State v. Salamon
Full Opinion (html_with_citations)
Opinion
A jury found the defendant, Scott Salamon, guilty of one count each of the crimes of kidnapping in the second degree in violation of General Statutes Ā§ 53a-94/ unlawful restraint in the first degree
The jury reasonably could have found the following facts. In the summer of 2002, the victim, a fifteen year old female,
The defendant initially was charged with various offenses, including unlawful restraint in the first degree,
On appeal, the defendant claims that his conviction of kidnapping in the second degree must be reversed because, contrary to controlling precedent, the jury should have been instructed to find the defendant not guilty of that charge if it first found that the defendantās restraint of the victim in connection with the kidnapping was incidental to the defendantās restraint of the victim
I
The defendant maintains that our construction of this stateās kidnapping statutes has been overly broad, thereby resulting in kidnapping convictions for conduct that the legislature did not contemplate would provide the basis for such convictions. He claims that the legislature did not intend for the enhanced penalties available upon conviction of kidnapping
āThis court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law.ā Conway v. Wilton, 238 Conn. 653, 658, 680 A.2d 242 (1996). āThe doctrine of stare decisis counsels that a court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it. . . . Stare decisis is justified because it allows for predictability in the ordering of conduct, it promotes the necessary perception that the law is relatively unchanging, it saves resources and it promotes judicial efficiency. ... It is the most important application of a theory of decisionmaking consistency in our legal culture and ... is an obvious manifestation of the notion that decisionmaking consistency itself has normative value.ā (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494, 923 A.2d 657 (2007).
Moreover, ā[i]n evaluating the force of stare decisis, our case law dictates that we should be especially wary
None of the foregoing principles, however, necessarily constitutes an insurmountable barrier to a courtās reconsideration of its prior precedent. With respect to the doctrine of stare decisis, we repeatedly have observed that ā[t]he value of adhering to [past] precedent is not an end in and of itself ... if the precedent reflects substantive injustice. Consistency must also serve a justice related end. . . . When a previous decision clearly creates injustice, the court should seriously consider whether the goals of stare decisis are outweighed, rather than dictated, by the prudential and pragmatic considerations that inform the doctrine to enforce a clearly erroneous decision. . . . The court must weigh [the] benefits of [stare decisis] against its burdens in deciding whether to overturn a precedent it thinks is unjust. ... It is more important that the
We also have recognized that ālegislative inaction [following our interpretation of a statute] is not necessarily legislative affirmation . . . .ā (Internal quotation marks omitted.) State v. Colon, supra, 257 Conn. 598 n.14; accord Rivera v. Commissioner of Correction, 254 Conn. 214, 252, 756 A.2d 1264 (2000). Indeed, we recently have observed that the legislatureās failure to
For several reasons, we are persuaded that it is appropriate to reexamine our interpretation of the kidnapping
Second, the issue presented by the defendantās claim is not one that is likely to have reached the top of the legislative agenda because the issue directly implicates only a relatively narrow category of criminal cases, that is, kidnapping cases in which the restraint involved is incidental to the commission of another crime. Moreover, in contrast to other matters that are subject to
Third, this court never has undertaken an extensive analysis of whether our kidnapping statutes warrant the broad construction that we have given them. Although we consistently have reaffirmed our existing construction of those statutes, our conclusion essentially has been limited to the general observationā predicated solely on the language of the kidnapping statutesāthat the ālegislature [has] not seen fit to merge the offense of kidnapping with other felonies, nor impose any time requirements for restraint, nor distance requirements for asportation, to the crime of kidnapping.ā (Internal quotation marks omitted.) State v. Luurtsema, supra, 262 Conn. 202; accord State v. Wilcox, 254 Conn. 441, 465, 758 A.2d 824 (2000); State v. Amarillo, 198 Conn. 285, 304-305, 503 A.2d 146 (1986); State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979); State v. Chetcuti, 173 Conn. 165, 170, 377 A.2d 263 (1977). In view of the fact that the parties to the present appeal have thoroughly and thoughtfully briefed the issue, this case affords us the opportunity to conduct a more searching examination of the merits of that issue than we previously have undertaken.
A fourth, albeit related, reason to reconsider our prior holdings construing the kidnapping statutes to encompass virtually all sexual assaults and robberies is that all of our prior cases have relied on a literal application of the language of our kidnapping statutes. See, e.g., State v. Luurtsema, supra, 262 Conn. 201-202. Although we frequently adhere to the literal language of a statute, we are not bound to do so when it leads to unconscionable, anomalous or bizarre results. See, e.g., Clark v.
Fifth, āthe legislative acquiescence doctrine requires actual acquiescence on the part of the legislature. [Thus] [i]n most of our prior cases, we have employed the doctrine not simply because of legislative inaction, but because the legislature affirmatively amended the statute subsequent to a judicial or administrative interpretation, but chose not to amend the specific provision of the statute at issue.ā Berkley v. Gavin, 253 Conn. 761, 776-77 n.11, 756 A.2d 248 (2000). In other words, ā[legislative concurrence is particularly strong [when] the legislature makes unrelated amendments in the same statute.ā (Internal quotation marks omitted.) Discuillo v. Stone & Webster, 242 Conn. 570, 594, 698 A.2d 873 (1997) (Berdon, J., dissenting). It is significant, therefore, that, with the exception of a 1993 amendment to Ā§ 53a-94 affecting only its penalty provisions,
Finally, since 1977, when this court first rejected a claim that a kidnapping conviction could not be based
The crime of kidnapping and other offenses primarily involving restrictions of another personās liberty, including unlawful restraint and custodial interference,
Since 1977, we have had numerous opportunities to examine the scope of the kidnapping statutes, generally in response to a claim that the crime of kidnapping was not intended to apply to a restraint that was merely incidental to the commission of another crime. See, e.g., State v. Luurtsema, supra, 262 Conn. 200; State v. Wilcox, supra, 254 Conn. 465-66; State v. Amarillo, supra, 198 Conn. 304-306; State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983); State v. Johnson, 185 Conn. 163, 177-78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 477 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, supra, 177 Conn. 342-43; State v. Chetcuti, supra, 173 Conn. 170. In reliance on a literal application of the statutory language, we consistently have rejected that claim, explaining that, because the statutory definitions of the terms ārestrainā and āabductā contain no time or distance specifications, the
In Luurtsema, we applied these principles strictly in upholding the first degree kidnapping conviction of the defendant, Peter Luurtsema, whose restraint of the victim was both minimal and entirely coextensive with the defendantās attempted sexual assault of the victim. See State v. Luurtsema, supra, 262 Conn. 200-204. In the hours leading up to the attempted sexual assault, the victim was Luurtsemaās consensual social companion,
In light of the considerations identified by Justices Borden and Katz in Luurtsema, and because of the relative severity of the penalties available upon conviction of the crime of kidnapping, a close examination
At least in a case not involving the secreting of a victim in a place that he or she is unlikely to be found; see General Statutes Ā§ 53a-91 (2) (A); it is the intent element only that differentiates an abductionāthe sine qua non of the crime of kidnappingāfrom a mere unlawful restraint, and the relatively minor penalties attendant to the latter offense.
Kidnapping, a common-law misdemeanor, traditionally was defined as the forcible removal of another individual from the country. See 3 W. LaFave, Substantive Criminal Law (2d Ed. 2003) Ā§ 18.1, p. 4; see also 4 W. Blackstone, Commentaries on the Laws of England (1769) p. 219. Early American statutes defining the crime retained the requirement of a boundary crossing but relaxed the requirement by proscribing the victimās forcible removal from the state. See note, āFrom Blackstone to Innis: A Judicial Search for a Definition of Kidnapping,ā 16 Suffolk U. L. Rev. 367, 368 (1982). Over time, however, the scope of proscribed behavior and the penalties attendant to a kidnapping conviction were broadened substantially by state legislatures. See 3 W. LaFave, supra, Ā§ 18.1, pp. 4-5; see also note, āA Rationale of the Law of Kidnapping,ā 53 Colum. L. Rev. 540 (1953). In the early twentieth century, kidnappings for ransom had become increasingly common, and state lawmakers responded by amending kidnapping statutes to criminalize a wider range of conduct and to authorize more severe sentences upon conviction. See note, supra, 53 Colum. L. Rev. 540. This trend intensified in the wake of the highly publicized kidnapping and murder of the young son of famed aviator Charles Lindbergh in 1932 and the public outcry that followed. See 3 W. LaFave, supra, Ā§ 18.1, p. 4. Among the evils that both the common law and later statutory prohibitions against kidnapping sought to address were the isolation of a victim from the protections of society and the law and the special fear and danger inherent in such isolation.
The evolution of Connecticutās kidnapping statutes tracks these developments. Prior to 1901, our kidnapping statute focused primarily on the unlawful removal
Beginning in the 1950s, however, questions surfaced about the propriety of such expansively worded kidnapping statutes. In particular, concerns were expressed that the newly adopted kidnapping statutes permitted the imposition of extremely severe sanctions for a broad and ill defined range of behavior, including relatively trivial types of restraint. See 3 W. LaFave, supra, Ā§ 18.1, pp. 4-5. Moreover, as one commentator noted, āvirtually all conduct within the scope of kidnapping law [was] punishable under some other criminal provision: e.g., extortion, homicide, assault, rape, robbery, statutory rape, [and] contributing to the delinquency of a minor .... Consequently, the practical effect of kidnapping law [was] to permit the imposition of additional sanctions when one of [those] other crimes [was] accompanied by a detention and asportation.ā Note, supra, 53 Colum. L. Rev. 556.
These concerns prompted calls for legislative reform by the drafters of the Model Penal Code. As the drafters stated in the commentary to the proposed code, the goal was āto devise a proper system of grading to discriminate between simple false imprisonment and the more terrifying and dangerous abductions for ransom or other felonious purpose.ā Model Penal Code Ā§ 212.1, comment 1, p. 11 (Tentative Draft No. 11, 1960). The drafters, noting that ā[e]xamples of abusive prosecution
Contraction of the scope of kidnapping law also was effected through the courts. In the landmark case of People v. Levy, 15 N.Y.2d 159, 163-65, 204 N.E.2d 842, 256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965), the New York Court of Appeals rejected a literal application of New Yorkās broadly worded kidnapping statute to the detention and movement of two armed robbery victims during the course of the robbery. The court noted that the provision at issue, which defined kidnapping as āconfin[ing] another with intent to cause him ... to be confined against his willā; (internal quotation marks omitted) id., 164; ācould literally overrun several other crimes, notably robbery and rape, and in some circumstances assault, since detention and sometimes confinement, against the will of the victim, frequently accompany these crimes.ā Id. The court concluded that the legislature did not intend for ārestraints, sometimes accompanied by asportation, which are incidents to other crimes and have long been treated as integral parts of other crimes ... to constitute a separate crime of kidnapping, even though kidnapping might sometimes be spelled out literally from the statutory words.ā Id.; see also People v. Lombardi, 20 N.Y.2d 266, 270, 229 N.E.2d 206, 282 N.Y.S.2d 519 (1967) (āthe direction of the criminal law has been to limit the scope of the kidnapping statute, with its very substantially more severe penal consequences, to true kidnapping situations and not to
Soon thereafter, the Supreme Court of California, in People v. Daniels, 71 Cal. 2d 1119, 459 P.2d 225, 80 Cal. Rptr. 897 (1969), a case involving a series of robberies and sexual assaults in which the victims had been forced to move short distances in the moments immediately preceding the commission of those crimes; see id., 1123-25; followed the approach of the New York Court of Appeals in Levy. Id., 1134-36. At the time, kidnapping was defined in the California Penal Code as āthe act of one who forcibly steals, takes, or arrests any person in th[e] state, and carries him into another country, state, or county, or into another part of the same county.ā (Internal quotation marks omitted.) Id., 1126. The court overruled its earlier, literal interpretation of the kidnapping provision in light of the contemporaneous ācurrent of common sense in the construction and application of [kidnapping] statutesā; id., 1127; and concluded that the statute did not apply to the defendants in that case because their movement of the victims was minimal and incidental to other crimes, that is, those movements were compelled solely to facilitate the commission of the sexual assaults and robberies. Id., 1130-31, 1134, 1140. The court found support for its conclusion in the holdings of Levy and Lombardi, despite differences in the wording of New Yorkās kidnapping statutes, because the reasoning of the New York Court of Appeals was persuasive and representative of the more enlightened, modem approach.
We note, finally, that when drafting the revised criminal code, the commission drew generally from comparable provisions of New Yorkās Revised Penal Law and the Model Penal Code. Commission to Revise the Criminal Statutes, supra, tit. 53a, p. 1, reprinted in 28 Conn. Gen. Stat. Ann. tit. 53a (West 2007) p. 289. Overall, the commission sought to create a code that met certain standards: āthat it be rational, coherent, cohesive and intelligible; that it take into account modem knowledge and information; that it be based on reason and experience; and that it reflect an enlightened and informed outlook.ā Commission to Revise the Criminal Statutes, Proposed Connecticut Penal Code (1969) p. 7.
Our conclusion is bolstered by the fact that, in the years since Levy and Daniels, a considerable majority of state courts have followed the lead of New York and California in concluding that the crime of kidnapping does not include conduct involving a restraint that is merely incidental to the commission of some other crime against the victim. See, e.g., Patzka v. State, 348 So. 2d 520, 523-24 (Ala. Crim. App. 1977); Alam v. State, 776 P.2d 345, 349 (Alaska App. 1989); Summerlin v. State, 296 Ark. 347, 350-51, 756 S.W.2d 908 (1988); People v. Daniels, supra, 71 Cal. 2d 1130-31, 1134; People v. Bridges, 199 Colo. 520, 528-29, 612 P.2d 1110 (1980);
Our holding does not represent a complete refutation of the principles established by our prior kidnapping jurisprudence. First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement.
Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime.
Second, we do not retreat from the general principle that an accused may be charged with and convicted of more than one crime arising out of the same act or acts, as long as all of the elements of each crime are proven. Indeed, because the confinement or movement of a victim that occurs simultaneously with or incidental to the commission of another crime ordinarily will constitute a substantial interference with that victimās liberty, such restraints still may be prosecuted under the unlawful restraint statutes. Undoubtedly, many crimes involving restraints already are prosecuted under those provisions. Moreover, our holding is relatively narrow and directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping. We therefore do not anticipate that our holding will force a major shift in prosecutorial decision making.
Finally, in the present case, the defendant claims that he is entitled to a judgment of acquittal on the kidnapping count. The defendant contends that, in light
The evidence established that the defendant came up to the victim from behind her and, while she was walking up a staircase, grabbed her by the back of the neck. The victim fell to the floor, and the defendant held her there. She struggled to free herself from the defendantās grasp and screamed for him to let her go. The defendant continued to hold her down, however, and, when she persisted in screaming and fighting to extricate herself, he punched her once in the mouth and attempted to thrust his fingers down her throat. According to the victim, the defendant forced her to remain on the ground for at least five minutes before she was able to get away.
On the basis of these facts, a juror reasonably could find that the defendantās restraint of the victim was not merely incidental to his assault of the victim. The victim testified that the defendant, after accosting her, forcibly held her down for five minutes or more. Although the defendant punched the victim once and shoved his fingers into her mouth, that conduct was very brief in contrast to the extended duration of the defendantās restraint of the victim. In light of the evidence, moreover, a juror reasonably could find that the defendant pulled the victim to the ground primarily for the purpose of restraining her, and that he struck her and put his fingers in her mouth in an effort to subdue her and to prevent her from screaming for help so that she could not escape.
We next address the defendantās claim that he is entitled to a new trial on the charges of unlawful restraint in the first degree and risk of injury to a child due to the allegedly improper conduct of the deputy assistant stateās attorney (stateās attorney) during the trial. Specifically, the defendant contends that the stateās attorney improperly (1) suggested to the jury that the defendant had attempted to assault the victim sexually, despite the lack of evidence of any such attempted sexual assault, (2) denigrated defense counsel and asserted that counsel had attempted to mislead the jury, (3) used leading questions excessively during his direct examination of several of the stateās witnesses, (4) cross-examined the sole defense witness, and (5) referred to facts not in evidence during closing argument. Although we agree that some of the challenged conduct was improper, we conclude that, collectively, it did not rise to the level of a due process violation requiring a new trial.
āIn analyzing claims of prosecutorial impropriety, we engage in a two step process. . . . First, we must determine whether any impropriety in fact occurred; second, we must examine whether that impropriety, or the cumulative effect of multiple improprieties, deprived the defendant of his due process right to a fair trial. ... To determine whether the defendant was deprived of his due process right to a fair trial, we must determine
A
1
The defendant first claims that the stateās attorney unfairly prejudiced the jury against him by encouraging the jury to speculate that the case involved an attempted sexual assault, a crime with which the defendant was not charged. We agree, in part, with the defendant.
The following additional procedural history is relevant to our review of this contention. When the defendant first was arraigned, he was charged with multiple offenses but no sexual offense. Approximately one year later, on the first day of jury selection, the stateās attorney filed an amended information charging the defendant, for the first time, with kidnapping and attempted sexual assault in the third degree. The new information was read to the jury pool during each of the two days of jury selection that followed. On the day before the evidentiary portion of the trial commenced, the defendant filed a motion to dismiss the two new charges, claiming that there was no factual basis for them. Prior to argument on the defendantās motion, the stateās attorney filed a substitute information that did not contain the charge of attempted sexual assault in the third degree or any other sexual offense. During argument on the motion, the defendant claimed that the stateās
At trial, the stateās attorney called the victim as a witness. On direct examination, she testified in detail as to the events at the train station on the evening that she was attacked. In her testimony about those events, the victim explained that, as she and the defendant were struggling on the steps, just before she broke free, the skirt that she was wearing had started to rise. The stateās attorney asked the victim what she had on beneath her skirt that evening, and the victim replied that she had been wearing a pair of shorts and underclothing. The stateās attorney then asked the victim: āDid [the defendant] ever get into any of your underclothing?ā Defense counsel objected to the question and, after the jury was excused, moved for a mistrial. Defense counsel argued that, because there was no evidence that a sexual assault had occurred or had been attempted, the line of questioning was improperly suggestive and prejudicial, and demonstrated bad faith on the part of the stateās attorney. The stateās attorney responded that he merely was trying to narrow his case by establishing that the defendant had not intended to assault the victim sexually but, rather, that he had intended to inflict physical injury on her. The court instructed the stateās attorney that it was unnecessary for the state to disprove that the defendant had intended to commit a sexual assault but denied the motion for a mistrial. The trial court agreed, however, to give a
Finally, during closing argument, the stateās attorney alluded to the defendantās alleged intentions on the night of the incident in question. In particular, the stateās attorney made the following statements during the course of his closing argument: āYou all know what he wanted to do. You know all what he tried to do and you all know what he accomplished that night. . . . Ask yourself, what was this thirty-two year old, unemployed male at the train station at about [10 to 10:30 p.m.] doing? When he saw that girl walking into a secluded area, you all know what he wanted to do, tried to do and what he did. . . . [The defendant] knew the severity of his actions on a child, what he wanted to do and accomplish.ā Defense counsel objected to these statements and, again, moved for a mistrial. The trial court overruled defense counselās objections and denied the motion for mistrial, explaining that the stateās attorneyās remarks were a reference to the defendantās alleged intent to restrain and abduct the victim, not to assault her sexually. Finally, during his rebuttal argument, the stateās attorney reiterated: āYou know what [the defendant] wanted to do, he tried to do and what he accomplished? The abduction was accomplished because he held her down with force . . . .ā
The defendant contends that the foregoing conduct of the stateās attorney was improper because it was designed to inflame the jury by injecting a sexual offense into the case. ā[T]his court has recognized on numerous occasions that [a] prosecutor may not appeal to the emotions, passions and prejudices of the jurors. . . . [S]uch appeals should be avoided because they
With respect to the stateās attorneyās pretrial amendments to the original information and his statements during closing argument, we are not persuaded that the conduct was improper. Before a trial commences, a prosecutor has broad authority to add or delete charges, provided the defendant is not unduly prejudiced by those actions. Practice Book Ā§ 36-17; see also State v. Tanzella, 226 Conn. 601, 607, 628 A.2d 973 (1993). Nevertheless, a prosecutor should not bring charges that are unsupported by the evidence. See, e.g., American Bar Association, Standards for Criminal Justice: Prosecution Function and Defense Function (3d Ed. 1993) standard 3-3.9 (f), p. 71 (ABA Standards for Criminal Justice). In the present case, the victimās statement to the police indicated that her skirt had been hiked up during her encounter with the defendant and that, at the time, she believed that he intended to rape her. Accordingly, we cannot conclude that the stateās attorney lacked a good faith basis for adding the attempted sexual assault charge even though he later withdrew it.
With respect to the statements made by the stateās attorney during closing argument, we will not second-guess the determination of the trial court that those statements did not allude to the withdrawn attempted sexual assault charge. Because the defendant was charged with kidnapping and unlawful restraint, both specific intent crimes, it was reasonable for the court to conclude, as the stateās attorney represented, that the comments were intended to highlight for the jury
The stateās attorneyās question to the victim as to whether the defendant had tried to get into her underclothing, however, was improper. āA prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.ā ABA Standards for Criminal Justice, supra, standard 3-5.7 (d), p. 103. āIt is an improper tactic for . . . the prosecutor ... to attempt to communicate impressions by innuendo . . . when the questioner has no evidence to support the innuendo.ā Id., standard 3-5.7, commentary, p. 106; see also B. Gershman, Prosecutorial Misconduct (2dEd. 2007) Ā§ 10:20, p. 404 (ā[cjourts have consistently condemned prosecutorsā attempts to create an impression on the jury by innuendos in questions when no supporting evidence existsā). By the time the victim testified, the stateās attorney had withdrawn the attempted sexual assault charge, and he necessarily was aware that the evidence was inadequate to support a conviction for that offense. Indeed, the explanation that the stateās attorney proffered confirms as much. Finally, even if we credit the explanation that the stateās attorney gave for the question, that explanation is inadequate to justify the challenged argument because, as the trial court observed, the state did not have the burden of proving that the defendant was not trying to assault the victim sexually. We therefore agree with the defendant that it was improper for the stateās attorney to ask the victim whether the defendant had attempted to āget into . . . [her] underclothing.ā
2
The defendant next claims that the stateās attorney repeatedly denigrated defense counsel and improperly
According to the defendant, the stateās attorney, during trial, made derogatory remarks about, and facial expressions toward, defense counsel.
The defendant also takes issue with that portion of the stateās attorneyās rebuttal argument in which he used the terms āred herringā and āsmoke screenā to characterize certain issues that defense counsel had raised during his closing argument.
āThere is a distinction between argument that disparages the integrity or role of defense counsel and argument that disparages a theory of defense.ā State v. Orellana, 89 Conn. App. 71, 101, 872 A.2d 506, cert. denied, 274 Conn. 910, 876 A.2d 1202 (2005). Moreover, not every use of rhetorical language is improper. E.g., State v. Warholic, 278 Conn. 354, 363, 897 A.2d 569 (2006). A āred herringā is defined in relevant part as āa
3
The defendant further contends that the stateās attorney engaged in the excessive use of leading questions. In support of his claim, the defendant points to numerous instances in which the stateās attorney posed leading questions to the victim, the victimās mother and Gary Albert, a security guard who was assigned to the Stamford train station on the night the victim was accosted there. We also reject this claim of impropriety.
Leading questions generally are inappropriate on direct or redirect examination of a witness, although the court has discretion to allow them in certain circumstances. See Conn. Code Evid. Ā§ 6-8 (b). Under Ā§ 6-8 (b) (3) of the Connecticut Code of Evidence, the court may permit leading questions when they are ānecessary to develop a witnessā testimony . . . .ā The commentary accompanying Ā§ 6-8 (b) (3) of the Connecticut Code of Evidence explains that, under that exception, the court āmay allow the calling party to put leading questions to a young witness who is apprehensive or reticentā or āto a witness who has trouble communicating, by virtue of either a disability or language deficiency . . . .ā (Citation omitted.) Conn. Code Evid. Ā§ 6-8 (b), commentary.
As to Albert, the record reveals that his native language is French and that he had substantial difficulty testifying in English. The court therefore agreed to allow the stateās attorney a measure of leeway in his questioning of Albert, stating: āI [the court] had no idea what [Albert] was saying. So the jury must not have any idea what heās saying.ā The trial court acted well within its discretion in permitting the stateās attorney to put leading questions to the victim and to Albert.
Our review of the record indicates that certain questions posed by the stateās attorney to the victimās mother were leading. In each such instance, however, the trial court sustained defense counselās objection to the leading question, and, as a result, any answer that the victimās mother had given to these questions was stricken. The defendant has provided no reason, and we are aware of none, why the questions themselves were so prejudicial or harmful as to render the trial unfair. Consequently, the defendantās claim must fail.
4
The defendantās next claim is that the stateās attorneyās cross-examination of the sole defense witness,
The following additional procedural history is necessary to our evaluation of the defendantās claim. At trial, the defendant sought to establish that he was intoxicated when he attacked the victim and, therefore, that he could not have formed the specific intent necessary to commit either the crime of kidnapping or the crime of unlawful restraint. In support of his claim of intoxication, the defendant presented the testimony of Dahlgren, a casual acquaintance who knew the defendant because the two had frequented the same swimming pool and health club. Dahlgren had been identified and located by the defense, with the assistance of the defendantās mother, on the evening before she testified, and she was not disclosed as a witness until the day of her testimony. To some degree, she was a reluctant witness. Dahlgren testified, in essence, that she had seen the defendant at the pool on the evening in question and that he was highly intoxicated. She further testified that she recalled observing the defendant in that condition on the night in question because there had been a holiday party at the pool that evening, and because the defendant repeatedly had asked her for cigarettes.
The defendant challenges the propriety of the stateās attorneyās use of sarcasm during his cross-examination of Dahlgren. The defendant refers to several examples of the stateās attorneyās use of the device: (1) the stateās attorney asked Dahlgren whether she was ācertified in giving roadside . . . eye testsā as a follow-up to her testimony that she believed that the defendant had been
The defendant contends that the stateās attorneyās questioning of Dahlgren was improper because his
We conclude that the foregoing portions of the stateās attorneyās cross-examination of Dahlgren, when considered together, ran afoul of these proscriptions.
5
The defendant further claims that the stateās attorney improperly referred to facts not in evidence during closing argument. We disagree.
The following facts are relevant to this claim. In questioning the victimās mother, the stateās attorney asked her why the victim would not discuss the incident at the train station. The victimās mother responded: ā[S]he told me she didnāt want to talk to me right now. She did not want to relive that incident.ā Defense counsel objected to the testimony insofar as it purported to explain why the victim was unwilling to discuss the incident, and the trial court sustained the objection. The defendant now claims that the stateās attorney should not have referred to this testimony in his closing argument.
Of course, it is improper for a prosecutor, in his closing argument, to refer to evidence that has been stricken or ruled inadmissible. See, e.g., State v. Oliveras, 210 Conn. 751, 763, 557 A.2d 534 (1989). In the present case, however, on cross-examination of the victimās mother, defense counsel elicited virtually the same testimony. Specifically, in response to defense counselās question as to whether the victim had been willing to get counseling, the victimās mother replied: āShe was unwilling because she did not want to relive the incident. She didnāt want to go through it. She did not want to confide in anyone about it.ā Because this testimony of the victimās mother was properly before the jury, the stateās attorneyās reference to the substance of that testimony in closing argument was proper.
B
Having concluded that some of the stateās attorneyās conduct at trial was improper, we now must determine
In addition, ā[although a defendantās failure to object to improprieties does not preclude review of his claims . . . [w]hen defense counsel does not object, request a curative instruction or move for a mistrial, he presumably does not view the alleged impropriety as prejudicial enough to jeopardize seriously the defendantās right to a fair trial. . . . [T]he fact that defense counsel did not object to one or more incidents of [impropriety] must be considered in determining whether and to what extent the [impropriety] contributed to depriving the defendant of a fair trial and whether, therefore, reversal is warranted.ā (Citation omitted; internal quotation marks omitted.) Id., 782. The defendant did object and move for a mistrial following the stateās attorneyās inquiry of the victim as to whether the defendant had gotten into her underclothing. Much of the stateās attorneyās cross-examination of Dahlgren that the defendant challenges on appeal, however, was not the subject of a contemporaneous objection. To the extent that defense counsel failed to raise an objection, that fact weighs against the defendantās claim that the improper conduct was harmful.
As to the first Williams factor, the stateās attorneyās conduct that we have concluded was improper was not invited by the defense. Defense counsel sought to
With respect to the second and third Williams factors, the improprieties were not particularly severe or frequent when viewed in the context of the entire trial, which spanned several days and included eleven witnesses. See, e.g., State v. James G., 268 Conn. 382, 419, 844 A.2d 810 (2004) (in examining claim of prosecutorial impropriety, prosecutorās conduct must be viewed in broader context of entire trial). With respect to the stateās attorneyās improper questioning of the victim about whether the defendant had attempted to āget intoā her underclothing, that questioning was brief and isolated, and the trial court immediately sustained defense counselās objection to that inquiry. Furthermore, the victim and at least two other witnesses testified as to the victimās belief that the defendant had been trying to rape her, and a statement that the police had taken from the victim immediately after the incident, which was admitted into evidence, also reflected the victimās belief as to the defendantās motivation in that regard. Finally, although improper, the stateās attorneyās unduly sarcastic and repetitive questioning of Dahlgren was neither egregious nor representative of a pattern of similar conduct throughout the trial.
Finally, although Dahlgrenās testimony was relevant to a central issue in the case, namely, the defendantās intent, the stateās case against the defendant was strong. The defendant did not contest the stateās proof that he had accosted the victim at the train station and did not dispute the essential facts relating to that altercation. Rather, the defendant attempted to demonstrate that he had been so intoxicated when he assaulted the victim that he lacked the specific intent necessary to commit the crime of kidnapping or of unlawful restraint. The evidence that the state adduced, however, strongly contradicted the defendantās claim. For example, two Metropolitan Transit Authority officers who were present when the defendant was apprehended shortly after the incident testified that the defendant did not appear to be intoxicated. In addition, an emergency room record documenting medical treatment that the defendant received for a twisted ankle that he suffered while running from the scene of the alleged assault of the victim does not indicate that the defendant had been intoxicated. Finally, it was apparent from her testimony that Dahlgren was not particularly friendly with or close to the defendant, a fact that minimized the effect of the stateās attorneyās efforts, some of which were improper, to undermine Dahlgrenās credibility.
Upon consideration of the relevant factors, we are satisfied that the several instances of prosecutorial
Ill
The defendantās final claim is that the trial court improperly instructed the jury with respect to the offense of unlawful restraint in the first degree, thereby entitling him to a new trial on that charge. We disagree that the trial courtās instructions were inadequate.
The defendant claims that the trial courtās instructions were flawed because the courtās definition of the term āintentā was incomplete and, therefore, inaccurate. In support of this contention, the defendant relies on General Statutes Ā§ 53a-3 (11), which provides that ā[a] person acts āintentionallyā with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct . . . .ā (Emphasis added.) The defendant further contends that the courtās improper definition of intent rendered the instructions
The state concedes that the trial courtās definition of āintentā was incomplete because the court failed to explain the term in accordance with the statutory definition. Because the courtās definition of intent did not contain the phrase āto cause such result,ā that definition focused solely on the concept of general intentāthat is, an intent to engage in certain conductāand not on the concept of specific intentāthat is, an intent to bring about a certain result. āWhen the elements of a crime consist of a description of a particular act and a mental element not specific in nature, the only issue is whether the defendant intended to do the proscribed act. If he did so intend, he has the requisite general intent for culpability. When the elements of a crime include a defendantās intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent.ā State v. Bitting, 162 Conn. 1, 5, 291 A.2d 240 (1971). Because, as we have explained, unlawful restraint is a specific intent crime, the courtās definition of intent, standing alone, was inaccurate for purposes of the present case.
āWhen reviewing [a] challenged jury instruction . . . [however] we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a courtās charge is not whether it is as accurate upon
Applying the foregoing standards, we conclude that it is not reasonably possible that the jury was misled by the courtās incomplete definition of intent because the court thereafter accurately explained that, to prove the element of ārestraint,ā the state was required to establish that the defendant had restricted the victimās movements āintentionally and unlawfully in such a manner so as to interfere substantially with her liberty by confining her without her consent.ā (Emphasis added.) Under this explanation, there is no reasonable possibility that the jury could have found the defendant guilty of unlawful restraint unless it first had found that he had restricted the victimās movements with the intent to interfere substantially with her liberty. In other
The judgment is reversed only as to the conviction of kidnapping in the second degree and the case is remanded for a new trial on that count. The judgment is affirmed in all other respects.
In this opinion BORDEN, NORCOTT and KATZ, Js., concurred.
General Statutes Ā§ 53a-94 provides in relevant part: ā(a) A person is guilty of kidnapping in the second degree when he abducts another person. . .
ā āAbductā means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.ā General Statutes Ā§ 53a-91 (2).
āā āRestrainā means to restrict a personās movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent. As used herein, āwithout consentā means, but is not limited to, (A) deception and (B) any means whatever, including acquiescence of the victim, if he is a child less than sixteen years old or an incompetent person and the parent, guardian or other person or institution having lawful control or custody of him has not acquiesced in the movement or confinement.ā General Statutes Ā§ 53a-91 (1).
General Statutes Ā§ 53a-95 provides in relevant part: ā(a) A person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose such other person to a substantial risk of physical injury. ...ā
General Statutes (Rev. to 2001) Ā§ 53-21 (a) provides in relevant part: āAny person who (1) wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that the life or limb of such child is endangered, the health of such child is likely to be injured or the morals of such child are likely to be impaired, or does any act likely to impair the health or morals of any such child . . . shall be guilty of a class C felony.ā
The trial court sentenced the defendant to fifteen years imprisonment, suspended after eight years, and five years probation for the conviction of kidnapping in the second degree, three years imprisonment for the conviction of unlawful restraint in the first degree, and three years imprisonment for the conviction of risk of ipjury to a child. All sentences were to run concurrently.
The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes Ā§ 51-199 (c) and Practice Book Ā§ 65-1.
In Luurtsema, we rejected a claim identical in all material respects to the claim that the defendant raises in the present case, namely, that a defendant may not be convicted of the crime of kidnapping when the restraint used in the commission of that offense is merely incidental to the commission of the crime of sexual assault. See State v. Luurtsema, supra, 262 Conn. 200, 202. This court first rejected a similar claim in State v.
The defendant claims that, under the construction of the kidnapping statutes that we adopt in the present case, he is entitled to a judgment of acquittal on the kidnapping count. For the reasons that we set forth in part I of this opinion, we conclude that the defendant is entitled to a new trial on the kidnapping count, not a judgment of acquittal on that count.
In accordance with our policy of protecting the privacy interests of the victims of certain crimes, including risk of injury to a child, we decline to
In the stateās original information, the defendant also was charged with breach of the peace in the second degree and interfering with an officer.
The crime of kidnapping generally carries more severe penalties than the crimes of assault, sexual assault and robbery. For example, kidnapping in the first degree is a class A felony that is punishable by a term of imprisonment of not less than ten years and not more than twenty-five years; see General Statutes Ā§Ā§ 53a-92 (b) and 53a-35a; whereas assault in the first degree, robbery in the first degree, and most offenses of sexual assault in the first degree are class B felonies that are punishable by a maximum term of imprisonment of twenty years. See General Statutes Ā§Ā§ 53a-59 (b), 53a-70 (b), 53a-134 (b) and 53a-35a. Similarly, the crime of kidnapping in the second degree is a class B felony that is punishable by a term of imprisonment of not more than twenty years; see General Statutes Ā§Ā§ 53a-94 (b) and 53a-35a; whereas robbery in the second degree and most offenses of sexual assault in the second degree are class C felonies that are punishable by a maximum term of imprisonment of ten years; see General Statutes Ā§Ā§ 53a-71 (b), 53a-135 (b) and 53a-35a; and assault in the second degree is a class D felony that is punishable by a maximum term of five years imprisonment. See General Statutes Ā§Ā§ 53a-60 (b) and 53a-35a. Moreover, under our current interpretation of the kidnapping statutes, conduct that is sufficient to form the basis of a conviction for a particular degree of assault, sexual assault or robbery also may form the basis of a conviction for a higher degree of kidnapping. For example, under General Statutes Ā§ 53a-72a (a) (1) (A), a person is guilty of sexual assault in the third degree, generally a class D felony punishable by no more than five years imprisonment; see General Statutes Ā§ 53a-35a; when that person compels another person to submit to sexual contact by the use of force against such other person. The very same
The defendant also raised two other claims with respect to his conviction of kidnapping in the second degree, neither of which we address in light of our determination that the defendant is entitled to a new trial on that charge. In particular, the defendant claims that (1) Ā§ 53a-94, as interpreted by this court, is unconstitutionally vague as applied to the facts of this case, and (2) the trial court improperly instructed the jury on the element of intent. We do not address the defendantās first claim because that claim implicates this courtās prior interpretation of our kidnapping statutes, which
We do not suggest, of course, that our criminal laws do not serve the important function of general deterrence. We also do not dispute the notion that the public is entitled to fair notice of the conduct that is prohibited by our criminal laws. It is difficult to imagine, however, that a person, before committing an intentional assault, sexual assault or robbery, would stop to think about how to avoid also committing the crime of kidnapping.
Under that 1993 amendment, three years of the sentence imposed for a violation of Ā§ 53a-94 (a) shall not be suspended or reduced. Public Acts 1993, No. 93-148, Ā§ 1, codified at General Statutes Ā§ 53a-94 (b).
We note that, following this courtās opinion in State v. Luurtsema, supra, 262 Conn. 179, three bills were introduced proposing amendments to the statutory definition of kidnapping in direct response to that decision. See An Act Concerning Asportation in Kidnapping Cases, Raised Bill No. 1284, 2005 Sess. (proposing that Ā§ 53a-91 [2] be amended to provide that ā āabductā means to . . . carry away a person under coercion and restraint to another place with intent to prevent . . . such personās liberation and to a degree that is not incidental to the commission of another crimeā); An Act Concerning Asportation in Kidnapping Cases, Senate Bill No. 530, 2005 Sess. (proposing ā[t]hat [General Statutes Ā§Ā§] 53a-91 to 53a-94a ... be amended to provide that the crime of kidnapping requires substantial restriction on movement of the victimā); An Act Coneming Asportation in Kidnapping Cases, Raised Bill No. 1159, 2003 Sess. (proposing that Ā§ 53a-91 [2] be amended to provide that ā āabductā means to . . . carry away a person under coercion and restraint to another place with intent to prevent . . . such personās liberation and to a degree that is not incidental to the commission of another crimeā). None of these bills, however, was reported out of committee. The state contends that the failure of these proposals in committee is evidence that the legislature perceived them as lacking in merit. The stateās assertion is not persuasive. As this court previously has observed, ā[w]e are reluctant to draw inferences regarding legislative intent from the failure of a legislative committee to report a bill to the floor . . . because in most cases the reasons for that lack of action remain unexpressed and thus obscured in the mist of committee inactivity.āā In re Valerie D., 223 Conn. 492, 518 n.19, 613 A.2d 748 (1992); accord Conway v. Wilton, supra, 238 Conn. 679-80. Furthermore, āwe are unaware of any occasion in which this court has relied on a legislative committeeās rejection of a proposed bill as evidence of the intent of the entire General Assembly, which never voted on or discussed the proposal.ā Ricigliano v. Ideal Forging Corp., 280 Conn. 723, 741-42, 912 A.2d 462 (2006); see also Bob Jones University v. United States, 461 U.S. 574, 600, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983) (āunsuccessful attempts at legislation are not the best of guides to legislative intentā [internal quotation marks omitted]); cf. In re Valerie D., supra, 518 n.19 (although no inference of legislative intent generally may be drawn from failure of legislative committee to report bill to floor, weight should be given to legislative committeeās rejection of proposed bill when [1] committee adopted second proposed bill that took directly contrary approach to first bill, [2] both bills were considered together, [3] legislative history of committee hearings contained testimony regarding relative merits and demerits of two disparate approaches represented in bills, and [4] legislature passed bill endorsed by committee).
We set forth these cases subsequently in this opinion.
For example, the highest courts of the states of New York and California have overruled their prior precedent in adopting the interpretation of their kidnapping statutes that the defendant urges us to adopt for purposes of this stateās kidnapping statutes. See People v. Daniels, 71 Cal. 2d 1119, 1139, 459 P.2d 225, 80 Cal. Rptr. 897 (1969) (overruling People v. Chessman, 38 Cal. 2d 166, 238 P.2d 1001 [1951], cert. denied, 343 U.S. 915, 72 S. Ct. 650, 96 L. Ed. 1330 [1952]); People v. Levy, 15 N.Y.2d 159, 164-65, 204 N.E.2d 842, 256 N.Y.S.2d 793 (overruling People v. Florio, 301 N.Y. 46, 92 N.E.2d 881 [1950]), cert. denied, 381 U.S. 938, 85 S. Ct. 1770, 14 L. Ed. 2d 701 (1965). In Daniels, moreover, the California Supreme Court expressly rejected the claim that the California legislature effectively had acquiesced in the holding in Chessman and, therefore, that that holding should not be revisited. People v. Daniels, supra, 1127-28. After acknowledging that the legislature had not seen fit to amend the California kidnapping statutes, the court in Daniels nevertheless concluded that it āshould not hesitate to reconsider [its] prior construction of [legislative] intent whenever such a course is dictated by the teachings of time and experience.ā Id., 1128.
We note, moreover, that this court previously has indicated that there may be factual scenarios in which a kidnapping conviction would constitute āan absurd and unconscionable resultā because of the limited duration of
In rejecting our reasons for concluding that the doctrine of legislative acquiescence is not an absolute bar to reconsidering our prior interpretation of this stateās kidnapping statutes, the dissent purports to distinguish factu
For example, a person commits the crime of kidnapping in the second degree in violation of Ā§ 53a-94, the crime of which the defendant in the present case was convicted, āwhen he abducts another person." (Emphasis added.) General Statutes Ā§ 53a-94 (a). By contrast, a person commits the crime of unlawful restraint in the second degree āwhen he restrains another person.ā (Emphasis added.) General Statutes Ā§ 53a-96 (a). We also note that the existence of certain aggravating circumstances marks the difference between the crimes of unlawful restraint in the second degree and unlawful restraint in the first degree. Compare General Statutes Ā§ 53a-95 (a) with General Statutes Ā§ 53a-96 (a). A person commits the offense of unlawful restraint in the first degree when he restrains another person āunder circumstances which expose such other person to a substantial risk of physical injury." General Statutes Ā§ 53a-95 (a). The existence of certain aggravating circumstances also distinguishes the crimes of kidnapping in the first degree and kidnapping in the second degree. Thus, under General Statutes Ā§ 53a-92 (a), a person commits kidnapping in the first degree when āhe abducts another personā and ā(1) [hjis intent is to compel a third person (A) to pay or deliver money or property as ransom or (B) to engage in other particular conduct or to refrain from engaging in particular conduct; or (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually; or (B) accomplish or advance the commission of a felony; or (C) terrorize him or a third person; or (D) interfere with the performance of a government function.ā
The disparities in punishment are comparable for the first degree offenses. Unlawful restraint in the first degree is a class D felony; General Statutes Ā§ 53a-95 (b); punishable by a term of imprisonment of not less than one year and not more than five years; see General Statutes Ā§ 53a-35a; whereas kidnapping in the first degree is a class A felony; General Statutes Ā§ 53a-92 (b); punishable by a term of imprisonment of between ten and twenty-five years. See General Statutes Ā§ 53a-35a.
As we previously noted, however; see footnote 17 of this opinion; this court has recognized that āthere are conceivable factual situations in which charging a defendant with kidnapping based [on] the most minuscule [movement or duration of confinement] would result in an absurd and unconscionable result . . . .ā State v. Luurtsema, supra, 262 Conn. 203-204. A challenge to a kidnapping conviction predicated on such miniscule movement or duration of confinement remains viable on constitutional grounds under the vagueness doctrine. See id., 204.
Justice Borden ultimately agreed with the majority in Luurtsema, however, that any challenge to a kidnapping conviction based on āthe arguable slightness of the movement and brevity of the forcible restraintā must be confined āto a claim that the kidnapping statute [is] unconstitutionally vague as applied to the facts of the particular caseā; State v. Luurtsema, supra, 262 Conn. 205 (Borden, J., concurring); a claim that Luurtsema had not raised on appeal. Id., 206 (Borden, J., concurring).
Although, at first glance, it may appear that an abduction within the meaning of Ā§ 53a-91 (2) (B) may be distinguished from a restraint for purposes of Ā§ 53a-91 (1) by virtue of the former subdivisionās requirement of the threatened or actual use of physical force or intimidation, a closer reading of the statutory definition of ārestrainā demonstrates that the distinction is largely illusory. Under Ā§ 53a-91 (1), the term ārestrainā contemplates the unlawful and nonconsensual movement or confinement of a victim. Although it is true that a restraint may be accomplished by ādeceptionā; see General Statutes Ā§ 53a-91 (1) (A); in the vast majority of cases, the restraint will be achieved through the use of force or intimidation. Indeed, a review of appellate decisions upholding convictions for unlawful restraint against
General Statutes (1887 Rev.) Ā§ 1416 provides: āEvery person who shall kidnap, or fraudulently decoy out of this State, any person, or shall, without lawful authority, arrest or imprison any person, with intent to have him carried out of this State, or to be in any way held in service against his will, shall be fined not more than five hundred dollars, and imprisoned not more than three years.ā
General Statutes (1902 Rev.) Ā§ 1162 provides: āEvery person who shall kidnap, or fraudulently decoy any person out of this state, or shall, maliciously and without lawful authority, arrest or imprison any person with intent to have him carried out of this state, or in any way detained against his will; and every person who shall fraudulently or forcibly restrain any person of his liberty with intent to demand a ransom for his release, or who shall thereafter threaten physically to injure or to kill such person so fraudulently or forcibly restrained of his liberty, in case a demand for such ransom for his release is not complied with, shall be imprisoned not more than thirty years.ā
General Statutes (1949 Rev.) Ā§ 8372 provides: āAny person who shall kidnap or fraudulently decoy any person into or out of this state or who shall, maliciously and without lawful authority, arrest or imprison any person with intent to have him carried out of this state or in any way detained against his will, and any person who shall fraudulently or forcibly restrain any person of his liberty, for revenge or with intent to demand a ransom, reward, concession or other valuable thing for his release, or who, with such intent, shall use any force or violence or threaten to harm or injure such person, or to fraudulently or forcibly restrain him of his liberty, shall, if death result to the person so kidnapped or restrained of his liberty, be subject to the penalties provided by the general statutes for the crime of murder, and proof of wilful, deliberate and premeditated killing or of a specific intent to kill in such case shall not be required of the state. If death shall not result to the person so kidnapped or restrained of his liberty, the person convicted of such crime shall be imprisoned in the State Prison not more than fifty years. Any person who shall conspire with another to violate
The dissent identifies several differences between this stateās kidnapping statutes and New Yorkās kidnapping statutes, and then asserts that those differences counsel against any reliance on New York case law interpreting the New York statutory scheme. The dissent fails to explain, however, why those differences diminish the persuasive force of those New York cases.
The dissent asserts that the statutory definitions underlying unlawful restraint and kidnapping clearly and unambiguously distinguish the former as a general intent crime and the latter as a specific intent crime, and, as a consequence, an examination of the history and circumstances surrounding the enactment of these provisions is inappropriate. The dissent reaches the conclusion that unlawful restraint is a general intent crime by reading the term āintentionallyā in General Statutes Ā§ 53a-91 (1) as applying only to that element of the offense that prohibits conduct designed āto restrict a personās movements ... by moving him ... or by confining him . . . .ā Under General Statutes Ā§ 53a-5, however, when a statute defining a criminal offense uses a term such as āintentionallyā to specify a requisite mental state, that term āis presumed to apply to every element of the offense unless an intent to limit its application clearly appears.ā (Emphasis added.) Applying the directive of Ā§ 53a-5 to Ā§ 53a-91 (1), we conclude that āintentionallyā also applies to the element of the offense of unlawful restraint that requires a particular result, namely, that the restriction must āinterfere substantially with [a personās] liberty . . . .ā (Emphasis added.) General Statutes Ā§ 53a-91 (1). As the dissent correctly observes, ā]w]hen the elements of a crime include a defendantās intent to achieve some result additional to the act, the additional language distinguishes the crime from those of general intent and makes it one requiring a specific intent.ā (Internal quotation marks omitted.) Because an unlawful restraint involves the restriction of another personās movements with the intent to interfere substantially with that personās liberty, the crime of unlawful restraint, like kidnapping, is a specific intent crime.
This interpretation is buttressed by several other considerations. First, to be an unlawful restraint, the prohibited restriction of movement must be
Second, ā[cjriminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant. . . . [U]nless a contrary interpretation would frustrate an evident legislative intent, criminal statutes are governed by the fundamental principle that such statutes are strictly construed against the state.ā (Citation omitted; internal quotation marks omitted.) State v. Velasco, 253 Conn. 210, 220, 751 A.2d 800 (2000); see also State v. Skakel, supra, 276 Conn. 675 (ā[s]trict construction is a means of assuring fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, concerning actions that would expose them to liability for penalties and what the penalties would beā [internal quotation marks omitted]). Although we believe that applying Ā§ 53a-5 to Ā§ 53a-91 (1) makes it clear that unlawful restraint is a specific intent crime, the rule of strict construction applicable to criminal statutes indicates that any arguable ambiguity should be resolved against the broad reading of Ā§ 53a-91 (1) that the dissent advocates.
Finally, the dissentās conclusion also is inconsistent with this courtās analysis in State v. Foster, 202 Conn. 520, 538-40, 522 A.2d 277 (1987). In Foster, the defendant, Michael Foster, challenged the portion of the trial courtās jury instruction defining the term ārestrainā for purposes of Ā§ 53a-91 (1), claiming that āthe court inadequately explained that the state must prove that [Foster] had to have the conscious objective to interfere substantially with the victimās libertyā because, according to Foster, the language that the court used had āpermitted the jury to find [Foster] guilty even if the interference was nothing more than an unintended by-product of [Fosterās] intentional acts.ā (Emphasis added.) Id., 539. In rejecting Fosterās argument that the courtās charge did not satisfy the requirement that a defendant act with the specific intent to effect the prohibited result, we impliedly acknowledged that a restraint is unlawful if, and only if, a defendantās conscious objective in moving or confining the victim is to achieve that prohibited result, namely, to restrict the victimās movements in such a manner as to interfere substantially with his or her liberty. See id., 539-40; see also State v. Youngs, 97 Conn. App. 348, 363, 904 A.2d 1240 (characterizing unlawful restraint as specific intent crime), cert. denied, 280 Conn. 930, 909 A.2d 959 (2006); State v. Phu Dinh Le, 17 Conn. App. 339, 343, 552 A.2d 448 (1989) (same); State v. Davis, 13 Conn. App. 667, 672, 539 A.2d 150 (1988) (same).
The dissent maintains that our holding āinvades the purview of our stateās attorneysā and āappears to overlook that defining crimes is the responsibility of our legislature,ā not this court. The dissent misapprehends our reasoning. Simply stated, we merely have noted that our prior interpretation of the kidnapping statute inevitably has led to results that we do not believe the legislature anticipated when it enacted the kidnapping statutes. Of course, we frequently, and appropriately, take this consideration into account in construing statutes. See, e.g., Gormbard v. Zurich Ins. Co., 279 Conn. 808, 829, 904 A.2d 198 (2006) (rejecting proposed construction of statute on ground that it would lead to result that legislature most likely did not intend); Bergeson v. New London, 269 Conn. 763, 782, 850 A.2d 184 (2004) (same).
A minority of jurisdictions adhere to the view that any movement or confinement of a victim is sufficient to support a kidnapping conviction. See, e.g., State v. Padilla, 106 Ariz. 230, 232, 474 P.2d 821 (1970); Ellis v. State, 211 Ga. App. 605, 608, 440 S.E.2d 235 (1994); Wilson v. State, 253 Ind. 585, 592, 255 N.E.2d 817 (1970); State v. Smith, 228 Mont. 258, 263-64, 742 P.2d 451 (1987); State v. Maeder, 229 Neb. 568, 572-73, 428 N.W.2d 180 (1988); State v. Motsko, 261 N.W.2d 860, 865-67 (N.D. 1977); Hines v. State, 75 S.W.3d 444, 447-48 (Tex. Crim. App. 2002); Harris v. State, 78 Wis. 2d 357, 366-67, 254 N.W.2d 291 (1977).
We reiterate, however, that kidnapping convictions involving miniscule restraints remain subject to challenge under the vagueness doctrine. See footnote 17 of this opinion.
The dissent asserts that our interpretation of the kidnapping statutes represents an ā[attempt] to devise a means by which a jury must determine whether the act of restraining was āincidentalā to the commission of the other crime . . . .ā In making this assertion, the dissent suggests that we have invented the approach that we have adopted in this opinion. In doing so, the dissent ignores the fact that the courts of a substantial majority of jurisdictions previously have adopted that interpretative approach. Indeed, the dissent gives no weight at all to the fact that our holding, which, as we have indicated, aptly has been characterized as representing the modem approach, reflects the view of the majority of courts that have considered the issue.
The fact that the legislature intended this result is borne out by the language of Ā§ 53a-92 (a) (2), which defines kidnapping in the first degree as an abduction coupled with an intent to engage in certain other unlawful conduct. See footnote 19 of this opinion.
We acknowledge that it is not clear from the evidence why the defendant accosted and restrained the victim. Nevertheless, on the basis of the evidence presented, a juror reasonably could conclude that the defendantās restraint of the victim was not incidental to his assault of the victim. In other words, a juror reasonably could find that the restraint had significance independent of the assault. The facts of this case, therefore, are readily distinguishable from the facts of other cases in which the restraint imposed on the victim
As we noted previously, the defendant ultimately was not tried for assault. We nevertheless conclude that a defendant is entitled to an instruction that he cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental to the assault, regardless of whether the state elects to try the defendant for assault, because the facts reasonably would support an assault conviction. See, e.g., Alam, v. State, supra, 776 P.2d 350 (concluding restraint at issue was incidental to uncharged attempted sexual assault); People v. Rappuhn, 78 Mich. App. 348, 354, 260 N.W.2d 90 (1977) (court improperly failed to give incidental instruction with reference to uncharged offense of gross indecency); People v. Jackson, 63
The trial court instructed the jury that the information that the stateās attorney filed ādoes not allege a sexual assault, so I want you to be aware of that. There is no charge of sexual assault in this information, and itās . . . incumbent upon me to so advise here, and thus I have advised you . . . .ā
In support of this claim, the defendant refers to, inter alia, several comments that the stateās attorney made during jury selection that, according to the defendant, were derisive of defense counsel. The defendant concedes, however, that, with one minor exception, the challenged comments all were made in the presence of jurors who ultimately were excused. Because there is no possibility that those remarks affected the defendantās right to a fair trial, we need not address them.
Specifically, the defendant refers to a comment that the stateās attorney allegedly made during trial to one or more persons in the courtroom audience following defense counselās request that the jury be excused. According to the defendant, the stateās attorney said, ā[I]tās just typical bullshit, relax.ā The defendant also claims that the stateās attorney muttered the words, āOh God,ā under his breath when defense counsel sought permission to recall a witness.
The court stated: āIām just going to say this one more time. I donāt want any more faces. I donāt want any more nonsense going on. I want everybody to conduct themselves in a professional manner here. When I make rulings and I allow people to ask questions or not ask questions, no more faces, no more nonsense. Is that understood by everybody in this courtroom?ā Both counsel responded in the affirmative. The court continued: āBecause if I see any more laces about my rul[ings] or what I allow or what I donāt allow, Iām going [to] take the appropriate action. And trust me when I tell you, gentlemen, you donāt [want] me to take the appropriate action if I think youāre misbehaving in a courtroom. That is something I do not tolerate.ā The court subsequently reiterated: āI have warned both counsel now. If there [are] any more antics in this courtroom that I become aware of or I see, counsel [was] warned just a few moments ago about the faces that were being made with regard to rulings I was making. If that goes on again, sanctions will be issued.ā
At the close of court on the day in question, the court observed that it had addressed the claims of improper conduct and encouraged counsel to
We, of course, do not condone such conduct, by prosecutors or any other attorneys, and we acknowledge that, depending on its severity, conduct of the sort alleged by the defendant could result in a new trial, disciplinary sanctions against the attorney or both. In the present case, however, the record is insufficient to support the defendantās allegations against the stateās attorney.
The defendant also refers to certain of the stateās attorneyās comments, made in response to defense counselās argument concerning the kidnapping charge, that relate only to that charge. Although we do not believe that those comments were improper, we need not address them in light of our conclusion that the defendant is entitled to a new trial on the kidnapping count.
The defendant directs us to the following exchange between the stateās attorney and Dahlgren:
āQ. You can remember this person from a yearāover a year ago asking for cigarettes?
āA. He asked for a cigarette that night.
āQ. He did?
āA. All the time.
āQ. And you can remember that night specifically?
āA. Yeah.
āQ. Where did you write it down?
āA. I donāt need to write it down.
āQ. You donāt need to?
āA. Uh-huh ....
āQ. You didnāt write it in a journal?
āA. No.
āQ. Palm pilot?
āA. No.
āQ. Calendar?
āA. No.
āQ. You can specifically remember aā
āA. I remember, yes, I remember.
āQ. You can specifically rememberā
āA. I remember that totallyā
āQ. Can I finish my question?
āA. Sure.
āQ. You can specifically remember a person at a pool party asking you for a cigarette fourteen months ago?
āA. Yes, because he always asked me for cigarettes.
* * *
āQ. And how many people asked you for cigarettes?
āA. Just him.
āQ. Just him out of 200 people? And you could specifically remember that?
āA. A lot of people donāt smoke anymore. I donāt even smoke that much.
āQ. And what time did he ask you for this cigarette?
āA. All night he was taking them.
*563 āQ. Really?
āA. Yes.
āQ. Did you ever tell Mm to go get your own pack?
āA. I did.
āQ. And how many cigarettes did he ask for?
āA. Seven or eight, and then I left them on the table, and I think he took a couple more.
āQ. And you can remember tMs from . . . fourteen months ago?
āA. Yes, because I find that to be very annoying.ā
The defendant relies primarily on the following colloquy between the stateās attorney and Dahlgren:
āQ. And the [defendantās] mother obviously told you what to say, right?
āA. Well, no.
āQ. Well, no?
āA. Iām just winging it. I mean, youāre asking me questions and Iām answering as best as I [can].
āQ. And the [defendantās] mother didnāt tell you what to say here, right?
āA. No.
āQ. And the defense attorney didnāt tell you what to say?
āA. No.
āQ. And no one toldāno one went over yourā
āA. Sir, this is what happened. Iām telling you the Godās honest truth.
āQ. No one went over your testimony beforeā
āA. No.
āQ. Today?
āA. No.
āQ. Today is the first time youāre doing this?
āA. This is the first time.
āQ. And no one helped you with your testimony coming in here today?
āA. No.ā
We note that the trial court sustained defense counselās objection to this question.
Indeed, the state concedes that at least some of the stateās attorneyās questions were improper.
We do note, however, that the stateās attorney objected vigorously to the defendantās use of Dahlgren as a witness, characterizing her last minute disclosure as a āsurpriseā and a ācomplete ambush . . . The stateās attorney further complained that he did not know what Dahlgren would be testifying about and that he had been unable to prepare any questions for her. The stateās attorney therefore requested that the court afford him latitude in questioning Dahlgren, and the court agreed that some leeway was appropriate under the circumstances.
The defendant alternatively claims that, even if we conclude that the claimed prosecutorial improprieties do not rise to the level of a due process violation, we nevertheless should reverse the trial courtās judgment under our supervisory powers. āWe previously have held that we may invoke our inherent supervisory authority in cases in which prosecutorial [impropriety] is not so egregious as to implicate the defendantās . . . right to a fair trial . . . [but] when the prosecutor deliberately engages in conduct that he or she knows, or ought to know, is improper. . . . We have cautioned, however, that [s]uch a sanction generally is appropriate . . . only when the [prosecutorās] conduct is so oifensive to the sound administration of justice that only a new trial can effectively prevent such assaults on the integrity of the tribunal. . . . Accordingly, in cases in which prosecutorial [impropriety] does not rise to the level of a constitutional violation, we will exercise our supervisory authority to reverse an otherwise lawful conviction only when the drastic remedy of a new trial is clearly necessary to deter the alleged prosecutorial [impropriety] in the future.ā (Citations omitted; internal quotation marks omitted.) State v. James G., supra, 268 Conn. 422-23. Because the improper conduct in the present case was neither egregious nor representative of a pattern of deliberate misconduct, we reject the defendantās supervisory authority claim.
Because the defendant did not preserve this claim at trial, he seeks to prevail under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), pursuant to which āa defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.ā (Emphasis in original.) Id., 239-40. Although the record is adequate for our review of the defendantās unpreserved constitutional claim, we conclude that the defendant has failed to demonstrate a constitutional violation.
The trial court instructed the jury on intent as follows: āWhat Iād like to do now is discuss with you a concept or definition which is critical and integral to your understanding and analysis of the elements or parts of some of the crimes charged.
āThat concept or definition, if you will, is that of intent. The word intent, what does it mean and how do you determine intent?
āIntent relates to the condition of mind [of one] who commits an act, his purpose in doing the act. As defined by statute, a person acts intentionally with respect to [a] result or conduct when the conscious objective is to engage in such conduct.
āNow, what a personās purpose or intent has been usually is to be determined by inference by you. Nobody is able to look into anotherās mind and see a specific intent. The only way a jury can ordinarily determine what a personās purpose was or intent was other than from that personās own statements and testimony is by determining what the conduct was and what the circumstances were surrounding the conduct. And, of course, from that, you may infer the intent or purpose. To draw such an inference is not only your purpose but your proper function as members of the jury.ā
The trial court instructed the jury as follows on the issue of the defendantās alleged intoxication: āIf you find the defendant was intoxicated at the time of the crimes, you may take that fact into consideration in determining whether he was in such a state of intoxication as to be incapable of forming the required specific intent which is the necessary element for the commission of the crimes of kidnapping and unlawful restraint.
āHowever, if you believe the defendant, although intoxicated, was stiE capable of possessing a specific criminal intent, then his responsibility is the same as if he were not intoxicated.ā
The trial court instructed the jury on unlawful restraint in the first degree as follows: āUnder the second count, the defendant is charged with unlawful restraint in the first degree. In that regard, our Penal Code provides that a person is guilty of unlawful restraint in the first degree when he restrains another person under circumstances which expose that other person to a substantial risk of physical injury.
āFor you to find the defendant guilty of this charge, the state must prove the following elements beyond a reasonable doubt: one, that the defendant restrained the victim; and two, that the restraint exposed the victim to a substantial risk of physical injury.
āRestraint, as we just discussed, means to restrict a personās movements intentionally and unlawfully in such a manner so as to substantially interfere with her liberty by confining her without her consent.
āThe state must also prove beyond a reasonable doubt that the defendant restrained the victim under circumstances that exposed the victim to a substantial risk of physical injury. Physical injury means the impairment of physical condition or pain. Thatās what it means, the impairment of physical condition or pain. A substantial risk of physical injury means considerable risk of physical injury.
āSo, in summary once again, the state must prove beyond a reasonable doubt that the defendant restrained the victim and that such restraint exposed the victim to a substantial risk of physical injury.ā