State v. Sanseverino
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE OF CONNECTICUT v. PAOLINO SANSEVERINO (SC 17786) (SC 17787) Rogers, C. J., and Norcott, Katz, Palmer, Vertefeuille, Zarella and Schaller, Js. Argued October 16, 2007 officially released May 19, 2009 Leon F. Dalbec, Jr., senior assistant state s attorney, with whom, on the brief, were Scott J. Murphy, state s attorney, and Paul Rotiroti, assistant state s attorney, for the appellant in Docket No. 17786, appellee in Docket No. 17787 (state). Jon L. Schoenhorn, for the appellant in Docket No. 17787, appellee in Docket No. 17786 (defendant). Opinion PALMER, J. This case comes to us on the state s motion for reconsideration en banc. In State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008),1 this court concluded, inter alia, that the defendant, Paolino Sanseverino, was entitled to reversal of his first degree kidnapping conviction in light of our decision in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008).2 In particular, we determined, in accordance with Salamon,3 that the defendant was entitled to a jury instruction that he could not be convicted of the crime of kidnapping unless the jury found beyond a reasonable doubt that the restraint involved in the commission of that crime was not merely incidental to and necessary for the commission of another crime against the victim, in this case, sexual assault in the first degree. State v. Sanseverino, supra, 624 26. We also held that the state was barred from retrying the defendant on the kidnapping charge because we concluded, on the basis of our review of the record, that no reasonable jury could have found that the restraint used by the defendant in the commission of the kidnapping was not incidental to and necessary for the commission of the sexual assault. See id., 625. Following the release of our opinion in Sanseverino, the state filed a motion for reconsideration en banc, which we granted.4 In its motion,5 the state first contends that this court improperly barred the state from seeking to retry the defendant for kidnapping in the first degree by ordering that a judgment of acquittal be rendered on that charge. Second, the state contends that, if it elects not to retry the defendant for kidnapping, it nevertheless is entitled to a judgment of conviction of unlawful restraint in the second degree under General Statutes § 53a-96 as a lesser included offense of kidnapping in the first degree. As this court recently has acknowledged; see State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008); the state is correct that, in Sanseverino, we improperly precluded the state from seeking to retry the defendant on the kidnapping charge. We therefore reverse that portion of our judgment in Sanseverino ordering that a judgment of acquittal be rendered on that charge. We also agree with the state that, as an alternative to retrying the defendant on the first degree kidnapping charge, it is entitled to a judgment of conviction of the lesser included offense of unlawful restraint in the second degree.6 The facts that the jury reasonably could have found are set forth in this court s opinion in State v. Sanseverino, supra, 287 Conn. 608. In June or July, 1998, the defendant, the owner of Uncle s Bakery in Newington, hired C to work in the bakery. . . . One day, toward the end of her shift, while she was alone with the defendant, the defendant asked C to take a box into the back room. The defendant followed C into the back room, grabbed her by her shoulders and pushed her against a wall and a metal shelving unit. She could not move because the defendant had one arm and his upper body pressed against her. The defendant pulled her shirt out of her pants, put his hand under her shirt and touched her breasts. She tried to push him away and told him three or four times to stop, but he told her that he could do whatever he wanted to [her] because he had friends in the Newington police department, and it would be [her] word against his. Nobody would believe [her]. He then unbuttoned her jeans, pulled them down and digitally penetrated her vagina. He unbuttoned his pants and pulled out his penis. He turned C around and held her down by the back of the neck, pinning her with her head between the shelving unit and the wall. He tried to insert his penis into her vagina, but because she kept moving around, he did not successfully penetrate her, although she did feel the pressure of him trying to insert himself. At that point, the buzzer rang at the front door, indicating that a customer had entered the store. The defendant turned C around, put his hand over her mouth, pushed her against the wall and told her to stay there and to be quiet. When the defendant left to assist the customer, C ran out of the bakery and went home. She never returned to the bakery. At home, C went into the bathroom, took off her clothes and showered. She later burned her clothing. She testified that her initial intention was to call the police but that when she got home, her boyfriend had three other people with him, and she did not want them to know, so she did not tell anyone or call the police at that time. She did not tell anyone what had happened to her until a couple of months later. C testified that after what happened, she was angry always, and if she was not working, she was sleeping. She said that she would not talk to anybody or let anybody touch her, and she would not let anybody be around her. Her boyfriend s mother, with whom C was residing, eventually asked her about her behavior and mood, and C finally broke down and told her what had happened at the bakery. On November 8, 1998, C contacted Peter Lavery, an officer with the Newington police department, to report that she had been sexually assaulted sometime in June or July, 1998, by the defendant at Uncle s Bakery. She gave a sworn statement of what had occurred. Later that same day, she contacted Lavery and said that she did not want to press charges against the defendant and did not want to go through any further investigation of the case because it would be too stressful for her to go to court and [to] go through the court proceedings. In August, 1999, however, after being informed that a second rape victim, G, had come forward, C agreed to reinstate her case against the defendant. C and G did not know each other. In the fall of 1998, G became a regular customer at Uncle s Bakery. In the spring of 1999, she approached the defendant about working at the bakery and was hired to work from 5 a.m. to 7:30 a.m. In May, 1999, as G started her shift at 5 a.m., she went into the back room of the bakery to get her apron. The defendant followed her in and grabbed her. She told him to get away and stop, to which the defendant replied, [you] know you want it, so stop. The defendant grabbed G s arms, pushed her against the wall, pinned her arms over her head with his arm, and pressed his body against [her body] so she could not move. She twice yelled at him to stop, but he did not. She testified that she became afraid and that she froze. While still keeping her pinned [with one hand], he pulled her pants down, then pulled his pants down. He inserted his penis inside her vagina and then, prior to climaxing, pulled out and ejaculated on the floor. The defendant let G go, and she went into the bathroom, locked herself in and did not come out again until she heard another person enter the bakery. G then came out of the bathroom, waited until her shift was over and went home. She threw away her clothes. She did not talk to anybody about what had happened because, she testified, she felt ashamed, dirty, cheap and scared because the defendant had threatened her. She testified that he had told her [on numerous occasions] that he was with the family, the mob, and that if [she] ever said anything . . . he would take care of [her] and [her] family. G continued to work at the bakery for about one week because she was afraid of the defendant. After one week, she . . . quit because she could [not] stand to see [the defendant] anymore. At some point, G told her former husband and her sister what had happened. She was advised not to say or do anything because it would cause a scandal and because her sister and her sister s husband were in the process of buying the business from the defendant. She testified that if she had said anything, they might have lost the business. In July, 1999, however, G reported the sexual assault when she found out that the defendant was smearing [her] name, saying that [she] was doing sexual favors for other men. This made her angry and determined that he s not going to get away with this. . . . The defendant subsequently was charged in connection with both incidents. Id., 613 16. Our opinion in Sanseverino also sets forth the following additional undisputed facts and procedural history. The state separately . . . charged the defendant with kidnapping in the first degree with respect to C and G. Prior to trial, upon agreement of the state, the trial court dismissed the charge of kidnapping in the first degree as to C, which the defendant claimed had been brought beyond the statute of limitations. The trial court denied the defendant s motion to have the charges relating to C and G tried separately pursuant to Practice Book § 41-18. At the close of the state s case-in-chief, the defendant moved for a judgment of acquittal, which the trial court also denied. During the presentation of his case, the defendant claimed that he had dated both C and G for a period of time and that any sex with [them] was consensual. The jury subsequently returned a verdict of guilty on all four counts of the substitute information: sexual assault in the first degree and attempt to commit sexual assault in the first degree as to C, and kidnapping in the first degree and sexual assault in the first degree as to G. The trial court sentenced the defendant to a total term of forty years imprisonment. The defendant appealed from the judgment of conviction to the Appellate Court. The Appellate Court determined that the trial court improperly had denied the defendant s motion to sever the charges relating to C and G, concluding that the defendant had been prejudiced substantially by the consolidation of the two cases, because viewed through the lens of our holding in State v. Ellis, 270 Conn. 337, 377, 852 A.2d 676 (2004), that the crime of sexual assault is inherently violent in nature, regardless of whether there is physical violence the two cases did not involve discrete and easily distinguishable factual scenarios. State v. Sanseverino, [98 Conn. App. 198, 205, 907 A.2d 1248 (2006)]. That court further concluded that this prejudice had not been cured by the trial court s instructions to the jury. Id., 206 208. It therefore reversed the defendant s conviction and remanded the case for new separate trials. Id., 208. The Appellate Court rejected, however, the defendant s contention that the kidnapping statute was void for vagueness as applied to the facts of his case. Id., 213. The Appellate Court determined that the amount of restraint applied to G was not minuscule and that all that is required under the kidnapping statute is a restriction of movement . . . with the intent to prevent the victim s liberation. Id. We thereafter granted the defendant s petition for certification to appeal [limited to the following issue]: Did the Appellate Court properly conclude that [General Statutes] § 53a-92 (a) (2) (A), kidnapping in the first degree, is not unconstitutionally vague as applied to the defendant s conduct? . . . State v. Sanseverino, 280 Conn. 945, 946, 912 A.2d 481 (2006) . . . . [We also] granted the state s petition for certification to appeal on the following issue: Whether the Appellate Court properly held that the trial court improperly denied the defendant s motion to sever the two cases charged against him? State v. Sanseverino, 280 Conn. 946, 912 A.2d 481 (2006). State v. Sanseverino, supra, 287 Conn. 616 18. With respect to the state s claim on appeal, we concluded that, because the evidence in both cases would have been cross admissible at separate trials to demon- strate a common scheme or plan on the part of the defendant, the Appellate Court improperly determined that the defendant had been unfairly prejudiced by the trial court s denial of his motion to sever the charges concerning the two victims. Id., 628 34. With respect to the defendant s claim on appeal that § 53a-92 (a) (2) (A) is unconstitutionally vague, we concluded that the defendant was entitled to reversal of his first degree kidnapping conviction on a different, nonconstitutional ground, namely, that the jury had not been instructed, as required by State v. Salamon, supra, 287 Conn. 547 50, that it could not find the defendant guilty of kidnapping in the first degree unless it first found beyond a reasonable doubt that the restraint used to commit the crime of kidnapping in the first degree was not merely incidental to and necessary for the commission of the crime of sexual assault in the first degree. State v. Sanseverino, supra, 287 Conn. 620, 623 24; see footnote 3 of this opinion. We also concluded that the defendant was entitled to a judgment of acquittal on the kidnapping charge because our review of the evidence indicated that no reasonable jury could have found the defendant guilty of kidnapping in light of our holding in Salamon. State v. Sanseverino, supra, 624 26. We expressly noted, moreover, that the state ha[d] not requested that we order the trial court to [render] a judgment of conviction of unlawful restraint in the second degree . . . as a lesser included offense of kidnapping. Therefore, we . . . express[ed] no opinion on whether the state might be entitled to such relief and we reserve[d] judgment on whether to consider that issue should the state raise it in a postappeal motion. (Citation omitted.) Id., 625 26 n.16. Following the issuance of our opinion in Sanseverino, the state filed a motion for reconsideration en banc in which it claims that, by ordering a judgment of acquittal with respect to the defendant s kidnapping conviction, we improperly barred the state from retrying the defendant on that charge.7 In that motion, the state contends that, as Justice Zarella had maintained in his dissent in Sanseverino; id., 648 57 (Zarella, J., dissenting); because we reversed the defendant s kidnapping conviction on the ground of instructional error, and not on the ground of evidentiary insufficiency, the proper remedy is a new trial on the kidnapping charge before a properly instructed jury, and not a judgment of acquittal on that charge. The state also claims that it is entitled to the option of having the trial court render a judgment of conviction of unlawful restraint in the second degree as a lesser included offense of kidnapping in the first degree. The state maintains that this is a proper alternative to a new trial on the charge of kidnapping in the first degree because the jury, having found the defendant guilty of that offense, necessarily found that the state had satisfied all of the elements of the lesser included offense of unlawful restraint in the second degree. The state further maintains that, under the circumstances of this case, it would not be unfair to the defendant in any way for the trial court to impose a judgment of conviction of that lesser offense. We address each of these claims in turn. I With respect to the issue of our remand in Sanseverino following our reversal of the defendant s conviction of kidnapping in the first degree, we held that, in light of our recent decision in State v. Salamon, supra, 287 Conn. 509, the defendant was entitled to a judgment of acquittal on that charge. State v. Sanseverino, supra, 287 Conn. 625 26. We explained: Under the facts of [this] case, no reasonable jury could have found the defendant guilty of kidnapping in the first degree on the basis of the evidence that the state proffered at trial. . . . [T]he evidence clearly establishe[d] that the defendant restrained G solely for the purpose of sexually assaulting her. Although we have carefully scrutinized the record, transcript, exhibits and briefs, we have found no evidence that the defendant restrained G to any greater degree than that necessary to commit the sexual assault. G walked into the back room of the bakery to get an apron. The restraint occurred thereafter when the defendant grabbed G from behind and pushed her against the wall, pinning her arms over her head with his arm and pressing his body against [her body] to keep her from moving. These actions were clearly undertaken solely for the purpose of allowing the defendant to initiate, and to keep G from moving away from, his sexual advances. None of the restraint that the defendant applied to G was for the purpose of preventing her from summoning assistance nor did it significantly increase the risk of harm to G outside of that created by the assault itself. The defendant released G immediately after he had ejaculated. For these reasons, we conclude that no reasonable jury could have [found] the defendant [guilty] of a kidnapping in light of our holding in Salamon. 8 (Citation omitted.) Id., 624 25. In his dissent in Sanseverino, Justice Zarella maintained that, although our holding in Salamon mandated reversal of the defendant s kidnapping conviction in Sanseverino, that result was compelled not because of evidentiary sufficiency but because the defendant had not received the benefit of the jury instruction that Salamon requires. Id., 649 51 (Zarella, J., dissenting). Justice Zarella further explained that, because Salamon was decided after the conclusion of the trial in the present case, and because this court previously had rejected the interpretation of our kidnapping statutes that we adopted in Salamon, the state could not possibly have anticipated our ruling in Salamon, and, therefore, we [could not] know from the record . . . whether there was additional evidence that the state could have proffered at trial to support a kidnapping charge under the new Salamon paradigm. (Emphasis added.) Id., 657 (Zarella, J., dissenting). Justice Zarella concluded, therefore, that, to the extent that the state could adduce evidence sufficient to meet the Salamon test, it was entitled to retry the defendant on the kidnapping charge. Id., 658 (Zarella, J., dissenting). The majority in Sanseverino responded to Justice Zarella as follows: Contrary to [Justice Zarella s] assertion that the state could have proffered additional evidence . . . to support the kidnapping charges had it had knowledge of the rule announced in Salamon, we have found nothing in the record to indicate that there was any such evidence. . . . In the absence of any such evidence, it strains the imagination to conceive of a situation in which the state would decline to proffer relevant and material evidence in a criminal prosecution [in which] it bears the burden of proving every element of the crimes charged beyond a reasonable doubt. Id., 625 26 n.16. Recently, in State v. DeJesus, supra, 288 Conn. 418, this court reconsidered the question that we had addressed in Sanseverino, namely, what is the appropriate remedy when a defendant who is entitled to a jury instruction in accordance with Salamon does not receive it? After reviewing the applicable precedent, we concluded that, as in the case of any other harmful instructional impropriety, the appropriate remedy is to reverse the defendant s kidnapping conviction and to remand the case for a new trial. Id., 434. As we explained in DeJesus, when the state has presented evidence sufficient to support the defendant s conviction under the legal standard that existed at the time of trial, an unforeseen change in that legal standard, although requiring reversal of the conviction, ordinarily does not also require a judgment of acquittal. Id., 434 36. Rather, the state is entitled to retry the defendant under the new standard because, in such circumstances, the double jeopardy concerns that preclude the [state] from having a second opportunity to build a case against a defendant when it failed to do so the first time are not present . . . . Any insufficiency in proof was caused by the subsequent change in the law . . . [and] not the [state s] failure to muster evidence. (Internal quotation marks omitted.) Id., 436. Indeed, in DeJesus, we expressly recognize[d] that in [Sanseverino], we reversed the defendant s conviction of kidnapping in the first degree and remanded the case to the trial court with direction to render a judgment of acquittal, reasoning that no reasonable jury could have convicted the defendant of a kidnapping in light of our holding in Salamon. Furthermore, we acknowledge[d] that we explicitly rejected the . . . assertion [of the dissent in Sanseverino] that the defen- dant was entitled to a new trial before a properly instructed jury, rather than a judgment of acquittal, because the state had no knowledge when presenting its case to the jury that it was necessary to [establish that the defendant had intended to restrain the victim for a longer period of time or to a greater degree than was necessary to accomplish the underlying crime]. [State v. Sanseverino, supra, 287 Conn.] 654 (Zarella, J., dissenting). State v. DeJesus, supra, 288 Conn. 437. In DeJesus, we ultimately concluded that our reasoning and remand order in Sanseverino, insofar as they related to the defendant s kidnapping conviction, were wrong and that the proper remedy should have been a new trial. Id. We therefore overruled our conclusion in Sanseverino that the defendant was entitled to a judgment of acquittal on the kidnapping charge rather than a new trial. Id. In accordance with our analysis and conclusion in DeJesus, we agree with the state that it must be afforded the opportunity to decide whether to retry the defendant on the charge of kidnapping in the first degree;9 it is not the function of this court to make that decision for the state.10 Thus, the case must be remanded to the trial court not with direction to render a judgment of acquittal on the kidnapping charge but, rather, to afford the state the opportunity to retry the defendant on the kidnapping charge.11 II The state also contends that if it elects not to retry the defendant on the kidnapping charge, it nevertheless is entitled to a modification of the judgment to reflect a conviction of unlawful restraint in the second degree, a lesser included offense of kidnapping in the first degree.12 Although the state acknowledges that the jury never was instructed on the crime of unlawful restraint in the second degree, the state asserts that the jury necessarily found that the defendant had committed that crime by virtue of its finding that the defendant had committed the greater offense of kidnapping in the first degree.13 The state also maintains that it reasonably could not have been expected to seek a jury instruction on the lesser included offense of unlawful restraint in the second degree because, prior to Salamon, which represented an abrupt departure from this court s previous interpretation of our kidnapping statutes, the state had every reason to believe that the jury would find that the defendant had committed the offense of kidnapping in the first degree. The state also relies on State v. Greene, 274 Conn. 134, 160 62, 874 A.2d 750 (2005), cert. denied, 548 U.S. 926, 126 S. Ct. 2981, 165 L. Ed. 2d 988 (2006), in which this court ordered the imposition of a judgment of conviction of a lesser included offense, following the reversal of a conviction of a greater offense, when the record established that, although the jury was not instructed on the lesser offense, the jury necessarily found all of the elements of that lesser offense.14 In fact, the state suggests that this court s holding in Greene, at least by implication, reflects the approach that the United States Circuit Court of Appeals for the District of Columbia adopted in Allison v. United States, 409 F.2d 445 (D.C. Cir. 1969), and that the United States Supreme Court noted in Rutledge v. United States, 517 U.S. 292, 305 n.15, 306, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). Under that approach, which does not require the jury to be instructed on the lesser included offense, a judgment of conviction on that lesser offense may be imposed upon reversal of the greater offense when it is clear (1) that the evidence adduced at trial fails to support one or more elements of the crime of which [the defendant] was convicted, (2) that such evidence sufficiently sustains all of the elements of another offense, (3) that the latter is a lesser included offense of the former, and (4) that no undue prejudice will result to the accused. Allison v. United States, supra, 451. Finally, the state claims that, in light of the benefit that the defendant has received, namely, the reversal of his kidnapping conviction, which resulted from the fortuity that his case was on appeal when Salamon was decided, he will suffer no unfair prejudice if the judgment is modified to reflect a conviction of unlawful restraint in the second degree, a misdemeanor.15 See General Statutes § 53a-96 (b). We disagree with the state that the broad issue presented by the state s second claim, that is, whether, and if so, when, an appellate court may order the modification of a judgment in the manner requested in the present case, is settled in this state. Indeed, this court never has addressed the issue directly. Moreover, there is a distinct split of authority on this question among both state and federal courts. Some courts have held that it is appropriate for an appellate court to order the modification of a judgment to reflect a conviction of a lesser included offense, even in the absence of a jury instruction on that lesser offense, when it is not unfair to the defendant to do so. See, e.g., United States v. Hunt, 129 F.3d 739, 745 46 (5th Cir. 1997) (modification of judgment permissible despite fact that trial court did not instruct jury on lesser included offense if, inter alia, such modification would not result in undue prejudice to defendant); United States v. Smith, 13 F.3d 380, 383 (10th Cir. 1993) (same); Allison v. United States, supra, 409 F.2d 451 (same); Shields v. State, 722 So. 2d 584, 586 87 (Miss. 1998) (same); see also People v. Patterson, 187 Colo. 431, 437, 532 P.2d 342 (1975) (modification of judgment appropriate because, [e]ven though the jury was not instructed as to the lesser included offense, the defendant [was] given his day in court, [a]ll of the elements of the lesser included offense [were] included in the more serious offense, and [h]is guilt of the lesser included offense [was] implicit and part of the jury s verdict ); State v. Farrad, 164 N.J. 247, 266, 753 A.2d 638 (2000) ( [a] guilty verdict may be molded to convict on a lesser-included offense . . . if [1] [the] defendant has been given his day in court, [2] all the elements of the lesser included offense are contained in the more serious offense and [3] [the] defendant s guilt of the lesser included offense is implicit in, and part of, the jury verdict [internal quotation marks omitted]). Other courts have barred such a modification unless the jury has been instructed on the lesser included offense.16 See, e.g., United States v. Dhinsa, 243 F.3d 635, 675 76 (2d Cir.) (remand for modification of judgment to reflect lesser included offense permissible only if jury had been instructed on that offense), cert. denied, 534 U.S. 897, 122 S. Ct. 219, 151 L. Ed. 2d 156 (2001); United States v. VasquezChan, 978 F.2d 546, 554 (9th Cir. 1992) (same); Ex parte Roberts, 662 So. 2d 229, 232 (Ala. 1995) (same); State v. Villa, 136 N.M. 367, 371, 98 P.3d 1017 (2004) (same); State v. Brown, 360 S.C. 581, 594, 602 S.E.2d 392 (2004) (same). Under the unique circumstances of this case, we conclude that the state is entitled to the modification of the judgment that it seeks. We reach this conclusion for several reasons, each of which is integral to our decision. First, there is no reason to believe that the state opted against seeking a jury instruction on the lesser offense of unlawful restraint in the second degree for strategic purposes. As the state has asserted, prior to our decision in Salamon a decision that the state reasonably could not have expected in view of the long line of contrary cases that preceded it the state had every reason to believe that, if the jury credited the state s evidence, the defendant would be found guilty of the kidnapping charge. In other words, prior to the unforeseeable change in the law following the defendant s trial, the state had no reason to seek a lesser included offense instruction, and, consequently, the state s failure to do so cannot possibly have been the product of a strategic decision. Second, the defendant has benefited from our holding in Salamon even though he did not raise the claim that the defendant in Salamon raised in his appeal. Third, the defendant has not filed an objection to the state s request for a modification of the judgment. See footnote 5 of this opinion. Finally, we can conceive of no reason why it would be unfair to the defendant to impose a conviction of unlawful restraint in the second degree.17 In light of all of these circumstances, we believe that it is appropriate to order that the judgment be modified, as the state requests, if the state elects not to retry the defendant for kidnapping.18 The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reverse the trial court s judgment with respect to the defendant s conviction of kidnapping in the first degree, to affirm the trial court s judgment in all other respects, and to remand the case to the trial court with direction either to order a new trial on the kidnapping charge or to render a judgment of conviction of unlawful restraint in the second degree, at the option of the state. In this opinion ROGERS, C. J., and NORCOTT, VERTEFEUILLE and ZARELLA, Js., concurred. 1 As we explain more fully in part I of this opinion, in State v. DeJesus, 288 Conn. 418, 436 37, 953 A.2d 45 (2008), we overruled Sanseverino to the extent that Sanseverino held that a judgment of acquittal could serve as a proper remedy for the reversal of a kidnapping conviction on the ground that the jury had not been instructed in accordance with our holding in State v. Salamon, 287 Conn. 509, 547 48, 949 A.2d 1092 (2008). 2 After a jury trial, the defendant was convicted of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), two counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), and one count of attempt to commit sexual assault in the first degree in violation of § 53a-70 (a) (1) and General Statutes § 53a-49 (a) (2). This opinion addresses the defendant s kidnapping conviction only and supersedes our opinion in State v. Sanseverino, supra, 287 Conn. 608, with respect to the parties claims pertaining to that conviction. We reaffirm our opinion in Sanseverino in all other respects. 3 In Salamon, this court held that, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime. State v. Salamon, supra, 287 Conn. 542. In other words, a defendant may be convicted of both kidnapping and another substantive crime [only] 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. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim s movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant s risk of detection and whether the restraint created a significant danger or increased the victim s risk of harm independent of that posed by the separate offense. Id., 547 48. Although the defendant in the present case did not raise a claim similar to the claim raised in Salamon, he nevertheless is entitled to the benefit of our holding in Salamon because his appeal was pending when we issued our opinion in Salamon. 4 Sanseverino was decided by a five member panel of this court consisting of Chief Justice Rogers and Justices Norcott, Katz, Palmer and Zarella. Upon our granting of the state s motion for reconsideration en banc, Justices Vertefeuille and Schaller were added to the panel, and they have read the record, briefs and transcript of the oral argument in Sanseverino. 5 We note that the defendant has not filed a response to the state s motion for reconsideration en banc. 6 We note that it is not entirely clear from the state s motion for reconsideration en banc whether the state seeks this relief alternatively or in addition to the opportunity to retry the defendant on the kidnapping charge. Because it arguably would be unfair or otherwise inappropriate to permit the state to retry the defendant for first degree kidnapping and to direct a judgment of conviction of the lesser included offense of unlawful restraint in the second degree, we treat the state s motion as a request for alternative relief. 7 We note that the state does not seek reconsideration of our determination in Sanseverino that, under Salamon, the defendant is entitled to reversal of his conviction of kidnapping in the first degree. 8 In Salamon, we reversed the defendant s kidnapping conviction and remanded the case for a new trial, concluding that a jury reasonably could find that the defendant s restraint of the victim was not merely incidental to another offense against the victim, in that case, an assault. State v. Salamon, supra, 287 Conn. 549 50. 9 We take this opportunity to disavow our suggestion in Sanseverino that, because the state bears the burden of proving the defendant s guilt beyond a reasonable doubt, we must presume that the state necessarily adduced all of the evidence available to it that may be relevant to the defendant s guilt. State v. Sanseverino, supra, 287 Conn. 625 26 n.16. The state, like any party to any other kind of action, may or may not elect to present such evidence, depending on the particular circumstances of the individual case. 10 As we also explained in DeJesus, however, in light of the facts that were adduced at trial in Sanseverino, it appears unlikely that the state [will be] able to proffer sufficient additional evidence on retrial to satisfy the Salamon rule. Nonetheless, it is not the function of this court, as an appellate tribunal, to deprive the state of that opportunity. State v. DeJesus, supra, 288 Conn. 437 38 n.14; see also id., 478 (Palmer, J., concurring) (observing that, although state has right to seek to retry defendant in Sanseverino, it is extremely unlikely that, because of the factual scenario presented by [the] case, the state will be able to adduce evidence sufficient to support a conviction of kidnapping in light of the factors . . . announced [by this court] in . . . Salamon ). 11 Justice Katz contends that our decision to reconsider the analysis that we employed in Sanseverino is inconsistent with our analysis in Salamon. In Salamon, we concluded, on the basis of the conduct of the defendant in that case, that his restraint of the victim was not necessarily incidental to another crime, namely, his assault of the victim. Id., 549 50. We therefore further concluded in Salamon that [w]hether the defendant s conduct constituted a kidnapping . . . is a factual question for determination by a properly instructed jury. Id., 550. To the extent that any of our language or analysis in Salamon suggests that it may be appropriate to engage in a sufficiency of the evidence test to determine whether, following an improper jury instruction, a new trial is warranted, we expressly disavow any such suggestion. As we explained in DeJesus, and as we underscore in the present case, the state is entitled to the opportunity to retry the defendant unless the evidence was insufficient to support the defendant s conviction under the legal standard applicable at the time of the first trial; if the evidence was sufficient under that standard, then the state is entitled to retry the defendant before a properly instructed jury. See State v. DeJesus, supra, 288 Conn. 434 37. 12 The test used for determining whether one crime is a lesser included offense of another crime is whether it is not possible to commit the greater offense, in the manner described in the information . . . without having first committed the lesser . . . . This . . . test is satisfied if the lesser offense does not require any element which is not needed to commit the greater offense. (Citation omitted; internal quotation marks omitted.) State v. Greco, 216 Conn. 282, 292, 579 A.2d 84 (1990). As the Appellate Court recently has indicated; see State v. Spencer, 81 Conn. App. 320, 337-39, 840 A.2d 7 (2004), rev d in part on other grounds, 275 Conn. 171, 881 A.2d 209 (2005); unlawful restraint in the second degree is a lesser offense included within the offense of kidnapping in the first degree. 13 See State v. Sanseverino, supra, 287 Conn. 662 n.11 (Zarella, J., dissenting) ( even though the trial court . . . did not expressly instruct the jury on the lesser included offense of unlawful restraint in the second degree, because that crime is a lesser included offense of kidnapping in the first degree and because the trial court instructed the jury on the elements of kidnapping in the first degree, it implicitly instructed the jury on the lesser offense inasmuch as the trial court necessarily instructed the jury on all of the elements comprising the crime of unlawful restraint in the second degree ). 14 In [Greene], the defendant [Mashawn Greene] was charged with, inter alia, murder as an accessory, and the trial court granted the state s request to instruct the jury on what [the state] considered to be the lesser included offense of manslaughter in the first degree with a firearm as an accessory. [State v. Greene, supra, 274 Conn. 154 55]. On appeal, we concluded that such an instruction was improper because manslaughter in the first degree with a firearm is not a lesser included offense of murder. Id., [158 60]. We rejected [Greene s] contention that the appropriate remedy for this constitutional violation of instructional error was a judgment of acquittal and determined that we could modify the judgment of conviction. Id., 160 62. In doing so, we recognized that [t]his court has modified a judgment of conviction after reversal, if the record establishes that the jury necessarily found, beyond a reasonable doubt, all of the essential elements required to convict the defendant of a lesser included offense. Id., 160. We determined that, [b]efore the jury could find the defendant guilty of manslaughter in the first degree with a firearm, the jury necessarily must have found the defendant guilty of manslaughter in the first degree. . . . Therefore, the trial court s improper instruction could not have affected the jury s finding that the defendant was guilty, beyond a reasonable doubt, of the essential elements of manslaughter in the first degree . . . . Id., 161. Significantly, however, in Greene, the trial court never instructed the jury that it could find the defendant guilty of manslaughter in the first degree. See id., 155. Rather, the trial court s instruction on the lesser included offense was that the jury could find the defendant guilty of manslaughter in the first degree with a firearm. See id. Nevertheless, we did not conclude that the jury s inability to return explicitly a verdict of guilty of manslaughter in the first degree precluded us from modifying the judgment by directing the trial court to convict the defendant of that crime. (Internal quotation marks omitted.) State v. Sanseverino, supra, 287 Conn. 660 61 (Zarella, J., dissenting). 15 Kidnapping in the first degree, by contrast, is a class A felony. General Statutes § 53a-92 (b). 16 In one such case, State v. Brown, 360 S.C. 581, 602 S.E.2d 392 (2004), the court set forth the following comprehensive statement of reasons in support of its conclusion that a jury instruction on the lesser included offense is a necessary prerequisite to the modification of a judgment of conviction. First, an appellate court does not sit as a [fact finder] in a criminal case and should avoid resolving cases in a manner which appears to place the appellate court in the jury box. . . . Second . . . this view preserves the important distinction between an appellate determination [that] the record contains sufficient evidence to support a guilty verdict and a jury determination [that] the [s]tate proved its case beyond a reasonable doubt. . . . Third, when [a jury instruction on the lesser offense has been given] . . . it can be said with some degree of certainty that a [sentencing remand] is but effecting the will of the fact finder within the limitations imposed by law . . . and . . . that the appellate court is simply passing on the sufficiency of the implied verdict. When, however, no instruction at all has been offered on the lesser offense, second guessing the jury becomes far more speculative. . . . Fourth, when the jury could have explicitly returned a verdict on the lesser offense, the defendant is well aware of his potential liability for the lesser offense and usually will not be prejudiced by the modification of the judgment from the greater to the lesser offense. . . . Fifth, adopting a practice of remanding for sentencing on a lesser included offense when that offense has not been submitted to the jury may prompt the [s]tate to avoid requesting or agreeing to submit a lesser included offense to the jury. . . . Sixth, the [s]tate would obtain an unfair and improper strategic advantage if it successfully prevents the jury from considering a lesser included offense by adopting an all or nothing approach at trial, but then on appeal, perhaps recognizing [that] the evidence will not support a conviction on the greater offense, is allowed to abandon its trial position and essentially concede [that] the lesser included offense should have been submitted to the jury. . . . Seventh . . . [t]he defendant may well have [forgone] a particular defense or strategy due to the trial court s rejection of a lesser included offense. (Citations omitted; internal quotation marks omitted.) Id., 594 97. 17 In his dissent, Justice Schaller contends that the unfairness to a defendant by convicting him of a charge on which the original jury could not have convicted him outweighs whatever disadvantage the state may suffer from its tactical decision [not to seek an instruction on a lesser included offense]. If this rule is not enforced in this situation, this court is, in effect, resolving a case in a manner which appears to place [an] appellate court in the jury box. (Emphasis in original; internal quotation marks omitted.) We disagree. First, there simply is no support for Justice Schaller s assertion that the state s failure to seek a lesser included offense instruction represented a tactical decision. As we have explained, under the law of this state at the time of the defendant s trial, the state had no reason to seek a lesser included offense instruction because this court repeatedly had upheld kidnapping convictions when the restraint necessary for the commission of the sexual assault was sufficient to support the kidnapping conviction. Second, although it is true that the jury could not have found the defendant guilty of unlawful restraint in the second degree in view of the fact that it was not instructed on that charge as a lesser included offense of kidnapping, there can be no doubt that the jury necessarily found that the defendant had committed that lesser offense because it found the defendant guilty of the greater crime of kidnapping. Indeed, Justice Schaller does not challenge that fact. Thus, there is no basis for the claim that this court may be viewed as usurping the role of the jury in holding that the state is entitled to a judgment of conviction of the lesser offense of unlawful restraint in the second degree. Indeed, this court routinely engages in far more extensive inquiries into the fact bound decisions of juries. For example, we frequently are called on to determine whether trial error was harmless by evaluating whether that error was likely to have affected the jury verdict. See, e.g., State v. Beavers, 290 Conn. 386, 396, 963 A.2d 956 (2009) ( [a] nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict [internal quotation marks omitted]). In the present case, in contrast, we make no judgment about the nature or quality of the evidence, or the likely effect that the evidence would have on the jury verdict; on the contrary, we know that the jury found that the defendant had committed the crime of unlawful restraint in the second degree. 18 We emphasize that we intimate no view as to whether the state would be entitled to such a modification in the absence of any one of the factors that are present in this case. We do not doubt that we will have the opportunity to consider that broader issue, sooner rather than later, when our decision actually will make a difference to the outcome of the case. See, e.g., Kelly v. New Haven, 275 Conn. 580, 602, 881 A.2d 978 (2005) ( [w]e generally eschew . . . making legal pronouncements on matters not directly presented ). Indeed, as the United States Court of Appeals for the Second Circuit recently has observed, its failure to address a question that is not necessary to the outcome of a case is simply a wise exercise of [its] discretion. See United States v. United States Gypsum Co., 333 U.S. 364, 402, 68 S. Ct. 525, 92 L. Ed. 746 (1948) (Frankfurter, J., concurring in part) ( Deliberate dicta, I had supposed, should be deliberately avoided. Especially should we avoid passing gratuitously on an important issue of public law where due consideration of it has been crowded out by complicated and elaborate issues that have to be decided. ). United States v. Schultz, 333 F.3d 393, 407 (2d Cir. 2003), cert. denied, 540 U.S. 1106, 124 S. Ct. 1051, 157 L. Ed. 2d 891 (2004). The Second Circuit further stated: The dangers inherent in a court s reaching out to decide issues not essential to the outcome of the case before it were perhaps most colorfully described by the [nineteenth] century English jurist Lord Justice Bowen, who has been quoted by [the United States] Supreme Court as saying: I am extremely reluctant to decide anything except what is necessary for the special case, because I believe by long experience that judgments come with far more weight and gravity when they come upon points which the [j]udges are bound to decide, and I believe that obiter dicta, like the proverbial chickens of destiny, come home to roost sooner or later in a very uncomfortable way to the [j]udges who have uttered them, and are a great source of embarrassment in future cases. Darr v. Burford, 339 U.S. 200, 214, 70 S. Ct. 587, 94 L. Ed. 761 (1950), overruled in part on other grounds by Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). (Internal quotation marks omitted.) United States v. Schultz, supra, 333 F.3d 407 n.8. Justice Katz nevertheless takes issue with the fact that we limit our holding to the particular facts and procedural history of this case, and that we decline to decide the broader issue presented, namely, under what particular circumstances is it appropriate for an appellate court to require the conviction of a lesser included offense upon reversal of a conviction of the greater offense. In challenging our preference to decide this case more narrowly, Justice Katz ignores several important factors in addition to the foregoing consideration. First, this issue never has been decided expressly by this court or the Appellate Court. Second, courts of other jurisdictions are sharply divided on the issue. Third, because the defendant never responded to the state s motion for reconsideration en banc, we are unable to subject the issue to meaningful adversarial testing. In such circumstances, we believe that prudence militates strongly in favor of the more cautious approach that we take in the present case. For all the same reasons, we disagree with the approach taken by Chief Justice Rogers, who, like Justice Katz, would decide the broader issue raised by this case. With respect to that broader issue, however, Chief Justice Rogers would reach a result that is precisely the opposite of the result that Justice Katz would reach. In our view, the very fact that two members of this court disagree so starkly on that broader question strongly supports the conclusion that it is wiser not to decide the issue until it has been squarely presented and fully briefed. Indeed, neither Chief Justice Rogers nor Justice Katz has offered any reason why it would not be better to await such a case.
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