See, moved minimum distance.21 v. Luurtsema, supra, 201-202; State v. Chetcuti, supra, explained that, 170-71. We also have because there is prohibition general against person no being convicted multiple crimes out of arising acts, the same act or it is of no moment that the confinement or movement provides the basis of a kidnapping conviction is merely incidental to the commission another crime v. Luurtsema, the victim. See State against supra, 203; Wilcox, supra, State v. Amarillo, State v. 466; supra, State 305; v. Vass, supra, 614-15; v. Johnson, State Briggs, State v. 178; supra, supra, 338-39. Accordingly, proper inquiry for a jury evaluating kidnapping charge is whether the confinement or movement of the victim was minimal or incidental another offense rather, against but, victim whether it was accom plished requisite intent, is, prevent State v. See, Luurtsema, supra, victim’s liberation. e.g., Wilcox, supra, State v. Amarillo, State 202-203; 466; supra, 305.

In Luurtsema, we applied principles strictly these upholding the first degree kidnapping conviction of the defendant, Luurtsema, Peter whose restraint of the vic- tim entirely was both minimal and coextensive with the attempted defendant’s sexual assault of the victim. See v. Luurtsema, supra, State 262 Conn. 200-204. In the leading up attempted assault, hours to the sexual victim was Luurtsema’s consensual social companion, previously noted, however; opinion; As we see footnote 17 of this recognized court has that “there are conceivable factual situations in which charging a defendant with based the most minuscule [on] [move ment or duration of would result in an confinement] absurd and unconsciona Luurtsema, supra, . .” challenge ble result . . 262 Conn. 203-204. A predicated to a conviction on such miniscule movement or grounds duration of confinement remains viable on constitutional under id., vagueness doctrine. See 204. Luurtsema moments after escape able to and she was to assault attempt his unsuccessful had commenced floor, her sexually removing her to the by pulling her and chok- underpants, apart her forcing legs pants from the case differed Id., regard, 183. In this her. ing a greater which had involved all of predecessors, its Thus, of confinement. or duration of movement degree opinion in joined majority Borden, who Justice in which separate Luurtsema, authored concurrence case, the that, “as in when, he observed [Luurtsema’s] or the of victim, length of movement of degree very be forcibly restrained, may appear to she was time may part form same facts and where those slight, attempted for sexual the elements the conviction may it counterintuitive in the first seem degree, assault nonetheless also to conclude the evidence Id., 204 kidnapping.”22 for a conviction of sufficient dissented, con- Justice Katz (Borden, J., concurring). of the victim because Luurtsema’s restraint cluding that, necessary merely incidental to and was minimal and conviction of kid- attempted assault, sexual his and unconscionable constituted an “absurd napping (Katz, J., dissenting Id., in see part); result.” 211-12 (Katz, J., dissenting id., part) (contrasting also 208-11 in imposed restraint prior cases of this court which kidnapping was not essential alleged victim sexual underlying assault). commission of the considerations identified Justices light Luurtsema, because of the Borden and Katz severity upon convic- penalties relative available tion the crime of a close examination kidnapping, majority Luurtsema, ultimately agreed Justice Borden with the how ever, any challenge arguable conviction based on “the slightness brevity of the movement and of the forcible restraint” must be unconstitutionally vague confined “to claim that the statute [is] Luurtsema, case”; applied particular supra, facts to the J., concurring); (Borden, had not 262 Conn. 205 a claim that Luurtsema J., (Borden, appeal. Id., concurring). raised on statutory language

of the relevant is warranted. That ambiguity. previously examination reveals an explained, weAs statutory and in accordance defini- tions of “restrain,” the terms “abduct” and our decisions may have established that a convicted of upon proof that he restrained a victim when accompanied by requisite that restraint is the intent. previous explored decisions, however, Those have not parameters particular, intent, of that how the prevent [a “intent to victim’s]liberation”; General Stat- (2); necessary § utes is, 53a-91 that the intent to estab- lish an abduction, differs from the intent “to interfere substantially liberty”; [a victim’s] with General Statutes necessary (1); § is, 53a-91 that the intent to establish Certainly, a restraint. when an individual intends to substantially person’s liberty, interfere with another he keep person escaping, also intends to that from at least period time; for some of words, other he intends to prevent person’s point Thus, liberation. at liberty which an intended interference with crosses the prevention line to become an intended of liberation is entirely clear. involving secreting At least in a case not of a place unlikely victim in a that he or found; she to be (2) § (A); see General Statutes 53a-91 it is the intent only element qua an differentiates abduction—the sine kidnapping—from non crime of a mere relatively penalties restraint, unlawful and the minor statutory attendant latter offense.23Because the 23Although, glance, may appear at first it that an abduction within the meaning may (2) (B) distinguished pur §of 53a-91 be from restraint poses by (1) requirement of § 53a-91 virtue the former subdivision’s physical intimidation, reading the threatened actual use of force or a closer statutory of the definition of “restrain” demonstrates that the distinction largely illusory. (1), contemplates § Under 53a-91 the term “restrain” Although unlawful and nonconsensual movement of a or confinement victim. may accomplished by “deception”; it is true that a restraint be General see (1) cases, (A); majority § Statutes 53a-91 in the vast will restraint through Indeed, achieved the use force or intimidation. a review of appellate upholding against decisions convictions for unlawful restraint

535 distinction, on this not elaborate itself does language resolve interpretive guidance further we seek to the turn 53a-91. We therefore by created ambiguity enactment surrounding history and circumstances policies those stat- statutes, relationship their implement designed utes were insufficiency evidentiary involve such cases indicates that most claims Monk, See, e.g., physical v. State force or intimidation. the use of cousin, (defendant, along 430, 431-32, his forced 503 A.2d 591 park, car, her return to car when her to forced victim to enter drove sexually her); it, down, State her choked and assaulted she exited held prevented Rothenberg, 253, 254-55, 487 (1985) (defendant A.2d Conn. exit, leaving closing tried door she held victim from condominium her, arms, alternately promised to and threatened allow her to leave her her); Pauling, pulled sexually her assaulted then to couch and hair, slapped 556, 560, 925 App. (defendant grabbed victim’s Conn. A.2d bed, throat, times, grabbed her on held her down her three her threw face denied, (2007); her), 933 A.2d 727 and threatened to kill cert. 351, Youngs, App. 348, (defendant dragged v. 97 Conn. 904 A.2d 1240 State by physically using threatening overpowering her and victim to his car using prevented leaving by locks), language, and from car automatic door her denied, 930, (2006); Jordan, 959 State v. 64 Conn. cert. 280 Conn. 909 A.2d by up steps App. 143, 145, (2001) pulled (defendant her A.2d 310 victim 781 hair, pinned shoulders, her in face and hit her with her to bed her struck 466, 467-68, 470, juice Coleman, App. bottle); 727 v. 52 Conn. A.2d State bathroom, (defendant smaller, held 246 ill victim club her confronted body weight sexually her), shoulder, assaulted cert. braced her with his and 902, Luster, denied, (1999); App. v. 249 Conn. A.2d 776 State 48 Conn. 732 872, (defendant unlawfully apartment, 874, 277 713 A.2d entered victim’s jumped top bed, pulled her), denied, her in and and hit cert. 246 Conn. on of App. 80-81, 901, (1998); Coleman, 78, v. 717 A.2d State 42 Conn. 679 239 residence, put (1996) (defendant hand over A.2d entered victim’s his 950 sexually mouth, her, pulled edge bed her harm her of and threatened her, over her and her not to move for five assaulted threw blanket told (1997). minutes), grounds, In rev’d other 241 Conn. 699A.2d 91 none kidnapping, although charged each of these cases was the defendant force; rather, case, of such case involved the use or threatened use each restraint, charged with of unlawful as well the defendant was and convicted gave underlying conviction. as the crime that rise to the unlawful restraint Monk, supra, degree assault); (first State v. v. 430-31 sexual See State assault); Pauling, supra, Rothenberg, supra, (first degree v. 254 sexual State supra, (third degree assault); Youngs, (criminal violation State v. 350 protective Jordan, supra, (third degree assault); order); v. State State Coleman, supra, App. (first degree assault); 466-67 sexual sixty years age Luster, supra, (third degree person assault of kidnapping principles. common-law See, e.g., South- ern England Telephone New Co. v. Cashman, supra, 283 Conn. 650-51.

Kidnapping, a common-law misdemeanor, tradition- ally was defined the forcible removal of another country. LaFave, individual from the See 3 W. Substan- tive Criminal (2d 18.1, p. Law Ed. 2003) 4; § see also 4 W. Blackstone, Commentaries on the Laws England p. Early 219. American statutes defining the requirement crime retained the of a boundary crossing requirement by but relaxed the proscribing the victim’s forcible removal from the state. note, See “From Black- stone to Innis: A Judicial Search for a Definition of L. Kidnapping,” 16 Suffolk U. Rev. Over (1982). time, however, scope proscribed behavior and penalties attendant to a conviction were substantially broadened by state legislatures. See 3 W. LaFave, supra, 18.1, pp. 4-5; “A note, see also Ratio- nale of Law of Kidnapping,” 53 Colum. L. Rev. 540 early century, twentieth kidnappings for ransom had become increasingly common, state lawmakers responded by amending kidnapping statutes to criminalize a wider range conduct and to authorize upon more severe sentences conviction. See note, L. supra, 53 Colum. Rev. 540. This trend intensified in highly publicized wake mur-

der of the son of famed young aviator Charles Lindbergh public outcry 1932 and the that followed. See 3 W. LaFave, supra, 18.1, p. 4. the evils that Among § both the common law statutory and later prohibitions against to address were the sought isolation of a victim from protections society of and the law and special fear and inherent in such danger isolation.

The evolution of Connecticut’s kidnapping statutes developments. tracks these 1901, Prior to kidnap- our ping primarily statute focused on the unlawful removal Coleman, supra, older); App. (first degree 79-80 sexual assault).

537 penalty a of a state, carried and person of a from See imprisonment. of relatively period fine and a short In the defini- Rev.) 1416.24 (1887 General Statutes § to include intrastate expanded was tion of ransom, and extracting purpose for the of abductions thirty years im- to penalty increased the maximum 1162.25 (1902 Rev.) § Statutes prisonment. See General again was broadened statutory definition of restriction a victim’s encompass types most of to of for a violation penalties and the available liberty, any penal severe of the most provision among were 8372.26 Rev.) (1949 § statute. See General Statutes “Every person (1887 Rev.) provides: who shall § Statutes General any shall, fraudulently State, person, decoy kidnap, of or without or out this authority, any person, imprison have or with intent to him lawful arrest any will, State, way against his or be in held in service carried out of this to dollars, imprisoned not not than and more shall be fined more five hundred years.” than three “Every person provides: (1902 Rev.) who § 1162 shall General Statutes state, any shall, fraudulently decoy person kidnap, of mali out or or ciously authority, imprison any person lawful or with and without arrest state, any way against intent have him carried out of this or detained forcibly any every person fraudulently will; shall or restrain his and who liberty release, person with for his or of his intent demand ransom injure person physically kill who threaten or to such so shall thereafter liberty, fraudulently forcibly or in case demand for such restrained his imprisoned complied with, be not more ransom for his release not shall thirty years.” than “Any person provides: (1949 Rev.) who shall General Statutes kidnap fraudulently decoy any person or into or out of this state who or maliciously authority, imprison any person shall, and without lawful arrest or any way with to have him carried out of this state or detained intent fraudulently forcibly will, any person against who or restrain his shall liberty, ransom, any person revenge of his with intent to demand or who, release, reward, thing for his or with concession or other valuable intent, any injure shall or violence or threaten harm or such use force fraudulently forcibly liberty, shall, person, him of such or to restrain his person kidnapped liberty, if to the or restrained his be death result so subject penalties provided by general statutes for the crime of to the premeditated murder, proof wilful, killing or deliberate and required specific If to kill in such shall not be the state. death case liberty, person kidnapped shall result to the so or restrained his imprisoned person shall in the State Prison not convicted of such crime fifty years. Any person conspire who more than shall another violate

Indeed, in cases in the resulting death the kidnapping victim, the penalty was the same as the penalty murder, even not required prove state was though premeditated death was either product or the specific of a to kill. See (1949 General Statutes Rev.) survived, 8372. If victim § his kidnapper faced up fifty years imprisonment. See General Statutes (1949 Rev.) 8372. §

Beginning 1950s, however, questions in the surfaced the propriety expansively about of such kidnap- worded ping particular, statutes. In expressed concerns were newly adopted that the permitted statutes imposition extremely severe sanctions for a broad ill defined range behavior, relatively including types trivial of restraint. See LaFave, 3 W. supra, 18.1, pp. 4-5. Moreover, as one noted, “virtually commentator all conduct scope within the law [was] punishable under provision: some other criminal e.g., extortion, homicide, assault, rape, statutory robbery, rape, contributing delinquency of a minor [and] .... Consequently, practical effect of kidnapping permit law the imposition of additional sanc- [was] when tions one of accompa- other crimes [those] [was] nied asportation.” detention and Note, supra, 53 L. Colum. Rev. 556.

These prompted concerns for legislative calls reform by the drafters of the Model Penal Code. As the drafters commentary stated in the proposed code, was “to goal proper system devise to dis- grading simple imprisonment criminate between false and the more terrifying dangerous abductions for ransom or other purpose.” felonious Penal 212.1, Model Code § 1, p. comment Draft No. (Tentative 1960). drafters, noting “[e]xamples prosecution of abusive any provisions imprisoned of this section shall be in the State Prison thirty years.” not more than

539 “to restrict common,” sought also kidnapping [were] or cumulative alternative as an scope kidnapping, is rob- significance chief behavior whose treatment of overlap- of this scope the broad bery rape, because . injustice . . .” has rise to serious ping given offense statutory schemes advocated for Id., p. 13. The drafters injustice such opportunities for would “minimize dis- [prosecutorial] clearly rationally restricting and by p. punish.” Id., 15. cretion kidnapping law also was scope of the Contraction case of In the landmark through the courts. effected 842, 204 N.E.2d 159, 163-65, v. N.Y.2d People Levy, 15 denied, 938, U.S. 85 S. Ct. 793, cert. 256 N.Y.S.2d the New York Court 1770, (1965), 14 L. Ed. 2d 701 of New York’s rejected application a literal Appeals and statute to the detention broadly kidnapping worded robbery during victims movement of two armed provi noted that the robbery. The court course issue, “confin[ing] which defined sion at confined cause him ... another with intent to quotation omitted) marks will”; (internal his against crimes, several other 164; literally overrun id., “could notably robbery rape, and in some circumstances confinement, assault, since detention and sometimes frequently victim, accompany the will against that the legisla crimes.” Id. The court concluded these “restraints, accompa not intend for sometimes ture did are incidents to other crimes asportation, nied which parts long have been treated as of other integral separate kidnap ... to constitute a crime crimes even sometimes be ping, though kidnapping might Id.; literally statutory out from words.” see spelled 266, 270, N.E.2d People Lombardi, also 20 N.Y.2d of the crimi 206, 282N.Y.S.2d 519 direction (1967) (“the scope of the kidnapping nal law has been limit the very substantially penal more severe statute, with its and not to consequences, to true situations apply essentially it to crimes which are robbery, rape or assault and in which some asportation confinement or a subsidiary occurs as incident”).

Soon thereafter, Supreme California, Court of People Daniels, Cal. 2d 459 P.2d Cal. Rptr. a case a (1969), involving series of robberies and sexual assaults in which the had victims been forced to move short distances the moments immedi- ately preceding commission of those crimes; see id., 1123-25; the approach followed New York in Levy. Id., 1134-36. Appeals Court of time, At the kidnapping was defined the California Penal Code forcibly steals, “the act of one who takes, or arrests any person state, and carries him into another th[e] country, state, county, or into part another of the county.” (Internal quotation same marks Id., omitted.) 1126. The court overruled earlier, its literal interpreta- tion of the provision in kidnapping light of the contem- poraneous “current of common sense in the con- application struction and of [kidnapping] statutes”; id., 1127; and concluded that the apply statute did not the defendants in that case because their movement of the victims was minimal and incidental to crimes, other is, that those movements compelled solely were to facil- itate the commission sexual assaults and robber- Id., 1130-31, ies. 1134, 1140. The court support found its holdings Levy conclusion in Lombardi, and despite differences in the of New wording York’s kid- statutes, napping because the reasoning New Appeals York persuasive Court of was representa- tive of the more modem enlightened, approach.27 Id., 1134-37. kidnapping The dissent identifies several differences between this state’s statutes, kidnapping statutes and New York’s and then asserts that those against any interpreting differences counsel reliance New on York case law statutory explain, why

the New however, York The scheme. dissent fails to persuasive those diminish differences force of those New York cases. drafted statutes were This current state’s part and as backdrop, foregoing historical against criminal code revision of the comprehensive aof by Although in 1969. approved legislature was of the code the revision surrounding debate legislative statutes, published not focus did the criminal commentary by the commission to revise reasoning on the light sheds (commission) statutes statu- were made to those changes underlying that the provisions. commentary That indicates tory statutory scheme intended to create new commission varying of unlawful restrictions recognized degrees between liberty drawing distinction on victim’s alone, comprises the “restraint,” which, standing restraint, “abduction,” an which of unlawful crime comprises kidnapping. goal the crime of statute, “put which all the improve then-existing on the liberty the one degrees of restriction of under varying to umbrella of Commission Revise kidnapping”; Penal Code Comments Statutes, Criminal Connecticut p. 31, in Stat. 53a-91, reprinted 28A Conn. Gen. (1971) § p. 423; Ann. with the atten- (West 2007) along 53a-91 § penalties. harsh dant note, finally,

We that when the revised crimi- drafting compara- drew from code, generally nal the commission provisions ble of New York’s Revised Penal Law and the Model Penal Commission to Revise the Criminal Code. p. 1, reprinted in 28 Conn. Gen. Statutes, supra, 53a, tit. Overall, p. Stat. Ann. tit. 53a 289. the com- (West 2007) a mission to create code that met certain stan- sought rational, coherent, it cohesive and dards: “that modem knowledge that it take into account intelligible; experi- information; that be based on reason and and it ence; it informed enlightened and that reflect an and Statutes, Revise the Criminal outlook.” Commission to Proposed p. Penal 7. (1969) Connecticut Code

Upon examination of common law of kidnapping, history promul- circumstances surrounding our current gation policy statutes and the objectives animating statutes, those we now conclude Our legislature, a following: replacing single, broadly worded a kidnapping provision with gradated scheme that distinguishes kidnappings from unlawful by presence prevent restraints of an intent a to liberation, scope victim’s intended to exclude from the of the more serious crime of kidnapping and its accom- penalties severe those or panying confinements move- ments merely victim that are incidental to and necessary for the commission of another crime against that Stated otherwise, victim. commit a kidnapping conjunction with another crime, defendant must prevent intend to the victim’s a longer liberation for period or greater of time to a than which degree necessary to commit the other crime.28 statutory underlying The dissent asserts that the definitions unlawful kidnapping clearly unambiguously distinguish restraint and the former general specific crime, and, as a as a intent crime and the latter as consequence, history surrounding an examination and circumstances provisions inappropriate. the enactment of these The dissent reaches the by general reading conclusion that unlawful is a restraint intent crime “intentionally” applying only term § General Statutes 53a-91 prohibits designed person’s element of the offense that conduct “to restrict a by moving confining movements ... him ... . . him . .” Under 53a-5,however, defining General Statutes when a statute a criminal offense “intentionally” specify requisite state, uses a term such as mental presumed apply every term “is element unless an intent offense application clearly appears.” (Emphasis added.) Applying to limit its (1), “intentionally” § § directive of 53a-5 to 53a-91 we conclude that also applies requires to the element the offense of unlawful restraint that a particular result, namely, substantially that the restriction must “interfere person’s] liberty (Emphasis added.) with . . . .” General 53a- [a § Statutes (1). correctly observes, 91 As the dissent the elements of a crime “]w]hen act, include a defendant’s intent to achieve some result additional to the language distinguishes general the additional crime the from those of intent specific requiring quotation (Internal and it makes one intent.” marks omitted.) Because an unlawful restraint involves the restriction of another person’s substantially with intent movements the to interfere with that person’s liberty, restraint, kidnapping, specific the crime of unlawful like is a intent crime. interpretation by First, This is buttressed several other considerations. restraint, prohibited be an to unlawful the restriction movement must be

543 an exclusion to such previously recognize Our failure between restraints eliminated the distinction has largely statutory effectively the merged and has and abductions closely provision the it now resembles scheme such that Unfortunately, replace. to intended that the scheme was virtually prosecutors has afforded interpretation that interpreta- accomplished dissent’s the victim’s consent. Under the without requirement applies pursuant (1) the mens rea §of to which tion 53a-91 person may only prohibited conduct, the crime of be convicted of to the knowing consensual. the restriction not unlawful restraint without that why legislature have intended such result. We see no reason the would broadly Second, “[cjriminal are to read more than their statutes ordinarily language plainly requires ambiguities in to be resolved are contrary interpretation . . would frus- of the defendant. . favor [U]nless intent, governed by legislative are the an criminal statutes trate evident strictly against principle are construed the fundamental that such statutes Velasco, quotation omitted.) (Citation omitted; v. internal marks State state.” Skakel, 210, supra, (2000); v. also State 276 253 Conn. 751 A.2d 800 see persons assuring (“[s]trict is fairness to 675 construction a means of Conn. unequivocal subject penal give requiring law to clear and to the statutes understand, concerning warning language people generally would that penalties expose liability the them to and what actions that would penalties quotation omitted]). Although we would be” marks believe [internal applying (1) § § that 53a-5 to 53a-91 makes it clear that unlawful restraint specific crime, applicable to criminal is a intent the rule strict construction any ambiguity against arguable indicates should be resolved statutes that reading the the broad of 53a-91 that dissent advocates. Finally, the also is inconsistent with this court’s dissent’s conclusion analysis 520, 538-40, Foster, A.2d 277 In in State v. 202 Conn. 522 Foster, defendant, Foster, portion challenged trial Michael jury defining purposes of § court’s instruction the term “restrain” for 53a- claiming inadequately explained (1), “the that the state must 91 court prove objective had have conscious interfere substan [Foster] tially because, liberty” according Foster, language with the victim’s “permitted guilty that the used had find even if the [Foster] court nothing by-product interference was more than an unintended of [Foster’s] Id., rejecting argument (Emphasis added.) Foster’s intentional acts.” 539. satisfy requirement charge that the court’s did not that a defendant specific prohibited result, impliedly with we act intent effect only if, acknowledged if, that a restraint unlawful a defendant’s objective moving confining conscious victim to achieve result, prohibited namely, to restrict the victim’s movements such a substantially liberty. id., 539-40; his See manner as to interfere or her see App. 348, 363, Youngs, (characterizing also State 97 Conn. 904 A.2d specific crime), denied, unlawful restraint as cert. Conn. Le, 339, 343, (2006); App. 552 A.2d A.2d 959 Phu Dinh Davis, App. 667, 672, (1989) (same); State v. 539 A.2d 150 (1988) (same). unbridled to charge discretion the same conduct either as a or as an unlawful kidnapping despite restraint significant penalties differences in the that attach to our Similarly, prior those offenses. construction of the kidnapping permitted prosecutors— statutes has it indeed, has them—to a encouraged kidnap- include any ping charge case sexual involving assault or robbery. view of the favoring trend reform law kidnapping that existed at the time that our enacted, statutes were and light of commission’s stated goal creating modem, informed and enlight- code, ened it penal likely highly legislature our reform, thereby intended embrace that reducing potential for unfairness that had been created under prior this state’s kidnapping statutes.29 Our conclusion is bolstered that, the fact in the years since Levy Daniels, and majority considerable courts state have followed the lead of York New and California in that the crime of concluding kidnapping does not include conduct involving restraint that is merely incidental to the commission of some other crime against State, Patzka v. See, the victim. e.g., 2d 520, So. (Ala. 523-24 Crim. App. 1977); Alam v. State, 345, 776 P.2d 1989); Summerlin (Alaska App. State, 296 Ark. 347, 350-51, 756 S.W.2d 908 (1988); Peo ple v. Daniels, supra, 71 People 1130-31, 1134; Cal. 2d v. Bridges, 520, 528-29, Colo. 612 P.2d 1110 (1980); holding purview 29 The dissent maintains that our “invades the of our attorneys” “appears defining respon state’s to overlook that crimes sibility legislature,” misapprehends our not this court. The dissent our Simply stated, merely reasoning. prior interpretation we have noted that our inevitably statute has led to results that we do not believe legislature anticipated when it enacted the statutes. Of course, frequently, appropriately, we take this consideration into construing See, e.g., Co., account in statutes. Ins. Gormbard Zurich (2006) (rejecting proposed 904 A.2d 198 construction of ground legislature likely statute on it that would lead to result that most intend); Bergeson London, 763, 782, did not v. New 850 A.2d 184 (2004) (same).

545 Faison Tyre State, 326, (Del. 1980); 412 A.2d 329 n.5 v. Correa, State v. State, 963, 1983); 426 2d 966 (Fla. v. So. denied, 1321, 68 644, 649, P.2d cert. App. 706 5 Haw. Cole, 104, 665 People v. 85, 172 Ill. 2d (1985); Haw. 692 587, S. 1030, 117 Ct. denied, cert. 519 U.S. 1275, N.E.2d Rich, 739, N.W.2d State v. 305 Ed. 2d 517 (1996); 136 L. Buggs, 216, 547 1981); State 203, v. 219 Kan. 745 (Iowa Commonwealth, 554 S.W.2d Spencer v. (1976); P.2d 720 1108, 1113 Estes, State v. 418 A.2d 355, (Ky. 1977); 358 112-13, 721 Stouffer, State v. 97, Md. 352 (Me. 1980); People Adams, 222, 238, v. 389 Mich. (1998); A.2d 207 Smith, 19, N.W.2d State v. 669 (1973); 205 415 N.W.2d 1236, 2d 1238 State, Cuevas v. 338 So. 2003); (Minn. 32 Shelton, 200, State v. 78 (Mo. S.W.3d 204 1976); (Miss. Wright State, 415, 417-18, 581 v. 94 Nev. App. 2002); Masino, 436, 447, 466 State v. 94 N.J. (1978); P.2d 442 People Levy, supra, 164; 15 N.Y.2d v. (1983); A.2d 955 Fulcher, S.E.2d 338 State v. 503, 523, 243 (1978); 294 N.C. Logan, 135, 2d 397 N.E.2d 1345 State 126, v. 60 Ohio St. Garcia, ; State v. 413, 423, Or. 605 P.2d 671 288 (1979) Hughes, 118, ; Commonwealth Super. v. 264 Pa. Innis, State 646, v. 433 A.2d 125, 399 A.2d 694 (1979); 930, S. denied, U.S. 102 Ct. 1981), 655 cert. 456 (R.I. Cloud, State v. St. 72 L. Ed. 2d 447 465 1980, (1982); Anthony, State v. 817 N.W.2d 181 177, (S.D. 1991); Goodhue, 175 State 299, v. Vt. (Tenn. 1991); S.W.2d 306 Brown Common v. 457, 833 A.2d 861 465-66, (2003); State wealth, 310, 314, 230 Va. S.E.2d 711 (1985); 337 Miller, W. 910 616, 621, (1985).30 v. 175 Va. 336 S.E.2d statutory varying language these cases involve Although State, P.2d See, 357, 366-67, 585, 592, confinement 75 S.W.3d (1988); ^[30] A e.g., 211 Ga. minority State (1987); 254 N.W.2d N.E.2d 817 App. Motsko, 447-48 v. a victim is sufficient v. State Padilla, jurisdictions 605, 608, (Tex. 261 N.W.2d 860, (1970); Maeder, 106 Ariz. ^[440] Crim. adhere to the view that State v. S.E.2d App. 229 Neb. 568, 572-73, 230, to support ^[235] 865-67 Smith, 2002); 232, (1994); 474 P.2d 821 Harris (N.D. 1977); 228 Mont. Wilson any State, v. 428 N.W.2d 180 (1970); Hines State, movement or 263-64, conviction. 78 Wis. 2d v. 253 Ind. Ellis State, v. analyses, they share theme, namely, a common unlikely

it expose that the intended legislature an conviction, accused to a and the severe accompanying conviction, sanctions such when the merely restraint involved incidental to the commis a separate, sion of crime. underlying Indeed, major ity view regarding construction of statutes crime delineating kidnapping has rightly been as the “modem” approach; State v. characterized DeJesus, 91 App. 47, 87, Conn. 880 A.2d 910 (2005), cert. Conn. granted, 279 903 A.2d 658 (2006); see Goodhue, State v. supra, 462-63; the salutary effect of to prevent prosecution which is of a defendant “on kidnapping charge expose order to him to the penalty thereby heavier made available, [when] period of brief, abduction was the criminal enterprise entirety in its appeared as no more than an offense robbery rape, or genuine there was lacking People v. ‘kidnapping’ flavor . . . .” (Citation omitted.) Cassidy, 40 763, 765-66, N.Y.2d 358 N.E.2d 390 N.Y.S.2d 45 (1976).

Our not holding represent complete does refutation principles prior established our kidnapping jurisprudence. First, in order to establish a kidnapping, required is any state to establish minimum period of confinement or degree movement.31 When or merely confinement movement incidental the commission crime, however, of another the confine- ment or movement must have exceeded that which was necessary to commit the other crime. guiding “[T]he principle whether or [confinement movement] part was so much the of another substantive crime that the substantive crime could not have been committed without such . . . .” (Internal quotation acts marks reiterate, however, involving We convictions miniscule subject challenge vagueness restraints remain under the doctrine. See opinion. footnote 510, 528, 782 Niemeyer, State omitted.) In other J., concurring). C. (McDonald, A.2d con- whether ... to determine words, “the test [the] kid- such that or involved finements movements [were] when an prosecuted may charged also be napping occurred asks kidnapping has separate from offense movement, or detention confinement, whether the or accompanying felony merely incidental itself, in and of enough, significant it was whether Goodhue, prosecution.”32 independent warrant Vt. 464. supra, 175 convicted of both may be

Conversely, a defendant any if, substantive crime at and another of that commission prior or after the to, during time way crime, is moved confined other the victim is, significance, criminal independent that has that which exceeding to an extent victim was restrained complete the other necessary accomplish or was of the crime.33 the movement or confinement Whether necessary for another merely incidental to and victim is facts and circum- particular will the depend crime Consequently, when the evidence stances of each case. the restraint was not reasonably finding that supports other, merely the commission of some incidental 32 interpretation of the statutes The dissent asserts that our jury “[attempt] by represents means which a must determine an to devise a restraining the ‘incidental’ the commission of whether the act of making assertion, suggests we . . . .” In the this dissent other crime doing approach adopted opinion. in this the that we have have invented majority so, ignores of of substantial the fact that the courts the dissent Indeed, jurisdictions adopted interpretative approach. previously have which, weight holding, gives as we all to the fact that our the dissent no at indicated, representing aptly has the modem have been characterized majority approach, that have considered the view of the of courts reflects the issue. by legislature is borne out The fact that the intended result degree (a) language (2), first which defines of 53a-92 coupled engage unlawful an intent to in certain other as an abduction opinion. conduct. See footnote of this

separate crime, the ultimate factual determination must by jury. be made purposes For making deter- mination, should be instructed consider the factors, various relevant including the nature and dura- tion victim’s movement or by confinement defendant, whether that movement or confinement during separate occurred the commission of the of- fense, whether the restraint was inherent in the nature separate offense, prevented whether the restraint the victim from summoning assistance, whether restraint reduced the defendant’s risk detection and whether the restraint created or significant danger independent increased the victim’s risk of harm of that separate e.g., Virgin Islands posed See, offense. v. Berry, 604 F.2d Cir. 1979); Mendoza (3d 221, State, 122 Nev. (2006); State 130 P.3d LaFrance, 117 N.J. 583, 588, 569 A.2d 1308 (1990); v. Goodhue, supra, 175 Vt. 463-64.

Second, we do not retreat from general principle may that an accused be with and charged convicted more than one crime out arising of the same act acts, as all long as elements of each crime are proven. Indeed, because the confinement or movement simultaneously of victim that occurs with or incidental to the ordinarily commission another crime will con- stitute a substantial interference with that victim’s lib- erty, may prosecuted such restraints still under the many unlawful restraint Undoubtedly, statutes. crimes involving already prosecuted restraints are under those provisions. relatively our Moreover, holding is narrow directly only and affects those cases in the which state cannot establish that the restraint indepen- involved had predicate dent significance kidnap- the conduct for a We ping. anticipate therefore do not holding that our major will prosecutorial force a shift in decision making.

Finally, present case, the defendant claims that he is entitled to a judgment acquittal of on the count. that, The defendant contends in light juror reasonably trial, at no adduced the evidence of imposed on the victim the restraint conclude that could connection used in incidental to the restraint was not disagree. We the victim. with the assault of came that the defendant The evidence established and, her while she was to from behind up the victim staircase, by the back up her grabbed a walking and the defendant floor, The victim fell to neck. to free from the She herself struggled held her there. him to let her go. and screamed for grasp defendant’s down, however, to hold her continued The defendant to persisted screaming fighting and and, when she in the mouth herself, punched he her once extricate his down throat. attempted fingers thrust her victim, defendant forced her According to the before for at least five minutes ground remain away. she was able get juror reasonably could facts, of these

On the basis victim was not defendant’s restraint of the find that the of the victim. The victim merely incidental to his assault forcibly defendant, her, after accosting testified that the Although down for five minutes or more. held her punched the victim once and shoved his fin- very mouth, conduct was brief into her gers duration of the defendant’s contrast the extended evidence, victim. In more- light restraint over, juror reasonably could find that the defendant primarily purpose for the pulled ground the victim to put that he struck her and his restraining her, in her mouth in an effort to subdue her and fingers screaming help so that she could prevent her from say circumstances, In we escape.34 not such cannot why acknowledge We it is clear from the the defendant evidence Nevertheless, victim. on the evidence accosted and restrained the basis juror reasonably presented, restraint could conclude that defendant’s words, his the victim was not incidental to assault of the victim. other juror reasonably significance independent find that the restraint had could case, therefore, readily distinguishable are of the assault. The facts of this imposed facts other cases in which the restraint on the victim from the necessarily defendant’s restraint of the victim was

incidental to his assault of the victim. Whether the defendant’s conduct constituted a kidnapping, there- a fore, question factual prop- determination erly jury. reasons, instructed For the we foregoing conclude that the entitled to a new trial on the in the charge kidnapping degree. of second Fur- thermore, if that, must instructed it finds of merely that the defendant’s restraint the victim was to incidental the defendant’s commission of another against victim, is, assault, crime then it must find guilty the defendant not of the crime of kid- napping.35 merely underlying example, was incidental to an v. crime. For in State Sanseverino, 608, 949 (2008), A.2d 1156 a case that we also decide today, defendant, Sanseverino, bakery, Paolino the owner of a followed victims, G, employee, bakery, one of his his into back of room the where Id., G, gone apron. had an she retrieve 615. While alone with Sanseverino G, pushed grabbed against sexually her the wall and Id. assaulted her. go, Sanseverino then G she let went into bathroom and did not come person bakery. until out she heard another enter the Id. G her then finished jury trial, shift and went home. Id. After a Sanseverino was convicted of degree degree. Id., in the first sexual assault the first application Upon adopt present case, 616-17. of the rule that we in the we concluded that there was no evidence that Sanseverino had restrained G any any degree period greater necessary or for of time than Id., that, commit the sexual assault. 625. We therefore concluded because juror imposed no reasonable could that the find restraint Sanseverino had G, against G not incidental to on was the commission the sexual assault ajudgment acquittal kidnapping charge. Sanseverino was entitled to on id., present case, by say contrast, See 625-26. In the we cannot that the requires evidence the conclusion that the defendant restrained the victim solely juror purpose assaulting indeed, reasonably her; for the could merely engaged find that the assaultive conduct which the defendant was incidental to his restraint of the victim. previously, ultimately As we noted the defendant was not tried for assault. We nevertheless conclude that a defendant is entitled to an instruc imposed tion that he cannot be if convicted the restraint merely assault, regardless the victim incidental to the whether try assault, reasonably state elects to the defendant for because the facts Alam, support See, State, e.g., supra, would an v. assault conviction. (concluding uncharged P.2d 350 at restraint issue was incidental attempted assault); People Rappuhn, App. sexual 78 Mich. (1977) (court improperly give N.W.2d90 failed incidental instruction gross People uncharged indecency); Jackson,

reference to offense

II he is the defendant’s claim that We next address of unlawful a new trial on the charges entitled to a child injury of to degree in the first risk restraint deputy improper to conduct allegedly due attorney attorney) during (state’s state’s assistant the defendant contends Specifically, trial. suggested to attorney improperly (1)

state’s the victim attempted had assault that the defendant any such the lack of evidence sexually, despite coun- attempted assault, defense (2) denigrated sexual mislead attempted that counsel had sel and asserted excessively during leading questions used jury, (3) wit- of several of the state’s his direct examination witness, nesses, the sole defense cross-examined (4) during closing to facts not in evidence (5) referred of the chal- Although we that some agree argument. collec- that, we conclude improper, conduct lenged process of a due tively, it did not rise the level requiring a new trial. violation we prosecutorial impropriety, “In claims of analyzing step . . . we process. First, in a two must deter- engage any occurred; second, impropriety mine whether in fact impropriety, whether or the we must examine deprived multiple improprieties, effect of cumulative fair trial. process right the defendant of his due deprived ... To whether the determine defendant was process trial, of his to a fair we must determine right due 1032, 1032, (1978) (concluding App. Div. 2d 406 N.Y.S.2d 345 detention complainant uncharged rape). was incidental to commission of crime Robbins, App. 429, 433, People 131 Mich. N.W.2d 333 But cf. any crime, (when unnecessary). no evidence of other incidental instruction give deprive the To conclude otherwise would the state carte blanche to merely by declining charge defendant the benefit of such an instruction crime, which, present case, underlying generally as in will him with the cany possible penalty less maximum than the far serious charge. whether the sum total of prosecutor’s] improprie- [the ties rendered fundamentally the defendant’s [trial] unfair, right process. violation his to due . . . The question prejudiced whether the has been by prosecutorial [impropriety], therefore, depends on whether there is reasonable jury’s likelihood that the verdict would have been different absent the sum total improprieties.” omitted; the (Citations quota- internal tion omitted.) Bell, supra, marks 283 Conn. 760. With these mind, standards in we turn to the merits of the defendant’s claims.

A The defendant first attorney claims that the state’s prejudiced unfairly jury the him against by encouraging speculate to that the case attempted involved an assault, sexual a crime with which the defendant was not charged. agree, part, We with the defendant. procedural history additional following is rele- vant our review of this contention. When the defen- dant arraigned, first was he charged was with multiple but offenses no sexual Approximately year offense. one day later, jury selection, on first the state’s attor- ney an filed amended information charging defen- dant, time, for first with kidnapping attempted sexual assault in the degree. third The new information jury pool read to the during days each of the two of jury selection that day followed. On the before the evidentiary portion of trial commenced, the defen- dant filed a motion to dismiss the two new charges, claiming there was no factual for basis them. Prior on argument motion, the defendant’s the state’s attor- ney filed substitute information that did not contain the charge attempted sexual assault in the third any degree other sexual offense. During argument motion, the defendant claimed state’s attempted sexual had added the attorney originally doing so, a factual basis without charge assault inducing purpose for the solely claimed further The defendant plea bargain. accept of the count addition prejudiced had that he been rejected The court assault. attempted sexual alleging had the defendant claim, stating that the defendant’s charge assault because the sexual prejudice no suffered dropped. had been the victim as a attorney called trial,

At the state’s examination, testified in detail On she witness. direct evening on the at the train station the events testimony events, about those attacked. In her she was and the defendant explained that, as she victim just free, she broke steps, were on the before struggling she was had started rise. The wearing the skirt that she had on attorney the victim what state’s asked replied the victim evening, beneath her skirt that and pair of shorts and under- that she had been a wearing attorney then asked victim: clothing. The state’s any your “Did ever under- get into [the defendant] objected question to the Defense counsel clothing?” a and, excused, was moved for mistrial. after the that, there was no argued Defense counsel because had or had evidence that sexual assault occurred improperly line was attempted, questioning been faith and and demonstrated bad suggestive prejudicial, attorney part attorney. on the of the state’s state’s merely he his responded trying was narrow case not by establishing that the defendant had intended sexually rather, that he had but, to assault the victim physical injury on her. The court intended inflict attorney unnecessary that it was instructed state’s disprove had intended for the state to that the defendant motion for to commit a sexual assault but denied the however, give agreed, a mistrial. The trial court and, curative instruction following the victim’s testi- mony, did so.36

Finally, during closing argument, attorney the state’s alluded to the defendant’s alleged intentions on the night question. of the incident in In particular, the state’s attorney made the statements following during his argument: course of “You closing all know he what wanted do. know You all what he tried to do and you all know he accomplished what . . night. . yourself, Ask thirty-two what was this year old, unem- ployed train male at the at station about to 10:30 [10 p.m.] he doing? When saw that girl walking into area, you secluded all know he do, what wanted to tried to do . and what he did. . . knew the [The defendant] severity his child, actions he what wanted to do accomplish.” objected Defense counsel to these and, statements for a again, moved mistrial. The trial court overruled defense counsel’s objections de- nied the motion for mistrial, that the explaining state’s attorney’s remarks were a reference to the defendant’s alleged intent to restrain victim, and abduct the sexually. assault her Finally, during argu- his rebuttal ment, attorney the state’s reiterated: “You know what do, wanted to he do tried to and what [the defendant] accomplished? he The abduction was accomplished because he held her down . .” with force . .

The defendant contends that the conduct foregoing attorney improper state’s because it was to designed jury by inflame the injecting sexual offense into the case. court has recognized “[T]his prosecutor may numerous occasions that not appeal [a] to emotions, the passions prejudices jurors. and of the . . . appeals they should be avoided because [S]uch 36 jury The trial court instructed the the that information that the state’s attorney allege assault, you filed “does not sexual so I want to be aware charge information, of that. is no sexual There assault . . . and it’s upon here, you incumbent me to so advise thus I . .” have advised . . from [jurors’] attention effect of diverting have the . . . on the evidence. duty to decide the case their emotions, he invites appeals to prosecutor When not to a rational case, according jury decide powerful but on the basis of appraisal evidence, likely which are to skew and irrelevant factors State quotation omitted.) marks appraisal.” (Internal Bell, supra, 773. attorney’s amend- pretrial to the state’s respect

With information and his statements original ments to the persuaded we are not that the argument, during closing commences, trial improper. conduct was Before a authority charges, prosecutor has broad add delete by unduly not provided prejudiced the defendant 36-17; also actions. Practice Book see those Tanzella, A.2d Nev- ertheless, prosecutor should not bring charges by See, American unsupported e.g., are the evidence. Association, Bar Criminal Prose- Standards for Justice: 1993) cution Function and Defense Function Ed. (3d (f), p. standard 3-3.9 Standards Criminal (ABA present case, In the the victim’s statement Justice). up police indicated that her skirt had been hiked that, her encounter with at during time, rape believed that he her. she intended Accordingly, we cannot conclude that the state’s attor- ney attempted good lacked a faith basis for adding even he withdrew it. charge though sexual assault later to the state’s respect With statements made attorney we will not during closing second- argument, the determination of the trial court that those guess attempted to the statements did allude withdrawn charge. sexual assault Because defendant was both charged restraint, and unlawful specific crimes, it was reasonable for the court attorney conclude, represented, the state’s the comments were intended to for the highlight adduced evidence the state an intent establishing to attorney’s restrain and abduct the victim. The state’s use of the same his rebuttal fol- language argument, immediately lowed by alleged reference to the abduc- tion, supports interpretation that of those remarks. attorney’s question

The state’s to the victim toas whether the defendant had tried to into her under- get however, improper. was “A clothing, prosecutor should not ask a question implies which the existence of predicate factual a good which faith belief is lack- ABA ing.” Justice, Standards for Criminal supra, stan- dard p. 3-5.7 103. “It is an . . (d), improper tactic for . the prosecutor ... attempt im- communicate . . pressions by questioner innuendo . when the has to support no evidence Id., innuendo.” standard 3- 5.7, commentary, p. 106; Gershman, see also B. Prosecu- torial (2dEd. 2007) p. Misconduct 10:20, (“[cjourts consistently have prosecutors’ condemned attempts to impression jury by create an ques- innuendos in tions By when no evidence supporting exists”). the time testified, victim attorney state’s had withdrawn the attempted necessarily sexual assault he charge, and was aware inadequate evidence was to support a conviction for that offense. Indeed, explanation attorney the state’s proffered confirms as much. Finally, if we explanation even credit the that the state’s attorney gave question, for the that explanation is inade- quate justify the challenged argument because, the trial observed, court the state did not have burden proving the defendant trying sexually. assault the victim We agree therefore with the improper attorney defendant that it was for the state’s to ask the victim whether defendant had attempted . . “get into . underclothing.” [her] attorney defendant next claims that the state’s repeatedly denigrated defense counsel and improperly

557 to seeking was mislead that defense counsel asserted with this claim.37 jury. disagree the We dur- defendant, attorney, to the the state’s According about, and facial trial, remarks ing derogatory made challenged defense counsel.38 The expressions toward, transcript, in the remarks, however, were not recorded response to defense counsel’s court, and the trial not them. With indicated that he had heard complaints, the record reveals respect expressions, to the facial for their that the trial court admonished both counsel but indicated that subsequently courtroom behavior39 light been In appropriate.40 their conduct had generally alia, claim, to, support the refers inter several of this attorney that, duringjury according state’s made selection comments concedes, defendant, The defendant to the were derisive defense counsel. however, that, exception, challenged all were one minor comments with presence jurors ultimately were excused. Because there made in the who right possibility to a fair is no that those remarks affected the defendant’s trial, need address them. we attorney Specifically, refers to a comment that the state’s the defendant persons allegedly during courtroom audience made trial to one or more According request following that the be excused. defense counsel’s attorney said, bullshit, defendant, just typical relax.” state’s “[I]t’s attorney words, “Oh The defendant also claims that state’s muttered God,” sought permission when defense to recall under his breath counsel a witness. say just going I this one more time. don’t want The court stated: “I’m any any everybody going I more faces. I don’t want more nonsense on. want rulings professional here. When I make to conduct themselves in a manner people questions questions, faces, no and I allow to ask or not ask more by everybody Is in this no more nonsense. that understood courtroom?” responded Both counsel in the affirmative. The court continued: “Because my any rul[ings] I what I or what I don’t if see more laces about allow allow, appropriate going me I I’m take the action. And trust when tell [to] you, gentlemen, you appropriate take if I don’t me to action think [want] you’re something misbehaving in a courtroom. That is I do not tolerate.” subsequently reiterated: “I have warned counsel now. If court both any there in this that I become aware of or I more antics courtroom [are] see, just ago counsel warned few moments about faces that [was] making. goes again, being regard rulings were I If that made will sanctions be issued.” day question, At the close of court on the the court observed it encouraged improper counsel had addressed the claims of conduct agree we with the foregoing, state that the record support does not claim prosecutorial the defendant’s impropriety predicated attorney’s on the state’s alleg- edly and facial disparaging expressions.41 comments portion

The defendant also takes issue with that attorney’s state’s rebuttal argument in which he used the terms “red screen” herring” “smoke characterize certain issues that defense counsel had raised during closing argument.42 his The defendant con- unfairly tends that these comments impugned defense counsel, thereby prejudicing against the defen- reject dant. We also this claim. is a

“There distinction argument dispar between that ages the role of integrity or defense counsel and argu defense.” State theory ment that disparages Orellana, 89 App. 71, 101, Conn. 872 A.2d cert. denied, 876 A.2d 1202 Moreover, (2005). every use of improper. rhetorical language E.g., State Warholic, 278 354, 363, A.2d “red herring” part A is defined in relevant as “a quite move forward. The court stated: “To be candid outside the unusual you’ve today, professional job, gentle- here circumstance I think done both attorney] state, obligation people men. You state’s have an to the of this [the you’re your you putting on case as see fit. has an [Defense counsel] obligation objections making defendant. He’s his where he deems appropriate. you by rulings, and, finally Both have abided when I have [of] you’ve myself clear, accepted rulings made those and moved on. There’s nothing .” else said . . . [that] need[s] [to] 41We, course, conduct, by prosecutors any do not condone such or attorneys, acknowledge that, depending severity, other and we on its conduct alleged by trial, disciplinary of the sort the defendant could result a new attorney present case, against however, sanctions or both. In the support against allegations record is insufficient to the defendant’s attorney. state’s attorney’s comments, The defendant also refers certain of the state’s response argument concerning made in to defense counsel’s charge, only charge. Although that relate that we do not believe that improper, light those comments were we need not address them in of our conclusion that the defendant entitled to new trial count. from the real distract attention intended to

diversion International Dic- .” Third New . . . Webster’s issue portion of the challenged tionary. Our review it refers to sev- reveals that attorney’s argument state’s reasonably defense counsel points eral made or inconclusive may peripheral, be characterized Thus, herring” use of the term “red unimportant. screen” is the term “smoke Although was not unfair. connot- may it be viewed as more because problematic id. “smoke deceive; see (defining an intent ing obscure, confuse, designed as “something screen” say term, cannot use mislead”); we isolated, impropriety. to the level of an which was rises the state’s attor- defendant further contends that questions. In ney leading the excessive use of engaged claim, points to numerous support of his attorney posed leading in which the state’s instances Gary the victim’s mother and questions victim, to the security who was to the Stam- Albert, guard assigned a night ford on the the victim was accosted train station reject impropriety. there. We also this claim questions inappropriate are Leading generally witness, of a direct or redirect examination although has to allow them in certain circum- court discretion (b). § stances. See Conn. Code Evid. 6-8 Under 6-8 § Evidence, of the Connecticut Code of the court (b) (3) may questions they “necessary when are permit leading testimony . . . .” The commen- develop to witness’ tary 6-8 Connecticut Code accompanying (b) (3) § explains that, exception, of Evidence under that “may put ques- to calling party leading court allow apprehensive tions witness who is reti- young to who communicating, cent” or “to a witness has trouble deficiency by disability or language virtue either . . . Conn. Code Evid. 6-8 (Citation omitted.) (b), .” commentary.

The victim and each Albert fall into one of these exceptions prohibition to the against questions. leading The record reveals that the victim, who was sixteen years old trial, at the time of was spoke nervous and very softly testifying. uneasy when Her and reticent demeanor prompted repeat- the court to reassure her edly that nothing there was to be nervous about and she speak should relax and louder. In permitting attorney questions state’s to use leading in his exam- ination of victim, explained the court that it was “obligated take into consideration the age of the witness, the demeanor witness and her current physical and emotional condition in leeway ” terms of the I attorney that have allowed the . . state’s . . As Albert, the record reveals that his native lan- guage French and that he had difficulty substantial testifying English. The court therefore agreed allow the attorney state’s of leeway measure in his questioning Albert, stating: “I had no idea [the court] what So the saying. must not have [Albert] any idea he’s what The trial court saying.” acted well within its discretion in attorney the state’s permitting put questions to the leading victim to Albert.

Our review of the ques- record indicates that certain posed attorney tions state’s to the victim’s mother were each leading. instance, such however, the trial court sustained defense objection counsel’s lead- ing question, and, result, any as a answer that the vic- given tim’s mother had to these questions was stricken. provided defendant has reason, no and we are none, why aware of questions the themselves were so prejudicial or harmful as to trial render the unfair. Con- sequently, the claim fail. defendant’s must

The defendant’s next claim is that the state’s attor- ney’s witness, cross-examination of the sole defense ques- his improper because Dahlgren, was Deborah The repetitive. defen- unduly was sarcastic and tioning attorney’s the state’s conduct contends that dant further the prejudice intended Dahlgren was vis-á-vis attorney’s convey belief and to the state’s against her call, a close Although untruthful. that was Dahlgren attorney’s cross- portions of the state’s we that agree improper. were Dahlgren examination history is neces- procedural following additional trial, At of the defendant’s claim. sary to our evaluation was intoxi- to establish that he sought the defendant and, therefore, that he attacked the victim cated when necessary specific he not have formed the could or the crime either the crime commit support of his claim of intoxica- restraint. unlawful presented testimony of Dahl- tion, the defendant acquaintance who knew the defendant a casual gren, frequented swimming had same the two because and Dahlgren had been identified pool and health club. with the assistance of defen- defense, located and mother, testified, before she evening dant’s day her was as a witness until the she not disclosed testimony. witness. To some she a reluctant degree, in testified, essence, she had seen Dahlgren pool evening question at the on the defendant highly that he was intoxicated. She further testified in that condition observing she recalled defendant holi- question on the because there had been a night day party pool evening, at the because her for repeatedly cigarettes. had asked propriety of the state’s challenges The defendant attorney’s during use of sarcasm his cross-examination examples The defendant refers to several Dahlgren. attorney’s use of the device: state’s the state’s attorney Dahlgren whether she was “certified asked . her eye follow-up . . tests” as a giving roadside testimony that she believed that the defendant had been that evening on, alia,

intoxicated based inter how his eyes appeared; he referred to (2) Dahlgren’s memory the defendant’s demeanor that evening “miraculous”; commented, response he to Dahlgren’s testi- mony that she did not remember when she met first the defendant, “That’s what I The thought.” attorney’s further repeated maintains that the state’s questioning of as to how Dahlgren possibly she could have remembered that the defendant at pool that evening43and whether she had been coached about following exchange defendant directs us between the state’s attorney Dahlgren: person year—over year ago asking “Q. You can remember this from a cigarettes? for cigarette night. “A. He for a asked “Q. He did? “A. All the time. you specifically? night “Q. can And remember that “A. Yeah. you “Q. Where did write it down? “A. I don’t need to write it down. “Q. You don’t need to? “A. Uh-huh .... journal? “Q. You didn’t write it in a “A. No. pilot?

“Q. Palm “A. No. “Q. Calendar? “A. No. specifically “Q. You can remember a— remember, yes, “A. I I remember. specifically “Q. You can remember— totally— “A. I remember that my question? “Q. Can I finish “A. Sure. specifically person pool party you “Q. asking You can remember a at a cigarette ago? for a fourteen months Yes, always cigarettes. “A. because he asked me for * * * many you people cigarettes? “Q. And how asked “A. him. Just you people? specifically “Q.Just him out of 200 And could remember that? anymore. people “A.A lot of I don’t smoke don’t even smoke that much. you cigarette? “Q. And what time did ask he for this night taking “A. All he was them. convey jury that to testimony44 was to designed

her not believe Dahl- attorney personally did state’s testimony. the defendant contends Finally, gren’s Dahlgren ask attorney improper was state’s it plan- he her “that the defendant had told was whether because [somejbody night” and rob ning go out basis to ask attorney lacked a faith good state’s question.45 attorney’s state’s The defendant contends that the his improper because questioning Dahlgren Really? “Q. “A. Yes. your you go get pack? ever tell Mm to own “Q. Did I “A. did. many cigarettes he for? “Q. And how did ask table, eight, I think he took “A. Seven or and then I left them on the and couple more. ago? you . . . months “Q. can remember tMs from fourteen And very annoying.” Yes, I find that “A. because following colloquy primarily on between the relies attorney Dahlgren: state’s say, obviously you right? what to “Q. And the mother told [defendant’s] Well, no. “A. Well, “Q. no? mean, you’re asking questions just winging it. I me and I’manswer- “A.I’m ing as as I best [can]. say here, you right? didn’t tell what to “Q. And the mother [defendant’s] “A. No. attorney you say? didn’t tell what “Q. And defense “A. No. your— “Q. And no one told—no one went over happened. telling you Sir, “A. what I’m honest truth. this is God’s your testimony “Q. No one went over before— “A. No. Today? “Q. “A. No. you’re Today doing “Q. first time this? “A. This is the first time. helped you your testimony today? coming in here “Q. And no one “A. No.” objection We note that the trial court sustained defense counsel’s question. testimony

intent was not to elicit from Dahlgren but, rather, to previously mock and belittle As her. we have observed, prosecutor may not seek to sway by unfair appeals see, to emotion and prejudice; e.g., v. Rizzo, 171, 255, 833 A.2d 363 (2003); and we recognized have that the excessive use sar- may casm improperly jury. influence a See id., 263-64. prosecutor’s A frequent and gratuitous use of sarcasm jurors’ can feelings of disdain, likely “[call on] message them the that sarcasm, the use of rather sen[d] than reasoned and moral as a judgment, method of permissible argument and appropriate for them to [is] prosecutor use.” Id. A should conduct his examination fairly, objectively a witness decorum, and with he should not ridicule browbeat a witness. See ABA Justice, Standards for supra, Criminal standard 3-5.7 p. 103. (a), Moreover, “prosecutor may express not directly his own opinion, or indirectly, as to the credibil- ity of the (Internal quotation witnesses.” marks omit- Warholic, State ted.) supra, 363; see also B. Gershman, supra, 11:21, p. Finally, pre- 497. we as viously noted, prosecutor permitted pose is not question implies that the existence of a factual predicate prosecutor when the knows that no such factual ba- sis exists. portions

We conclude that the foregoing of the state’s attorney’s cross-examination of when Dahlgren, consid- ered ran together, Specifi- afoul these proscriptions.46 cally, his gratuitous repeated use of sarcasm and questioning of as to Dahlgren already matters that he explored had with her thoroughly were intended to convey attorney’s to the the state’s own belief that Dahlgren was not a credible witness. Furthermore, there is no indication that the attorney state’s had a good faith belief that defendant told Dahlgren 46Indeed, attorney’s the state concedes that at least some of the state’s questions improper. were evening on the someone he to rob intended victim assaulted. attorney that the state’s claims defendant further

The clos- during not in evidence to facts improperly referred disagree. We ing argument. ques- claim. In to this facts are relevant following

The attorney asked mother, state’s the victim’s tioning incident at not discuss the victim would why her responded: mother The victim’s the train station. “[S]he me now. She right want to talk to me didn’t told she counsel incident.” Defense want to relive that did not purported testimony insofar it objected to the to discuss the unwilling the victim was explain why objection. sustained the incident, and the trial court attorney the state’s now claims testimony in his clos- to this should have referred ing argument. prosecutor, for a his course, improper

Of it been to evidence that has argument, to refer closing v. See, State Oli- e.g., stricken or ruled inadmissible. 557 A.2d 534 the 751, 763, veras, of the vic- however, on cross-examination present case, virtually same defense counsel elicited the mother, tim’s to testimony. response in defense counsel’s Specifically, had willing the victim been question as to whether was replied: victim’s mother “She get counseling, the not want to relive the inci- she did unwilling because it. She did not want go through didn’t want to dent. She testimony it.” anyone about Because to confide jury, properly was before of the victim’s mother of that attorney’s reference to the substance state’s proper. was testimony argument in closing B attorney’s the state’s that some of Having concluded now must determine improper, at was we conduct trial improprieties whether those were so harmful as deprive the defendant a fair of trial. In we doing so, apply by the factors enumerated this court Williams, 523, 540, 529 A.2d 653 (1987), which include: “the extent to [impropriety] which the invited defense . argument conduct or . . the severity of [impropriety] . . . frequency [impropriety] . . . of centrality [impropriety] to the critical . . issues the case . strength adopted curative measures . . . and the strength quotation the state’s case.” (Internal marks omitted.) Bell, supra, State 283 Conn. 781.

In addition, a defendant’s “[although object failure to improprieties does preclude review of his claims . . . object, defense counsel does not request [w]hen a curative presum- instruction move for a he mistrial, ably does not view the impropriety prejudicial alleged enough jeopardize seriously the defendant’s right a fair . . . trial. fact that defense counsel did not [T]he object to one or more incidents of [impropriety] must be considered in determining whether and to what [impropriety] extent contributed to depriving whether, a fair trial therefore, reversal is warranted.” (Citation omitted; quotation internal Id., object marks 782. The omitted.) defendant did move for mistrial following the state’s attorney’s inquiry the victim as to whether the defendant had gotten into her underclothing. Much the state’s attor- ney’s cross-examination of Dahlgren that the defendant challenges appeal, however, was subject not the contemporaneous objection. To the extent defense counsel failed objection, to raise an that fact weighs against the defendant’s claim improper that the was conduct harmful. first Williams

As to the factor, attorney’s state’s conduct that have improper we concluded was was not invited the defense. Defense counsel sought any testimony about all references and preclude then objected, he and assault, and attempted sexual attorney mistrial, sought when the state’s for a moved respect With to the state’s inquiry. that line of pursue repetitive unduly questioning and attorney’s sarcastic invited also were not improprieties those Dahlgren, by the defense.47 and third Williams fac- respect

With to the second particularly severe or improprieties were not tors, the trial, in the context of entire frequent when viewed wit- days and eleven spanned which several included G., 382, 419, See, State v. James e.g., nesses. prosecutorial claim of (2004) (in examining 844 A.2d 810 be viewed in conduct must impropriety, prosecutor’s to the trial). respect of entire With broader context attorney’s improper the victim questioning state’s attempted had “get about whether the defendant questioning that was brief and underclothing, into” her immediately and trial court sustained isolated, Further- objection inquiry. to that defense counsel’s least two other witnesses testi- more, the victim at had the victim’s belief that the defendant been fied as to had rape her, police and a statement that trying to immediately incident, from the victim after the taken evidence, into also reflected the which was admitted belief as to the defendant’s motivation victim’s attorney’s improper, the state’s regard. Finally, although unduly repetitive questioning Dahlgren sarcastic and pattern representative nor of a egregious was neither throughout similar conduct the trial. objected note, however, attorney vigorously to We that the state’s do Dahlgren witness, characterizing as a her last minute the defendant’s use of “complete “surprise” and a ambush . . . The state’s attor disclosure as ney complained Dahlgren he did not know what would be further any questions prepare testifying her. and that he had been unable to about requested attorney therefore that the court afford him latitude state’s leeway appro questioning Dahlgren, agreed court some priate under circumstances.

With respect to the measures, factor curative court, immediately following testimony, the victim’s jury instructed the that the defendant had not been with charged sexual assault. have that recognized “[W]e a prompt cautionary instruction to the regarding improper prosecutorial questions remarks or can obvi- any possible ate harm to the (Internal quo- defendant.” Id., tation marks omitted.) 420. The court’s curative instruction, therefore, militates against the defendant’s claim that he is to a pro- entitled new trial on due cess grounds.

Finally, testimony although was Dahlgren’s relevant ato central case, issue namely, defendant’s intent, the state’s case against the defendant strong. was The defendant did not contest proof the state’s that he had accosted the victim the train at station and did dispute the essential facts to that relating altercation. Rather, the attempted defendant demonstrate had he been when so intoxicated he assaulted the victim that he specific necessary lacked the to commit the crime of or of unlawful restraint. The evidence adduced, that the state however, con- strongly tradicted the defendant’s claim. For example, two Met- ropolitan Authority Transit who present officers were when the defendant apprehended shortly after the incident testified that the defendant did not appear In addition, intoxicated. an room emergency record medical documenting treatment the defendant received for a twisted ankle that he suffered run- while ning from the scene of alleged assault of the victim does not indicate that the had been intoxi- Finally, apparent cated. it was testimony from her Dahlgren particularly was not friendly or close to a fact defendant, that minimized the effect of the attorney’s state’s efforts, improper, some which were to undermine Dahlgren’s credibility.

Upon consideration of the factors, relevant we are satisfied that prosecutorial several instances of did not has identified that the defendant impropriety reject we Accordingly, his trial. implicate the fairness of process were rights claim that his due defendant’s the attorney’s conduct.48 improper the state’s violated

Ill is that the trial court defendant’s final claim The respect to the with the improperly jury instructed thereby degree, in the first offense of unlawful restraint We charge. disagree him to a new trial on that entitling inadequate.49 trial court’s instructions were that the 48 that, alternatively if we conclude that the The claims even process prosecutorial improprieties do rise to the level of a due claimed judgment violation, under we nevertheless should reverse the trial court’s may powers. supervisory previously that we invoke our “We have held our prosecutorial authority [impropriety] supervisory in cases in which inherent right implicate egregious the . . . to a fair trial is not as to defendant’s so deliberately prosecutor engages in or . . when conduct he . [but] cautioned, knows, ought know, improper. . . . We have how she only ever, appropriate generally . . . when the a sanction that [s]uch justice [prosecutor’s] is so administration of conduct oifensive to the sound effectively prevent only integrity new trial can such assaults on prosecutorial [impropri Accordingly, . . in in which of the tribunal. . cases violation, ety] will not rise to the level of a constitutional we exercise does only supervisory authority to an otherwise lawful conviction our reverse remedy necessary clearly when of a new trial is to deter the the drastic omitted; alleged prosecutorial [impropriety] (Citations inter the future.” G., quotation supra, omitted.) 268 Conn. 422-23. nal marks State James improper present egregious conduct in the case neither Because reject representative pattern misconduct, we nor of a of deliberate supervisory authority defendant’s claim. 49 trial, preserve the defendant did not this claim at he seeks to Because 233, (1989), pursuant prevail Golding, 823 under State v. A.2d prevail “a defendant can on a claim of constitutional error not to which only preserved following (1) if met: at trial all of the conditions are adequate alleged error; (2) review claim of the claim is of record is right; (3) magnitude alleging the violation of a fundamental constitutional clearly clearly deprived alleged exists constitutional violation trial; subject analysis, defendant of a fair if to harmless error alleged constitutional state has failed demonstrate harmlessness beyond Id., (Emphasis original.) violation a reasonable doubt.” 239-40. Although adequate unpre record is review of the defendant’s our claim, has served constitutional we conclude that the defendant failed a constitutional violation. demonstrate necessary The additional facts are to our following resolution the defendant’s claim. trial court com princi menced its instructions with certain general ples. portion In that its initial the court charge, part: “intent” in relevant “As by statute, defined defined person intentionally respect acts result or [a] when objective conduct the conscious is to engage such unlawful conduct.”50 Because restraint in the first is a specific crime; degree e.g., Youngs, App. 363, 1240, denied, Conn. A.2d cert. 909 A.2d 959 the trial court also (2006); jury instructed the that it must consider whether the was defendant intoxicated when the crime was commit and, ted if so, whether his intoxication him rendered specific unable form the required intent for convic tion that The offense.51 court then turned to the ele of each ments of the crimes In its charged. instructions jury trial court The instructed on intent as follows: “What I’d like you concept is to do now discuss with a or definition which is critical and your understanding analysis integral parts and elements or of some charged. of the crimes concept definition, you will, intent, “That or if is that intent. The word you what it mean do does and how determine intent? act, “Intent relates to the of mind an condition who commits his [of one] purpose doing by statute, person intentionally the act. As defined acts respect objective with result or conduct when the conscious is to [a] engage in such conduct. “Now, person’s purpose usually what a been intent has is to be deter- by by you. Nobody inference mined is able to look into mind another’s and only way specific jury ordinarily see a intent. The can determine what a person’s purpose person’s was or intent was other than from that own by testimony determining statements is what the conduct was and what surrounding And, course, that, the circumstances were the conduct. from you may purpose. only infer the intent or To draw such an inference your your purpose proper jury.” but function as members of the jury trial court instructed as follows on the the defen issue of you alleged “If dant’s intoxication: find the defendant was intoxicated at the crimes, you may determining time take that fact into consideration in incapable forming whether he was in such a state of intoxication as to be required specific necessary which is element for the commis sion of the crimes of restraint. unlawful “However, you defendant, although intoxicated, if believe was stiE capable possessing specific intent, responsibility criminal then his as if he same were not intoxicated.” court the trial degree, in the first unlawful restraint it “restraint” that of the term repeated the definition instructions on jury its provided had previously particular, the court degree. in the second discussed, means just as we explained “[rjestraint, intentionally and person’s movements to restrict substantially inter- so as to unlawfully in such a manner by her without her liberty confining fere with her consent.”52 instruc- the trial court’s

The defendant claims that definition of the because the court’s tions were flawed therefore, and, inaccu- incomplete term “intent” contention, relies support rate. In of this provides which (11), 53a-3 on General Statutes ‘intentionally’ respect a result acts person “[a] an defining a statute offense or to conduct described result or objective is to cause such when his conscious . .” added.) . . (Emphasis in such conduct engage im- the court’s The defendant further contends the instructions definition of intent rendered proper on unlawful restraint in the first The trial court instructed count, charged degree second the defendant is as follows: “Under the provides degree. regard, unlawful restraint in the first In that our Penal Code guilty degree person in when a of restraint the first he unlawful expose per person that other restrains another under circumstances which injury. physical son to a substantial risk of prove you guilty charge, to defendant of this the state must “For find the one, beyond following a that the defendant elements reasonable doubt: exposed victim; two, restrained and that the restraint victim to a physical injury. of substantial risk “Restraint, just discussed, person’s a movements as we means to restrict intentionally unlawfully substantially so interfere in such a manner liberty confining her consent. with her without her prove beyond a doubt that the defendant “The state must also reasonable exposed the victim to a restrained the victim under circumstances Physical injury impairment physical injury. substantial of means the of risk means, impairment physical physical pain. it condition or That’s what physical injury pain. A means considerable condition substantial risk physical injury. risk of prove beyond summary again, “So, the state must reasonable in once the victim that such restraint doubt that the defendant restrained exposed physical injury.” risk of victim to substantial

constitutionally deficient because it misled the believe that it could find the guilty of unlaw- ful restraint in the first degree simply proof based that he had engage conduct “intend[ed] grabbing regardless of whether or not he [the victim] intended restrain . . confine . her.” In other [and] words, the defendant claims that the court’s charge effectively eliminated the specific intent element of unlawful restraint.

The state concedes that trial court’s definition of “intent” was incomplete because the court failed to explain the term in statutory accordance with the defini- tion. Because the court’s definition of intent did not phrase contain the “to cause result,” such that definition solely focused on the concept of general intent—that is, an intent to engage certain conduct—and not on concept specific is, an intent—that intent to bring about a certain result. “When the elements a crime a description consist of of a particular act and mental specific only element not nature, issue whether the defendant proscribed intended do the act. If he intend, did so he the requisite general has intent for culpability. When the elements of a crime include a defendant’s intent to achieve some result additional to act, the additional distinguishes language the crime from those intent and general makes it one requiring specific intent.” State v. Bitting, 1, 5, Because, A.2d 240 (1971). as we explained, have unlaw- specific ful restraint is a crime, the court’s defini- tion of intent, alone, was standing pur- inaccurate for poses present case.

“When reviewing challenged jury . instruction . . [a] we must adhere to the well settled rule that [however] charge jury is to be entirety, considered in its whole, by read as a total judged its effect rather by than its component parts. individual . . . test [T]he aof court’s is charge upon not whether it is as accurate court of last resort of a opinions as the legal principles jury in to the presents the case fairly whether it but party is to either not done way injustice such long As of law. ... established rules under the [the issues adapted law, are correct instructions] jury ... we will guidance for the and sufficient . . appeals . improper. instructions as not view the [I]n question, standard involving constitutional [the is] jury possible that the reasonably it is whether [was] . . . it was rea- determining ... whether misled. by the trial jmy was misled sonably that the possible jury is not to instructions, to the charge court’s purpose discovering critically dissected for the be statement, but it consid- possible inaccuracies jury in probable rather as to its effect ered [on] . . . The to a correct verdict in case. guiding [it] instruc- is to be read as a whole and individual charge isolation from are not to be in artificial judged tions . ... applied . . The test to be charge. the overall presents whole, charge, whether the considered as injustice will result.” jury the case to the so that no quotation Heine- (Internal omitted.) marks 281, 300, mann, 282 Conn. A.2d conclude that standards, we Applying foregoing reasonably possible jury it is not that the misled because incomplete the court’s definition that, to accurately explained prove thereafter court required state was “restraint,” the element of that the defendant had restricted the victim’s establish “intentionally unlawfully such a movements substantially her liberty manner as to interfere so by confining (Emphasis her without her consent.” no explanation, there is reasonable added.) Under possibility that the could have found the defendant it found that of unlawful restraint unless first had guilty he with the intent had restricted victim’s movements substantially liberty. to interfere with her In other words, because “restraint” is itself defined in terms requirement that the specific include of a intent, and properly because the trial court jury instructed the definition, the defendant was not prejudiced by trial court’s failure to define “intent” in full compli- ance with 53a-3 We also note that the trial court, explanation in its of the defendant’s of intoxica- claim tion, referred expressly to the “specific intent” neces- sary for the commission offense unlawful restraint in the first degree. See footnote 51 opinion. Finally, dining closing arguments, both the attorney state’s and defense counsel addressed the unlawful wholly restraint in terms charge consistent requirement with its specific intent, of a a fact that further undermines the defendant’s claim that the likely was confused incomplete court’s definition conclude, of intent. We therefore, that the defendant has failed to demonstrate trial instructions, court’s when viewed the aggregate, were misleading. only is reversed judgment to the conviction the second and the degree case is remanded new trial on that count. The judgment respects. is affirmed in all other opinion In this BORDEN, NORCOTT and KATZ, Js., concurred.

BORDEN, J., I concurring. agree join with and majority I opinion. separately write and briefly to under- points. score two I

First, presents note that this case question same I my raised in Kinsey concurrence in v. Pacific Employers Co., Ins. 398, 414-19, 891 A.2d 959 (2006), regarding constitutionality, under the separation powers doctrine, of General Statutes 1-§ 2z. In present case, majority finds an ambiguity legislature’s use of two somewhat linguistically requisite intent for phrases to the different define is, respectively. That the restraint, and abduction prevent necessary an is an intent “to for abduction [a and 53a-91 liberation”; (2); § General Statutes person’s] “to necessary is the intent the intent for restraint . liberty . . .” substantially person’s] interfere [a that ambiguity It is that General Statutes 53a-91 § language the literal majority go beyond the permits its historical kidnapping statute, the and to delve into to conclude and other nontextual sources background for the did not intend that conviction legislature merely kidnapping would lie when the I would underlying Although incidental to an crime. probability two in all readily phrasings conclude that the they is—barely—plausible mean thing, the same it I am hard meanings (although could have different they say is), what that difference because pressed Felician Sisters do use somewhat different words. See Commission, Connecticut, Inc. Historic District (2008) (“use 284 Conn. 937 A.2d suggests terms . . . within same statute different awareness of complete that the acted with legislature . . . and that it intended meanings their different meanings” quotation terms to have different [internal Nonetheless, Kinsey, as in this is a omitted]). marks finding adequate slim but reed on which to base Co., supra, Ins. Kinsey Employers ambiguity. Pacific (Borden, J., again, That slim reed does concurring). however, question of the bring to mind the serious con- I stitutionality Kinsey, since, l-2z that outlined § it, by be l-2z from majority without would barred likely history and would be relying legislative compelled Id., arrive at a answer. 416. different

Second, majority I in State v. joined because in which Luurtsema, 179, 811 (2002), A.2d223 that, this court affirmed a conviction under majority in the new standard articulated present case, required would in all be likelihood reversed, separate and because I issued concurrence in that case urging challenges kidnapping convic- tions on the basis of slight degrees detention be challenges vagueness; confined to I think id., 205; why I my it incumbent on me to state have changed join mind now majority present case. Briefly stated, persuaded by majority I am opinion’s that, in insight establishing prior our kidnapping juris- fully analyzed this court prudence, never the kidnapping statute, its historical background, the anomalous jurisprudence results that our producing. light majority that analysis, of which the has produced, now that, I am convinced in enacting the kidnapping statutes, legislature every did not assault, intend that almost robbery automatically sexual assault or would ele- heavy vated to a its kidnapping, penalties attendant opportunities prosecutorial for sim- overcharging, by ply liberty virtue of a minor restraint of that was inherent in the underlying crime. Such a now result me, simply strikes “counterintuitive”; id., J., (Borden, but as anomalous concurring); and not likely consistent with the legislative intent. It is time join that we majority of that great courts have so concluded, majority as the has aptly demonstrated.

ZARELLA,J., with whom VERTEFEUILLE and SUL- Js., LIVAN, join, concurring part in dissenting I part. disagree inteipretation with the new of our kid- majority statutes that napping announces in I part of its opinion part and with its conclusion in III that specific unlawful restraint is a My crime.1 dis- majority with the agreement premised is on what I believe to be serious flaws in its construction of the plain statutory of the language scheme, its treatment principle of the decisis, usurpation stare and its agree majority’s part prosecutorial 1 I with the conclusion in II improprieties defendant, Salamon, did not entitle the Scott to a new trial. and the office legislature of both the the roles I state constitution. attorney set forth in our state’s that the majority’s conclusion however, with the agree, a new trial is entitled to defendant, Salamon, Scott albeit degree, in the second the charge I remand reason. therefore would for a different the trial and direct charge for a new trial on that case jury on the crime court to instruct my analysis Accordingly, follows. consistent with I result. concur in the

I pertaining concerns majority The identifies two it troubled kidnapping. First, the crime of with this severe potential charged to be defendants of the victim where the restraint crime situations underlying of some incidental the commission majority is unable to assault-type Second, crime.2 clearly restraint from distinguish the crime unlawful conclusion, majority’s ultimate kidnapping. and, at all however, fails to address the latter issue past this court’s addressing former, overrules the precedent clear stat- language and overlooks the specific necessary kidnap- for defining ute the concerns, majority the an- ping. To address these time, statutory and for the first that the today, nounces restraint and scheme the crimes unlawful governing ambiguity This claimed ambiguous. premised majority’s on the conclusion that the language fails, light significant of the statute in of the difference penalties crimes, in the for the two to ade- distinguish quately kidnapping. an and a between unlawful restraint category “assault-type 2 Iuse the of offenses that the crime” describe perpetrate majority requiring victim in order to views as some restraint of the thus, potential charge and, having give in the rise to underlying charge for the commission of the crime. addition to or lieu of include, to, assault, robbery example, such crimes but are not limited For and sexual assault. the

Relying ambiguity, majority this then engages an unnecessary investigation into extratextual evidence our original ascertain the intent of legislature thirty concludes than that, years, more this court misinterpreted has the crime of I kidnapping. disagree statutory with this reading scheme and conclude plain of General language Statutes 53a-91 § clearly “restrain” and “abduct” defining distinguishes Indeed, two crimes and their different elements. even if it is proper evidence, look extratextual that evidence not support majority’s position. does preliminary matter, my

As a and before explaining analysis of seq., my 53a-91 et I note agreement majority’s prior observation that our law case this area has an in-depth not included discussion of the distinctions between unlawful kidnapping, restraint and specifically, of the critical difference between men- tal required states to commit analysis these crimes. That is one, however, that, my to the best knowledge, prior required none of our cases us to I conduct. agree majority with the case warrants further textual analysis of the statutory scheme governing these crimes. Unlike the major- conclusion advocated ity, however, I clearly construction advance is sup- ported by the text of the statutes and is consistent with our correctly line of long precedent, that, identifying for a defendant to be found guilty kidnapping, necessary intent. possessed must find that he

Because I conclude that the crimes of kidnapping and unlawful require restraint the state to prove possessed separate and distinct mental brief states, statutory discussion of criminal intent in crimes law, is useful. At common it was axiomatic that required criminal acts of “the coupling evil-meaning Gabriel, State mind with the hand . . . .” evil-doing 405, 412, 473 A.2d 300 (1984); see also 1 W. Scott, LaFave A.& Substantive Criminal Law (1986) pp. state both act and encompasses conduct (criminal 8-9 this com- crime). Notwithstanding of mind that defines leg- that the recognized we have requirement, mon-law crime for which cul- statutory a may enact islature pro- [merely] “that one do the requires either pability intent, or with general one do the act act, scribed that Bitting, intent.” specific one do the act that ascertaining A.2d 240 alone to intended conduct legislature whether the liability—or intended subject to strict is, criminal—that specific intent, criminality require general also in legislature’s language have that the choice we stated what Furthermore, to determine “significant.” is Id. crime, have required particular is for we mental state that, the elements of crime consist observed “[w]hen particular act and a element description of a of mental only specific nature, issue whether act. If he did so proscribed defendant intended do requisite culpability. intend, general he has the intent When elements of a crime include a defendant’s act, to achieve some result additional to the distinguishes additional the crime from those language a specific intent and makes it one general requiring intent.” Id. clarify

To the distinction between the crimes I must as with kidnapping, begin, unlawful restraint text statutory analysis, all with the relevant stat- legislative in the context of the scheme. See utes read General l-2z. The crime unlawful restraint § Statutes felony, D degree, the first class is defined General provides person 53a-95 which (a), Statutes § “[a] he unlawful restraint in the first when guilty degree restrains another person which under circumstances expose person physi- such other a substantial risk injury.” cal crime of (Emphasis added.) felony, in the a class B is defined degree, second (a), provides 53a-94 which General Statutes “[a] person is guilty in the second degree when he another person.” abducts (Emphasis added.) Thus, solely when one looks at the text defining crimes, two the principal difference between them is plain. To understand how unlawful restraint differs necessary from it is kidnapping, distinguish a defen- dant’s “restraint” of victim in one from case “abduc- tion” in another. Section 53a-91 defines these and terms is, therefore, proper analysis focus for an substantive distinction between the two crimes. provides General Statutes 53a-91 § relevant (1) “ part: person’s ‘Restrain’ means to restrict a move- ments intentionally unlawfully in such a manner substantially liberty to interfere by with his moving place another, him from one by or confining him . . . . necessary without consent. . .” The act to com- mit restraint is clear. The defendant must “restrict person’s movements” him” or “moving “confining him . . . .” General Statutes Additionally, 53a-91 (1). § the legislature specify has chosen to a mental state. Therefore, clearly restraint subject not conduct liability. Rather, proscribed strict act of restricting “intentionally must be done unlawfully,” which clearly excludes reckless or negligent restriction purview another’s movements from the of criminal restraint. General Statutes Thus, 53a-91 I § con- clude, majority, unlike the the statute’s text requires that the with only defendant act general intent.3 3My has research not revealed extensive discussion in our case law distin guishing liability, general specific characteristics of strict intent and intent note, however, law, example, I crimes. that our case has characterized following general crimes as intent: sexual assault in the second degree Sorabella, (1); (a) e.g., § State under General Statutes 53a-71 155, 169, 897, denied, 131, 891 A.2d cert. 549 U.S. 127 S. Ct. injury (2006); (2) L. Ed. 2d 36 risk to a child under General 53- § Statutes 21; e.g., id., 172-73; (3) manslaughter 53a-56; degree in the second under Salz, n.5, see (1993) (distinguishing 627 A.2d 862 general manslaughter degree, requires intent crime in second which “recklessly” “intentionally,” specific defendant act either from 53a-54a); (4) degree crime of under § murder sexual assault in first under restriction of another namely, “proscribed act,” intentionally, but person’s movements, must done to achieve specific not a “intent the statute does define 4 v. . . . .” State Bit to the act some result additional however, statute, 5. The does 162 Conn. ting, supra, a extent of defen or restriction degree define The accomplish a restraint. perpetrate dant must person’s a movements actor must “restrict criminal substantially with ... a manner as to interfere such . 53a-91 liberty . . .” General Statutes § [the victim’s] 132, 136, Smith, E.g., A.2d § State v. Conn. General Statutes 53a-70. (1989). Furthermore, many expose crimes a defendant convicted of them these prescribed by comparable punishment greater or than that the unlawful legislature’s therefore, suggest, to the I that we cannot look restraint statutes. requires punishment an as an indicator of whether the crime choice merely specific general but look element of intent or intent must statute, Bitting, supra, language v. with State accordance 5, legislature’s (class § 53a-71 to ascertain the intent. See General Statutes felony); felony); (class B § B C 53-21 or C General or General Statutes (class felony); (class § § C 53a-70 A or Statutes 53a-56 General Statutes felony). B 4My addressing prior case in which this court conclusion necessitates a observed, analysis, legislature’s with little that the use of word “intention specific ally” pursuant in a renders the crime a intent crime statute Shaw, 186 Conn. 438 A.2d 872 § General Statutes 53a-5. State Shaw, (1982). disagree I not with this observation which inconsistent only plain precedent recogniz language § of 53a-5but also with our general specific ing both intent and intent crimes. part: provides § General Statutes 53a-5 in relevant “When the commission offense, [53a], . an of an offense defined in . . title or some element of state, ordinarily requires particular designated a state is mental such mental by ‘intentionally’, defining the use of the ‘know- in the statute offense terms by ‘recklessly’ terms, ingly’, negligence’, or ‘criminal or use of such as ‘with specific ’knowing false’, describing it intent to defraud’ and to be kind of knowledge. (Emphasis added.) or . . .” does not indicate intent statute crimes; rather, specific it that the use of these words defines intent denotes legislature likely the words that to use to communicate the mental required any particular Additionally, crime. our case law state does presence support or the conclusion that the one more these enumerated Shine, specific See, e.g., phrases intent crime. words indicates 632, 637-39, (categorizing statutory (1984) certain 479 A.2d 218 crimes). requiring general crimes “recklessness” Therefore, faced with whether determining a defendant has committed an unlawful restraint must beyond decide whether the has proven state a reason- able doubt that the (1) intentionally defendant acted unlawfully to restrict (2) movement, victim’s that the restriction amounted (3) to a substantial inter- liberty, ference with victim’s the restric- accomplished tion was without victim’s consent.5 “abduct,” The term as defined 53a-91 builds (2), provides on the definition of “restrain.” The statute “ person means to restrain with intent ‘[a]bduct’ prevent by (A) his liberation either or secreting holding him in a place likely where he is not to be found, or (B) using threatening physical or to use force or intimi- dation.” General Statutes 53a-91 To find a defen- § guilty dant of kidnapping, therefore, must find that the has proven beyond state a reasonable doubt restraint, all of the elements of a outlined previously, plus accomplished that the defendant a restraint “with prevent intent to liberation . . by . [the victim’s] using or threatening physical to use or intimida- force (Emphasis tion.” added.) General Statutes 53a-91 (2); § see also Commission to Statutes, Revise the Criminal Connecticut Penal Code Comments (1971) 53a-91, p. § 30, reprinted in 28A Conn. Gen. Stat. Ann. (West § 53a-91 p. 423 abduction 2007) (noting plus involves restraint intent to or secrete victim to threaten or use physical D. force); Orland, Borden & L. 10 Connecticut Practice Series: p. Connecticut Criminal Law Ed. (2d 2007) 181 (“an requires restraint, by abduction . as defined . . § 53a-91 ^[1] plus requisite intent defined by . . . [emphasis 53a-91 added]). Unlike the definition [2]” requires of “restrain,” merely which that the intend to an act, is, do restrain the victim’s

5 Inote that statute not does further define a substantial interference. Whether the restriction of movement rises to level of a substantial liberty jury. question interference with factual the victim’s is a for the addi requires of “abduct” movement, the definition with “intent the defendant act proof tional restraining] additional to the act achieve some result [of 5. Bitting, supra, Specifically, 162 Conn. . . .” v. . State kidnap specified the crime has legislature act proof that the defendant requires additional ping spe prevent victim’s liberation intent Luurtsema, v. e.g., State See, means. cific physical (2002) “use 201, 811 (including A.2d requisite kidnapping); intent for force” statement 604, 618, 767 (1983) Conn. 469 A.2d Vass, State force intimidation” sufficient force, threat of (“use satisfy kidnapping); for crime of requisite intent 415-16, 450 A.2d 356 Bell, Criminal also Commission to Revise the (same); see in 53a-91, p. (noting abduction Statutes, supra, § to secrete victim or plus volves restraint Thus, physical force). threaten or use crime, intent element specific intent additional only from unlawful distinguishes may also from other crimes that involve restraint but restraint of the victim. majority’s recognize significant

The failure to the product misreading is the of its intent distinction majority and elements of “restrain” “abduct.” The necessary victim, the to restrain a describes intent substantially person’s intent to interfere with that “the liberty majority opinion. . . . .” Footnote 28 of the This precise is is not reading not the statute and sup- ported by legislature’s language. the choice of Unlike “abduct,” language the used to define the used language require to that define “restrain” does not to restrict the victim’s movements with “the intent inter- person’s liberty”; with substantially (emphasis fere “intentionally only act id.; but that the defendant added) . unlawfully (1). . . .” General Statutes 53a-91 § and 584 “in phrase

The such manner as to interfere substan- tially liberty” with his in 53a-91 (1) point defines the § at which the defendant’s intentional restriction of the victim becomes a criminal restraint.6 The definition “abduct” builds on the intentional act of but restraint 6 majority’s “intentionally” The reliance the definition of in set forth support (11) § General 53a-3 to Statutes its conclusion that unlawful restraint specific provision ais intent crime is far from conclusive. That definitional statutory intent—general specific. McColl, defines both kinds of State v. 545, App. 575, 107, denied, 953, 74 Conn. 813 A.2d cert. Conn. 262 818 A.2d (2003); Austin, 226, 235-37, see also v. Conn. State 710 A.2d 732 (1998); DeBarros, 673, App. 680-84, v. State 755 A.2d cert. denied, (2000). statutory “intent,” 254 Conn. 761 A.2d 756 To act with objective engage proscribed a defendant must have the conscious to objective particular conduct or have the conscious to cause a result. The majority plain language § contorts the of 53a-91 to arrive at its conclusion proscribed “moving victim,” confining that the conduct or the liberty. intended result is substantial with the interference victim’s Footnote majority opinion. previously discussed, disagree 28 of the As I with this reading Rather, proscribed §of 53a-91. conduct is the restriction movements, accomplished through victim’s which must be movement Contrary majority’s position, confinement. to the does statute not dictate specific substantially that the defendant have to interfere liberty; only provides that, restraint, the victim’s it to be a the restriction enough must be severe to so interfere. Furthermore, majority’s understanding “directive”; § and its 53a-5 id.; repeatedly recognized that, is not consistent with case law. our We have requires prove intentionally “when a state statute to that the defendant engaged statutorily conduct, proscribed require § in the 53a-5 does not us presume requires prove statute the state to that the defendant knowledge (Emphasis had a circumstance described in the statute.” original.) Higgins, 35, 45, (2003); v. 265 Conn. A.2d 1126 State see Denby, 477, 482-83, majority (1995). 235 Conn. 668A.2d 682 The criticizes my by noting reading apply requirement §of 53a-91 that I would the intent accomplished fact that the restraint must be without the victim’s majority however, recognize, consent for it fails unlawful. lack of is a consent circumstance that must in order exist to render factual proscribed rejected argument conduct unlawful. This court has an virtu ally by majority identical to that now advanced that the defendant must respect knowledge 53a-70, have the victim’s lack of consent with degree, general sexual assault the first which intent crime. State Smith, 132, 136-40, it A.2d 713 I think also is relevant majority’s charged the to concerns to note that a defendant with unlawful certainly may recognized restraint raise the of we in defense consent. As Smith, finding complainant implicitly negate that a had consented “[a] would Id., Furthermore, statutory a claim” of unlawful restraint. 140. the scheme defining unlawful restraint and does not make consent affir- an

585 prove that the defen- that the state additionally requires of definition specific intent. the possessed dant “with phrase employs the “abduct,” legislature the defen- that the requirement the intent to” to describe result of additional to achieve the dant must desire Therefore, places on the burden the defense of consent mative defense. beyond prove whenever of a reasonable doubt lack consent “the state to Id. the issue is raised.” My with this reading also is consistent of the unlawful restraint statutes defining general interpretation crime of risk of § 53-21 the court’s part provides injury (a) that § 53-21 in relevant to child. General Statutes any permits person wilfully unlawfully “[a]ny child who or causes or placed limb such child is to in such a situation that the or ... be life injured endangered, likely is or the morals the such child be health of impaired guilty likely . . . shall be of a class C such are child legislature employed felony (Emphasis added.) language . . that . .” the “wilfully unlawfully required the mental state is or in this statute define “intentionally,” “wilfully” (a). is not § . . . .” Statutes 53-21 Unlike General by §in the definitional a menial state referenced 53a-5 otherwise defined concluded, however, This has that section our criminal statutes. court require legislature the intends to that defendant’s actions be “intentional” 766, 774, proscribes Payne, when it “wilful” conduct. State v. 240 Conn. 695 Romero, part (1997), grounds 525 State v. 269 A.2d overruled other Sorabella, 155, 481, (2004); v. Conn. Conn. 849 A.2d 760 see also State 277 897, 131, 173, denied, 821, L. 891 A.2d cert. 549 U.S. 127 S. Ct. 166 Ed. 2d held, however, respect injury statute, (2006). We have with risk of 36 apply requirement to the that the that conduct be intentional does not Sorabella, endangering or morals of a State v. effect health child. 464, 470-71, supra, 173; Berube, App. see also Allstate Ins. Co. 84 Conn. denied, 929, consistent, 53, A.2d 271 859 A.2d 583 cert. Conn. Tobe majority’s position “intentionally,” § that 53a-5 mandates that as used applies (1), §in to the effect “in such manner as to interfere 53a-91 substantially liberty”; (1); § would General Statutes 53a-91 [the victim’s] “wilfully,” 53-21, apply § used in to the effect “that the also mandate endangered, likely such life or limb of such child the health of child injured likely impaired . . . .” to be or the morals of such child are to be only (a) (1). § This can to the conclusion that General Statutes 53-21 lead majority injury apply logic will in the risk of statute future specific course, so, thus it to intent crime. Of in order to do find be a majority again long have has held will to overrule a line of cases that disapproval. legislative otherwise and has not met with majority’s Appel Finally, view of 53a-5 with the seems inconsistent App. 348, 365, Youngs, late Court’s conclusion denied, (2006), A.2d that the intent A.2d cert. requirement degree apply for unlawful restraint first does not to the perpetrated requires element of that offense the restraint to be under expose physical injury. the victim to substantial risk of circumstances 586 by the

preventing liberty victim’s him or secreting using physical or threatening to use force or intimidation.7 (Emphasis General added.) Statutes § 53a-91

Significantly, legislature repeats the this linguistic pattern of “restrain” with a as coupling specific intent phrase statutory indicated the “with intent to” in the which scheme, supports further the conclusion that 7 majority my that also asserts conclusion that unlawful restraint is general a intent crime is “inconsistent” with this court’s decision in State Foster, 520, (1987), because, v. case, A.2d 522 277 in that “we impliedly acknowledged only if, if, restraint is unlawful a defen objective moving confining dant’s conscious or the victim is to achieve prohibited result, namely, to restrict the victim’s movements in such substantially liberty.” manner as to interfere with his or her Footnote 28 of majority opinion. agree majority. Foster, the I do not with the In we not did analyze language requirement § the of 53a-91 the define intent did, however, reject “restrain.” We the defendant’s contention that the trial improperly court’s instructions the definition of “restrain” led the prove believe that state did not need to that the defendant intended substantially liberty. Foster, supra, interfere with the v. victim’s State affirmatively adopt analysis requisite 539. The did court this of the statutory Instead, instructions, intent. the court cited the trial court’s which simply precise statutory “restrain,” set forth definition of and noted that, charge entirety, is reviewed in its “[w]hen it is obvious that the adequately explained meaning court had more than [trial] of restraint (Internal quotation omitted.) . . . .” marks Id. support Foster, majority Appellate of its discussion of cites three majority opinion. First, Court See cases. footnote 28 I note that these binding Furthermore, cases engaged are not on this court. none of them comparison requirements a textual of the intent for unlawful restraint and cases, kidnapping. Davis, App. 667, In the first of these State 13 Conn. stated, (1988), Appellate analysis all, 539 A.2d 150 Court with no at requires specific Id., Le, unlawful restraint intent. 672. In v. Phu Dinh 339, App. (1989), 17 Conn. 552 A.2d 448 the court relied on the flawed Shaw, 45, 53, (1982); conclusion in State v. 186 Conn. 438 A.2d 872 see opinion; summary footnote 4 and on statement in Davis. See Le, supra, Finally, Youngs, State v. App. Phu Dinh 343. in State 97 Conn. 348, denied, (2006), A.2d cert. A.2d analysis court meaningful also relied on and offered more Davis no its specific id., conclusion that unlawful restraint is a intent See crime. 363-65. Moreover, although Youngs categorized the court in unlawful as restraint specific crime, specific required intent that court stated that the intent victim, not, majority suggests, the intent to restrain the the intent substantially liberty. to interfere with the victim’s See id. crime. General general unlawful restraint first defines (a) 53a-92 Statutes part: person guilty “A is provides relevant and degree when he abducts degree in the first kidnapping person he and ... restrains person (2) another upon injury to inflict physical (A) abducted with intent . . .” sexually (Emphasis . or abuse him him or violate in the first kidnapping Thus, guilty added.) inten- that defendant prove must state degree, unlawfully victim’s move- and restricted the tionally substantially with interfere degree to such a as to ments her prevent liberty with intent (i.e., restraint), her or physical force intimida- liberation use threat physical intent to inflict abduction), tion and with (i.e., sexually. her General Statutes injury or abuse See lan- In contrast to the (a) (A). 53a-92 §§ 53a-91 and employs provide spe- guage legislature must to a restraint intent be added cific restraint statutes kidnapping, constitute the unlawful specify no similar addi- employ no similar language 53a-95 intent. General Statutes generally §§ tional See simply Rather, provisions and 53a-96. these state when he person is of unlawful restraint” guilty “[a] 53a-95 person. another General Statutes §§ restrains 53a-96. requirements for Identification of the different intent sev- important and unlawful restraint is kidnapping it different First, explains legislature’s eral reasons. classification of the two crimes because Second, kidnap- intent. once requires greater criminal specific crime, intent ping distinguished is potential to a defendant with charged defenses available crime are broader than the more serious to a with unlawful charged those available Finally, restraint.8 construction consistent voluntary recognized This court that the defense of intoxication has negate required specific mental to commit intent crimes available state general negate required for but not available to the mental state

our law, case repeatedly which has identified that a kidnapping conviction requires proof that the defendant possessed the necessary intent. only

Not does the analysis preceding clarify the dis- tinction between unlawful restraint and it kidnapping, also confirms analysis that the always we have con- ducted when a defendant is charged with kidnapping and an underlying assault-type proper. crime is question for the is not whether the restraint was incidental to the commission of some underlying crime but whether proved the state has beyond a reasonable doubt that the confinement or movement of the victim accomplished was “with requisite the intent” to consti- tute the crime of State v. kidnapping. Luurtsema, supra, 262 Conn. 201; accord State Amarillo, 198 Conn. 285, 305, 503 A.2d 146 (1986); see also v. Bell, State supra, 188 Conn. 416. Therefore, in circumstances like those present case, in which the defendant’s conduct may warrant a kidnapping and charge an additional charge, prove the state must beyond a reasonable doubt that the possessed defendant both requisite intent to commit the underlying specific crime and the intent necessary for support a conviction on both charges.

It is the proper role of jury to make such determi- nations. The burden is on present the state to evidence to support its contention that the possessed intents, both even if he did so simultaneously. As our long history of case law dealing this issue illus- trates, there will be factual circumstances that make it especially jury difficult for a identify whether a defendant acted with a singular purpose multiple E.g., Shine, 632, 638, 479 crimes. State v. (1984). Similarly, 193 Conn. A.2d 218 only the defense negate of mistake of fact can be raised the mental state required specific Smith, to commit intent crimes. State v. 139, 142, (1989). 554 A.2d 713 func- Nevertheless, jury’s is the objectives. it criminal challenge. “It offends court’s, meet tion, not may fact particular give a logic nor reason that neither The inference ulti- contradictory inferences. rise to only rational mately by jury drawn need jury to the possible. Our law confides inference infer- among conflicting often deciding difficult task of may from reasonably flow which and logically ences of the evidence basic fact. its consideration the same sense, rely experience on its common jury must drawing nature in inferences of human knowledge fact.” Rodgers, reaching conclusions 53, 59, A.2d crimi- multiple rise to give When defendant’s actions important jury especially it is charges, nal prove state must requisite understand separate crime. a reasonable doubt each beyond inter- that our majority expresses existing concern “encouraged has pretation statutes [prosecutors] kidnapping charge ... to include robbery.” The any case a sexual assault or involving attempts devise means which majority then restraining must whether the act of determine other or “incidental” to the commission of the crime “independent” it and “significant enough” whether was separate kidnapping. crime (Internal constitute quotation marks This standard omitted.) ignores new statutory clearly requires language specific that for the of a and instead intent commission on I focuses the conduct or actions of the defendant. differently and majority’s concerns would address but, on focus not the defendant’s actions the statute dictates, on the defendant’s intent. be jury all of the

The must consider evidence may infer intent from the conduct instructed that it majority the defendant.9 The identifies considerations jury’s it that deems relevant determination whether restraint incidental some other crime. suggest I would that such factors are of rele- greater jury’s vance to a determination of whether defen- necessary has intent specific dant acted with support jury conviction. The must be instructed to all attendant For consider circumstances. example, any spoken by defen- evidence words may dant to the or victim victims that indicate his men- state, tal the manner in which the defendant accomplished restraint victim, of the the actions prior took to, during that and following restraint, the nature and duration of the victim’s confinement, movement or whether the restraint separate occurred the commission of a during offense, whether the restraint reduced the defendant’s risk of being whether the caught, and restraint occurred under prevented discovery circumstances that victim all will jury’s assist a determination and shed on light the inner of the defendant’s state of mind. workings example, by For court that the trial should instruct defined our “[a]s statute, person intentionally respect acts with to conduct his con when objective engage in scious is to such conduct. person’s purpose usually “What a or intention has been is a matter by person testify determined No inference. is able to that he looked into purpose only therein another’s mind and saw a certain or intention. way ordinarily person’s purpose in which a can what a determine any time, person’s given statements, was at intention aside from that own person’s determining that what conduct was and what the circum- that, surrounding conduct, purpose were stances and from infer what his or intention was. necessary one; is, you required inference “This is not a are not you conduct, to infer intent from it is an the accused’s but inference that may you logical draw if it find that is reasonable and and in accordance evidence. . . . [the instructions circumstantial court’s] beyond proving burden of a reasonable doubt is on the “[T]he (Internal quotation 164, omitted.) Respass, marks state.” n.16, 478, denied, cert. 183-84 770 A.2d 534 U.S. 122 S. Ct. L. Ed. 2d 392 charged with mul- Furthermore, when a defendant is jury properly the trial must instruct tiple crimes, courts kidnapping specific required on both the After any crime. requisite underlying intent for other the the intent, trial the on the elements instructing “If find you specify following: should court also victim, previously as I’ve the defendant restrained not find that this restraint term, defined that but do an abduction because the defendant amounted to the victim’s libera- specific prevent intent to lacked by place him in a where he is secreting holding tion or found, by using threatening or use likely not intimidation, you force or then must find the physical kidnapping. The guilty charge defendant not the intent intent for different from separate assault-type To find commit crime]. [the find charges, you of both must guilty only beyond has a reasonable proven state engaged doubt that the defendant in the conduct consti- each crime but also that defendant acted with tuting requisite intent for each crime.” II previously I 53a-91, described, Section is clear and on its face. The claimed on unambiguous ambiguity majority in its which the relies to extratextual engage premised majority’s flawed investigation read- is, upon statute. It incumbent me ing therefore, majority to address the errors that the commits investigation, majority’s the violence that the ultimate principles do to our of stare decisis and conclusions problems its new rules our regarding created kidnapping statutes.

A investigation As a into the result its extratextual backdrop” surrounding the enactment of our “historical majority that the penal code, revised determines legislature scope “intended to exclude from the of the more serious of kidnapping crime and its accompanying penalties severe those confinements or movements of merely a victim that are necessary incidental and the commission of another crime against that victim.” My primary disagreement with this determination is improperly that it focuses on the action of restraint in the crime rather than on the intent requirement. Additionally, the evidence on which the majority rests its ultimate incomplete. determination is First, majority correctly observes that the commis- sion to revise the criminal statutes (commission) intended its of the kidnapping and unlawful revisions provisions restraint to draw a distinction between majority restraints and abductions. The fails to recog- nize, however, that the commission accomplished this goal adoption its through states differing mental necessary for commission of two crimes. The com- itself mission articulated the essence of this distinction: “Restraining, defined, as involves non-consensual re- striction or physical interference with liberty. Abduc- pZws tion involves restricting intent to victim secrete the or the threat physical to use the use of force or intimidation.” (Emphasis added.) Commission to Re- vise the Statutes, supra, Criminal 30. 53a-91, p. §

Additionally, majority relies the fact that the commission that it generally noted “drew compa from provisions rable of New York’s Revised Penal Law and the Model Penal Code” on the reform of kidnapping statutes with the New York starting Appeals’ Court of v. People decision Levy, 159, 15 N.Y.2d 204 N.E.2d 793, denied, 256 N.Y.S.2d cert. 381 U.S. 85 S. 1770, 14 Ct. L. Ed. 2d 701 The (1965).10 majority is correct 10Notably, repeatedly expressly rejected arguments this court has reasoning Levy early based on initial as its construction of 53a- seq. See, Amarillo, e.g., supra, n.12; 91 et State 198 Conn. 304 & Chetcuti, 165, 170-71, 377 A.2d 263 adopted in Connecticut penal code the revised New York Penal format parallels structural imprisonment. and unlawful Law on rele- however, the three majority to neglects highlight, that the Con- changes vant and substantive significant New York model before made to the legislature necticut York defines “restrain” First, New our code. enacting includes definition restraint differently. New York’s can mean restriction “without consent” provision a decep- “physical force, intimidation or accomplished by ,”11 (1) (a) (McKinney . Penal Law 135.00 § tion . . N.Y. omits from its definition 2004). contrast, Connecticut or intimida- any physical mention of force of “restraint” 53a-91 Sec- § tion. General Statutes generally See differently. York’s ond, “abduct” New New York defines requires person “restrain a definition that the defendant . . . by using with to his liberation or prevent (b) intent threatening deadly physical (Emphasis to use force.’’12 (2) 2004). N.Y. Penal Law 135.00 added.) (McKinney § Conversely, in 53a-91 (2) § the definition “abduct” “deadly instead, requirement” but, contains no force closely that more resem- language uses more inclusive employed defining bles that which New York “ provides: (1) § to New York Penal Law 135.00 ‘Restrain’ means restrict person’s intentionally unlawfully in such manner as to movements liberty place substantially by moving with his him from one interfere another, by confining place him either in the where the restriction com or place moved, in a he has consent and mences or which been without person knowledge A or with that the restriction unlawful. is so moved accomplished by (a) physicalforce, confined ‘without when such consent’ any acquies deception, whatever, including (b) or intimidation or means victim, years incompe old cence of the if he is child less than sixteen or an person person parent, guardian having or tent and the or other institution acquiesced custody lawful or of him has not in the movement or control (Emphasis added.) (1) (McKinney N.Y. Law § confinement.” Penal 135.00 2004). “ (2) provides: § New Law 135.00 ‘Abduct’ means to restrain York Penal prevent by person (a) secreting or with intent his liberation either holding place likely found, (b) using in a is not or him where he or deadly physical (Emphasis added.) threatening to use N.Y. Penal force.” (McKinney 2004). § Law 135.00 “restrain.” See General Statutes 53a-91 (2) (“ § ‘[a]bduct person means to restrain a to prevent his . . . liberation to use using threatening physical force or Finally, New York’s intimidation”). statute defining kidnapping temporal the first includes degree quirement.13 re See N.Y. Penal Law § 135.25 (McKin ney 2004) (person is guilty degree first when, under circumstances not involving demand for ransom, he abducts person, another restrains other person for than possesses spe more twelve hours and cific intent do statutory further Connecticut’s harm). any not express period scheme does con minimum finement. generally See General sug Statutes 53a-92.1 gest these differences are vital to interpreting the statutory ultimately adopted by scheme the Connecticut New legislature demonstrate York Penal only Law served as a guide. Moreover, the changes our made to New legislature support York model this court’s existing construction of our stat utes, rejects requirement which a time or distance for proof requisite restraint and relies on specific intent to establish a guilt. defendant’s

B The majority’s opinion premised is only on its statutory analysis flawed but also ignoring 13 provides part: person New Law § York Penal 135.25 in relevant “A is guilty degree person of in the first when he abducts another when: compel person pay money “1. His a third or deliver or property ransom, particular engage conduct, or to other in or refrain engaging particular conduct; from or person period “2. He restrains the abducted more than twelve hours intent to: “(a) physical injury upon sexually; Inflict him or violate or abuse him or “(b) Accomplish felony; or advance the commission of a or “(c) person; Terrorize him or a third or “(d) performance governmental political of a Interfere with function (Emphasis added.) (McKinney 2004). N.Y. Law § Penal 135.25 legislative and the dictates of stare decisis important correctly acknowl- majority acquiescence doctrine. especially decisis principle that the stare edges present in the circumstances, such as those strong e.g., Hum- statutory See, construction. case, involving 494-95, Transport, Ltd., 282 Conn. v. Marten mel decision, the court today’s With A.2d 657 important principle. strays far afield of this support law identifies several indicators Our case inaction should legislative conclusion that statutory construc- affirmation of our court’s viewed as of time that has length The first indicator is the tion. interpreta- of its passed since the court’s announcement which the has remained legislature and during tion id., failure to act e.g., (legislature’s See, silent. interpreted years since court first statute eighteen v. Commissioner Hammond “highly significant”); 873-74, A.2d 774 Correction, of its merits because argument regardless (rejecting years of legisla- court constrained more than sixteen Correction, tive Rivera v. Commissioner silence); years of 214, 252, 756 A.2d 1264 (2000) (six affirma- legislature’s silence indicative legislative opportunities The second factor is the number tion). statutory that this court has had to reconsider its initial by See inteipretation and to decide whether to abide it. 282 Transport, Ltd., supra, Hummel v. Marten Conn. repeated affirmation of its initial inter- (court’s 491-95 by pretation persuasive); followed silence legislative v. B.V. 284 Conn. Mfg., Inc., see also Mahon Unitron . 665, . . 645, (“[i]n light long 935 A.2d of (2007) history, [party] heavy burden of dem- interpretive has why legislative we should not onstrating treat response silence in to our construction of statute] [a cf. approval construction”). as of that But legislative Development Ferrigno Associates, Cromwell 198-202, A.2d 1371 (inconsistent by interpretive history court weighed favor of overrul ing one case’s view of despite legislative statute inac The third tion). factor is that the court should consider any the existence of evidence that the issue of the presented statute’s construction has been to the legisla by ture or addressed all members, is, at its that whether there been opportunity has an actual to affirm or cor rect. See Hummel Marten Transport, Ltd., supra, 495 (since decisions, court’s legislature enacted com prehensive statutory reform to “only scheme but [ejffected a nonsubstantive change [statute]”); Ham mond v. Correction, Commissioner supra, 874 (legis of acquiescence “especially lature’s strong” wake prior case in “expressly which concurrence urged” leg islature to statute); reexamine Rivera v. Commissioner Correction, supra, 252 (legislature statutory amended provision since court’s decision without addressing court’s construction).

This court was called interpret first on to et § 53a-91 seq. in Chetcuti, 1977. See State v.

A.2d 263 (1977). Chetcuti, we concluded that “[t]he . language of statutes is clear . . .” Id., 168. Fur thermore, we expressly rejected the approach that the majority present takes in case, namely, that when “the abduction and restraint a victim merely are incidental some other underlying offense, such assault, sexual the abduction and restraint cannot form the basis for a guilty verdict charge kidnap ping.” (Emphasis added.) Id., 170. We also recognized effect” that this “merger incidental rule would cre ate adopted if and announced that legislature “the this state has seen kidnap fit the offense of merge ping any with sexual assault or with felony. other Nor imposed any has the legislature time requirement the restraint, any nor requirement distance for the asportation to constitute the crime of Id. kidnapping.” This consistently conclusion has been by affirmed nearly always court See, unanimous decision. e.g., Luurtsema, State v. 262 supra, 201-203; Conn. State 824 (2000); A.2d 441, 465-66, Wilcox, 254 Conn. V. v. State supra, 304-305; 198 Conn. Amarillo, v. State Bell, 614-15; supra, v. Vass, supra, has remained Moreover, the legislature 416-17. Conn. opportunities despite several this time throughout silent statutory of the court’s construction to alter this con recognized of all these presence The scheme.14 legisla court should infer that this indicates siderations majority body’s inaction. from that tive affirmation respect legislative with my position view elects to bar to reconsideration as an absolute acquiescence is not at all interpretation. My position statutory prior the factors that contemplates one extreme. When determining in us to consider precedent requires our the inaction affirmation legislative to deem whether to our history respect case law with of our “how reason however, I cannot see statutes, court] [this today, if it is to follow that rule ably could decline Transport, v. all.”15Hummel Marten any retain force at Ltd., supra, 282 Conn. 502. long legislature is aware of this court’s 14 Thereis evidence that the opportunities standing statutory and has declined amend construction example, although portions the relevant of the statutes since 1977.For 53a-94, majority quickly law a 1993 amendment to our case dismisses respect provision suggests legislature’s to this action previous significant evidence of to alter the court’s construction is failure 495; Ltd., Transport, supra, See affirmation. Hummel Marten Additionally, Correction, supra, 254 Conn. 252.

Rivera Commissioner of following Luurtsema, judiciary considered in committee our decision addressing kidnapping. charge Act of the An three bills the elements Asportation Cases, Concerning Kidnapping in Bill No. Raised Asportation Cases, Kidnapping Sess.; Concerning Bill No. An Act Senate Cases, 530,2005 Sess.; Kidnapping Concerning Asportation in Raised An Act committee action. Bill No. 2003 Sess. None received favorable 15 spite persuasions, majority observes, with of these substantial doctrine, respect legislative acquiescence has that this court also [following interpretation “recognized legislative stat our inaction necessarily quotation legislative (Internal . . .” affirmation . ute] note, majority omitted.) however, I on which the marks that none cases law, supports deviation, case, weight of our case relies from the accepts legislature’s again, have “Time and we which silence assent. legislature mani to take corrective action as characterized failure acquiescence (Inter festing legislature’s our of astatute.” construction Correction, supra, omitted.) quotation v. Commissioner nal marks Rivera 598 general

In addition to its observation that legislative always acquiescence has not been affirmation, deemed maj ority justify articulates six reasons to its decision precedent. overrule our The long-standing ideas that majority expresses and cases that it support cites in reasons, however, of these all are distinguishable from present case. I Further, agree do not that these six injustice rationales rise to the level of substantial or 252; Inc., Mfg., supra, 254 Conn. accord Mahon v. B.V. Unitron 284 Conn. 665; Transport, Ltd., supra, 494; Conway Hummel v. Marten 282 Conn. v. Wilton, 653, 682, (1996). 238 Conn. 680 A.2d 242 example, majority Colon, 587, For relies State v. 257 Conn. 778 (2001), proposition “legislative always 875 A.2d for the inaction is not legislative guides (Internal quotation omitted.) the best of intent.” marks single support observation, namely, The court in Colon in cited case of this 371, Co., 379, v. Streitweiser Middlesex Mutual Assurance 219 Conn. 593 Colon, (1991). supra, A.2d 498 v. See State 598 n.14. Streitweiser is far example, however, from a classic of this court’s consideration of whether legislative Streitweiser, inaction amounts affirmation. the court was cases, response faced with two inconsistent lines in to which the court that, “[bjecause holdings directions, observed these diverse look in different legislature logically acquiesced cannot have in ah.” them Streitweiser Co., supra, inconsistency v. Middlesex Mutual Assurance 379. No such present Notwithstanding important in exists case. distinction Streitweiser, distinguishable. case, Colonitself is In that didwe not announce §of reconstruction 53a-48 overrule the case in it which was first con- strued, namely, Grullon, v. 212 State Conn. 481 A.2d See Colon, supra, Rather, v. subsequent State 598-600. the court overruled a case, Robinson, (1989), State v. Conn. 567 A.2d 1173 not because interpretation conspiracy clearly its of 53a-48 a bilateral statute was injustice erroneous or resulted but it because concluded that its reliance improper. Colon, supra, on Grullon in Robinson was See State v. 598-601. majority The other cases on which relies its observation that always legislative distinguishable silence is not affirmation are likewise from statutory present the reconsideration of the scheme at issue case. See, e.g., Skakel, 633, 692, pronounce v. (broad State 888A.2d 985 beyond statutory “tempers ment common-law rule mere construction upset interpretation particular . . . traditional reluctance settled of a statute”), denied, 1030, 127 578, 166 (2006); cert. Ct. U.S. S. L. Ed. 2d 428 Miranda, 727, 734, (court (2005) 274 Conn. 878 A.2d 1118 corrected “clearly wrong” statutory interpretation only years Waterbury old); three Washington, 506, 539-45, 800 (first interpreta A.2d 1102 specific statutory provision tion of and reexamination of earlier construc entirety statutory scheme); tions due to court’s failure to have considered Development Ferrigno Associates, supra, v. Cromwell 244 Conn. 198-202 (correction interpretations time). of court’s inconsistent of same statute over an require to overrule cases which our error, clear statutory construction.16 existing acknowledges legisla- our role as majority body’s we first when construe surrogate ture’s 16 prece First, majority arguments for adherence to asserts the that “[t]he may compelling not be . . when the rule to be discarded are . dent least litigants reasonably . . . .” supposed the of the to have conduct determined Craig opinion, p. 523, Majority quoting (Internal quotation omitted.) marks prior Driscoll, 312, 330, None of our v. 262 Conn. 813 A.2d Supreme by quote Justice United States Court cases that cite this former Cardozo, Beryamin Cardozo; B. of Judicial Process see The Nature the N. existing (1921) p. 151; overruling of a the construction criminal discussed recognize Craig Driscoll, supra, (deciding to See v. whether statute. purveyor negligently against served alcohol to adult common-law action who, intoxication, person, noting patron injured and fact third because of unlikely question govern parties to of what law would were consider Ericson, injury); George in v. 250 Conn. their conduct if it were to result 317-18, (1999) (overruling rule of evidence 736 A.2d 889 common-law testimony excluding nontreating physicians replacing it with and standard of testimony Wilton, expert general); Conway governing v. witnesses in of 653, 661, (reinterpretation governing (1996) of statute 680 A.2d O’Connor, 632, 644, 648, liability); 519 A.2d 13 tort O’Connor 201 Conn. (rejection actions). of lex loci doctrine in tort Furthermore, larger in when statement is viewed the Justice Cardozo’s entitled, Precedent,” support chapter does context of his “Adherence to it majority’s engage suggestion that actors like those who in the criminal are rarely govern thought give law will their and to what tortious conduct Instead, possibility observing the criminal behavior. Justice Cardozo was generation that, time, grew up in a over “the rules of law which remote experience, generation may, another in the fullness of found to serve badly Cardozo, supra, p. this . . . .” B. 151. I fail to see the relevance of majority’s observation to the decision. presented by Second, majority suggests the that “the issue defendant’s the top likely legislative the claim is that is to have reached the of not one support majority authority agenda its . I cites no of ...” note that the directly legislature unlikely is act claims that the “because the issue relatively implicates only category ... it is narrow of criminal cases position the that the defendant advocates would attract uncertain whether sponsors legislature . . . ... is interested with access to the it [and] sufficiently important gain support.” full the is their unclear whether issue only garner majority apparently has I from these that the can observations lobbyists require legislature that the would the influence of and concluded statutory political rectify potential advantage in order to an erroneous the by majority's Additionally, puzzled I am the this court. construction assumption application kidnapping our is of interest that the statutes little past activity addressing legislature light it committee in the opinion. years. 14 of few See footnote Third, majority that “this court never has undertaken an concludes analysis kidnapping warrant broad extensive of whether our statutes in enacting

intent It fails, however, statute. to recog- nize the end of that we once have construed surrogacy legislature’s an appropriate time has given previously opinion, construction that we have As I them.” stated in this agree majority in-depth analysis lacking I with the textual in our prior written decisions. Fourth, majority prior holdings claims that a “reason to reconsider our construing kidnapping encompass virtually statutes to all sexual assaults prior application of our robberies that all cases have relied on a literal language Although majority of our statutes.” concedes “frequently adhere[sj language statute,” that this court to the literal it proceeds rely exemplify on four cases to we situations which eschewed language literal statute it because led bizarre or unworkable majority results. I note that none the four cases to which the refers implicated legislative acquiescence Moreover, stare or our decisis doctrine. distinguishable applica the cases involved circumstances that are from present tion of our statutes in the case. See Clark Commis Correction, 380, 390-91, 401, 917 (2007) (rejecting sioner A.2d 1 statutory face); literal construction because scheme conflicted on its Con nelly Correction, 394, 404-405, v. Commissioner 258 Conn. 780 A.2d 903 of (2001) (in time, rejected construing reading for statute first court literal that impliedly existing legislature express would overrule case law that not did Levey Corporate overrule); Circle, intent to v. Miller Maretz 595 258 Conn. 121, 132-33, (2001) (rejecting 780 A.2d literal construction of statute expressly legislature provision when did communicated that it not intend narrowly construed); Brown, 389, 402-406, to be State v. 242 Conn. (literal practically A.2d 943 of construction statute would have been required regardless unworkable as it would have trial to commence attorney available). whether defendant’s was Fifth, majority suggests legislative acquiescence the that “the doctrine requires acquiescence part legislature”; (internal quota actual on the of the omitted); Berkley Gavin, tion marks and cites to a footnote in 253 Conn. 761, (2000), proposition. id., note, 756 A.2d 248 for this See I 776-77 n.11. any however, authority general proposition the lack of for this announced Nevertheless, already Berkley. discussed, respect as I have with to the kidnapping statutes, 1993, acquiescence. has been there actual In subsection (b) present same the statute under which the defendant in the case was and, charged yet, change respect was amended made no was with to a requirement length asportation. minimum for the of confinement or See 1993, 93-148, significant legislature Public Acts No. 1.It is that the amended years interpretation the statute sixteen after our was first announced and by rulings court, pertinent after consistent and chose not amend the opinion. definitional sections. See footnote 14 of this If this is not evidence acquiescence, pressed majority I am know hard where else to look. The appears suggest that, legislature because the not did correct our construc statutes, kidnapping acquiescence. tion of the was there no Sixth, majority that, 1977, rejected observes “since when this court first kidnapping a claim involving conviction not could be based conduct merely crime, a restraint that is to the incidental commission of another many contrary courts other states have reached a conclusion in This that construction. action to correct passed without jurisprudential limi “significant court should honor by acquiescence imposed legislative on us tation” omitted) Hammond quotation doctrine; marks (internal Correction, supra, 874; v. Commissioner of are and not courts “legislatures recognize State Ska activity.” criminal responsible defining denied, cert. kel, 633, 675, 985, 888 A.2d Ed. 2d 428 127 Ct. 166 L. U.S. S.

C new majority announces its construction forward, explains that, going crime of the state not kidnapping, “in to establish a order any period minimum of confine- required to establish of movement. When that confinement degree ment or commission of merely movement is incidental or movement crime, however, another confinement necessary to com- must have exceeded that which supported mit other This conclusion is not crime.” prior construc- by the of the statutes or our language expressly rejecting tion such a rule. our rejecting jurisprudence, majority only steps into existing effectively also legislature the shoes but divests they prosecutors charging discretion cur- rently respect the crimes of possess so, accomplishes and unlawful restraint. In it doing in by which was best articulated Justice Borden his Luurtsema: opinion appeal- in “It would be concurring . . in degree to decide . case the ing given majority interpreting kidnapping their statutes.” The later characterizes “followpng] these courts’ actions as the lead New York and California suggested Significantly, highest . . . .” commentator of New York’s one has Levy majority usurped power legislature. court: “The the the New York by judicial interpretation kidnapping effect, court wrote a new statute the Parker, “Aspects Merger Kidnapping,” New F. Law for York.” in the agree L. Rev. I that evidence of a trend 55 Cornell other may jurisdictions kidnapping change indicate that a in our laws would be adoption legislature, prudent advisable, changes or but of such for the not this court. or movement time of forcible restraint de too [mini- may to constitute The fact it kidnapping. be mis] me, however, counterintuitive is not sufficient .... implicitly rejected any have notion that a slight “[W]e degree asportation or detention could create a question whether regarding merely kidnapping ‘incidental’ to the underlying by crime also committed ... It would be contrary legisla- defendant. [a] tive fray scheme us to reenter that . . . and would for micromanaging amount to is essentially what a charg- ing state . . decision .” (Citations omitted; . Luurtsema, supra, emphasis added.) 204-205 (Borden, J., concurring).

I majority’s with the begin intrusion on our state’s attorneys. majority correctly acknowledges our well law may settled “an that, charged accused and convicted of more than one arising crime out of acts, act or same as all of long the elements today’s of each crime are proven.” decision, With majority ignores equally well settled principle that when “criminal overlap, statutes state is entitled to choose long from them as as its action does among not any discriminate against class of defendants. . . . We always prosecutors have held that have broad discre tion in what determining crime crimes to charge in any particular Moreover, . . . situation. where the elements of two or more distinct offenses are combined in the act, prosecution prose same for one will bar cution omitted.) State Chet (Citations other.” cuti, supra, 173 majority Conn. 168-69. The claims, of any supporting authority, absence that our interpretation of existing statute has prosecutors afforded with “unbridled discretion” and them ... “encouraged include charge any robbery.” case sexual assault or I am involving puzzled by statement, encompasses which general prosecutors’ criticism of decisions this charging majority opinion indi- 23 of the because footnote realm, discretion to exercise this prosecutors seem cates that majority suggests, As favor. in the defendants’ often less serious many for the prosecutions to be there seem circum- from factual arising restraint crime of unlawful support the more serious that could stances opinion. majority Al- footnote 23 charge. See prosecutorial discretion is held though we have that also have noted that “the oversight, without we not is one area prosecutorial charging decisions basis of judicial for broad generally oversight well suited and discre- judgment it involve exercises because [s] articulate in a manner tion that are often difficult to judicial quotation (Internal suitable evaluation.” Grievance Statewide Massameno omitted.) marks Committee, 539, 575, 663 A.2d 317 oversight We exercise of such have authorized the id., See 576-77. response to a claim of discrimination. claim, This raises no such and I am not aware discriminatory practices any prior charging claims of respect to the crime of kidnapping. statutory scheme does not mandate that all necessary with the intent restraints committed I as prosecuted kidnappings. recognize, abduct be law, overlap does our there an area of case in the between the crime of unlawful restraint first requires which restraint of the victim “under degree, expose which to substan circumstances [the victim] injury”; 53a-95; of physical tial risk General Statutes § may kidnapping. possible It crime expose person “restrain” a under circumstances injury when person physical such to substantial risk perpetrator’s risk is created use Jordan, force. See State physical App. 143, 148, 781 physical A.2d 310 of actual (2001) (“jury finding encompasses statutoiy requirement of mere injury exposure As court physical recognized injury”).

604 Palmer, in State v. 40, 206 Conn. 536 A.2d (1988), 936 however, overlap does not diminish the fact that two crimes have different id., elements. See 53-54 (rejecting claim that conviction of kidnapping unlawful restraint in first degree jeop- violates double ardy principles). Specifically, kidnapping requires addi- proof particular tional necessary criminal intent v. Luurtsema, State See, e.g., establish abduction. supra, physical 262 Conn. 201 “use (including force” of requisite State statement intent for kidnapping); Vass, supra, v. (“use 191 Conn. 618 of force, threat of force of satisfy requisite intimidation” sufficient Bell, State v. intent for crime of kidnapping); 188 supra, Conn. 415-16 see (same); also Commission to Revise Statutes, supra, p. Criminal 53a-91, 30 (noting plus intent abduction involves restraint vic- secrete tim or to physical threaten or use force). majority

The merely fails to recognize because are could there factual give circumstances rise to prosecution for kidnapping they does not mean that must. Our case law that, recognized has under certain circumstances, factual unlawful restraint in the first may degree constitute lesser included offense crime of kidnapping in the first or degree. second See Vass, State v. see also State v. supra, 618; 191 Conn. Daugaard, 195, n.1, 231 Conn. 196 647 A.2d 342 (1994), denied, 1099, cert. 513 770, U.S. 115 S. Ct. L. Ed. Palmer, supra, see State 2d 666 But (1995). purposes 53-54 (concluding, jeopardy double analysis, that defendant could have committed crime in first without degree first com having purportedly mitted lesser included offense of unlawful particular restraint in first degree). Thus, charged may entitled to charge on unlawful restraint.17 entitled, satisfy four-pronged To be so the defendant would have to Whistnant, this court in test laid out A.2d 414 “A defendant is entitled an on a instruction lesser offense if, only appropriate requested by if ... an instruction is either the purview of our only invades the majority of the statu new construction attorneys, but its state’s constitu fact that tory ignores scheme [state] “[t]he enact laws power legislature to the assigns tion and method fixing crimes and defining degree Darden, 677, 171 Conn. . . . .” State v. punishment punishments 679-80, (1976). “Prescribing 372 A.2d 99 and is clearly fits into this therefore category for crimes Morrison, legislature.” of the State a function denied, cert. App. 632, 634, 665 A.2d Conn. majority the (1995). Reading A.2d 376 entirety that the crux of its concern in its reveals opinion under really severity punishment of authorized is the scope potential of the of light statutes in kidnapping the by majority appears The to over it. governed conduct responsibility crimes is the defining look the fact that Moreover, regarding our this concern legislature. of predicated studying on the defendant’s overbreadth is noted, however, the focus previously I conduct. As intent and not specific be on the defendant’s should majority’s focus leads misguided conduct.18 The his offense, defendant; possible greater (2) it is to commit the state or the not particulars, of in information or bill without in the manner described the lesser; evidence, having (3) is introduced first committed the there some proofs, defendant, by by or a combination of their either the state the justifies offense; proof the on the which of the lesser conviction the offense from the offense element or elements which differentiate lesser sufficiently dispute permit jury consistently charged the to find the is guilty (Internal greater but of the defendant innocent offense lesser.” Vass, quotation omitted.) supra, 616-17. marks prevail he was “The in Vass could not on his entitled [defendant claim] definition, charge Although of unlawful restraint .... its restraint of kidnapping, person, ambit of the crime of another does fall within the satisfy prong . . . He failed to the fourth of the Whistnant test. intent, . . . failed to demonstrate that the crucial element which differen- degree, kidnapping from restraint in second was suffi- tiates unlawful ciently dispute justify charge. an on the The defendant instruction lesser perpe- suggest . offered no evidence . . that would tend to that whoever requisite prevent restrained the victim without the intent to trated crime (Citation by force, intimidation.” her liberation the use of threat of force or Id., omitted.) 618. 18 majority kidnapping prior describes our of the statutes construction juries “overly proposes broad” and now must determine whether is to the commission of a defendant’s restraint victim incidental to the conclusion that a illogical defendant’s conviction improper when the restraint was inci- dental to the commission of an crime underlying but that defendant’s conviction of both unlawful restraint and the same crime underlying improper under position only the same circumstances. This makes severity sense if one considers the variation punishment that results from a conviction. is, majority by That does not seem to be bothered punishment the additional for D felony, the class first unlawful but degree restraint, is bothered addi- B charge felony, tional for the class degree second kid- napping. Although majority concludes legislature graded intended scheme increasing severity punishment an restriction of individu- liberty, al’s which I do not it no refute, offers basis for its inconsistent conclusion that the did not legislature intend for defendants to be convicted of kidnapping they when a perpetrate restraint incidental to an assault- type crime but did intend for defendants be convicted of unlawful restraint under the same In circumstances. situation, necessary the latter the restraint to commit necessary crime underlying restraint commit the crime of unlawful are restraint also the same. prosecutors This conclusion divests of their dis- decisions, cretion to make charging ignores the clear the crimes of language distinguishing kidnapping and by unlawful of respective intents, restraint virtue their proper jury and diminishes the role of a to determine proven whether the state has all of elements the crimes beyond part a charged reasonable doubt. See I this of see also State opinion; Cortes, separate provide jury I guidance crime. fail to how will a see this clear discerning judgment. Moreover, part on how to such make a as noted in I opinion, majority suggests factors that the should properly possessed consider are more indicators whether the defendant necessary kidnap the mental state the victim rather than whether perpetrated independent significance. defendant a restraint of guilty found defendant (jury 885 A.2d 153 kidnapping). guilty unlawful restraint but not majority’s decision aspect troubling Another of two imposition appears it to result kidnapping when a separate determining standards for an assault- has committed has If defendant occurred. prove have the state type crime, majority would then . . . movement, or “confinement, detention that the itself, warrant inde- in and of enough, was significant quotation marks omit- pendent prosecution.” (Internal victim contrast, defendant abducts a ted.) In when a assault-type crime but cannot with intent to commit an majority’s assault-type crime, under the complete the justi- conviction would construction, kidnapping degree fied ©fthe confinement regardless length could paradigm, of movement. Under this defendant his victim suffered be convicted of when than in a in which the physical injury less actual case accomplished assault and the underlying merely act incidental to that assault. any way I how effectuate the cannot see this would to create a legislature’s statute written or the “rational, coherent, criminal code that is cohesive . .” quotation . . marks intelligible (Internal omitted.) Nevertheless, I with the result reached agree majority. present case, the trial court instructed only the of intent and jury general meaning specific on kidnapping omitted from its instructions necessary intent a conviction on that Fur- charge.19 thermore, improperly the trial court defined “abduct” 19 jury part: in “Intent relates to The trial court instructed the relevant act, doing purpose his condition of mind who commits an in [of one] statute, intentionally respect by person act. a with to result [a] As defined acts engage objective . is in such conduct. . . or conduct when the conscious to specific “Nobody is into mind and see a intent. able look another’s way ordinarily purpose only jury person’s what a was can determine testimony person’s than statements and or intent other from that own by determining what what the conduct was and the circumstances were surrounding . . .” the conduct.

608 in its jury.20 I to the with charge agree the defendant that these instructions improper. were Because specific to prevent by the victim’s liberation secreting her, by or using or threatening physical use force intimidation, or is an essential element of the crime charged, such an omission constitutes reversible error. Tedesco, See, v. e.g., 397 291-92, A.2d 1352 I (1978). Furthermore, conclude that the trial court’s definition of “abduct” potential had the to con fuse jury and did not adequately distinguish crime of unlawful restraint in the first degree from that in degree.21 the second Therefore, I con cur the result the majority reaches, is, the defendant entitled the reversal of his conviction degree the second and a new trial on that charge.

STATE OF CONNECTICUT PAOLINO SANSEVERINO* (SC 17786) (SC 17787) J., Norcott, Rogers, Katz, Zarella, C. Palmer and Js. part: The trial court instructed in relevant “Abduct means to by person physical restrain use force or the threatened use physical by force or intimidation.” 53a-91, may Under accomplish the definitions set forth in § one many means, through including restraint Statutes 53a-91 the use of force. See General (1). example, may § For a defendant commit an unlawful possessing prevent restraint without ever an intent to the victim’s liberation by using physical threatening or to use Such force. restraint could occur by confining using barriers, refusing the victim in a room locks or other provide or, notes, by information on the location of exit an as the statute deception. person may accomplish abduction, however, only A an if he specific prevent “by restrains the victim intent to his liberation (A) secreting holding place likely either or him in where he is not found, (B) using threatening physical or to use force or intimidation.” (2). General Statutes 53a-91 * Following court, opinion reconsideration en banc this has been superseded part. Sanseverino, n.2, See State A.2d 710

Case Details

Case Name: State v. Salamon

Court Name: Supreme Court of Connecticut

Date Published: Jul 1, 2008

Citation: 949 A.2d 1092

Docket Number: SC 17610

Court Abbreviation: Conn.