949 A.2d 1092 (2008) 287 Conn. 509

STATE of Connecticut
v.
Scott SALAMON.

No. 17610.

Supreme Court of Connecticut.

Argued April 17, 2007. Decided July 1, 2008.

*1099 Pamela S. Nagy, special public defender, for the appellant (defendant).

Marjorie Allen Dauster, senior assistant state's attorney, with whom, on the brief, were David I. Cohen, state's attorney, Timothy J. Sugrue, senior assistant state's attorney, and Michael Colombo, former deputy assistant state's attorney, for the appellee (state).

BORDEN, NORCOTT, KATZ, PALMER, VERTEFEUILLE, ZARELLA and SULLIVAN, Js.^[*]

*1100 PALMER, J.

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 § 53a-94,^[1] unlawful restraint in the first degree in violation of General Statutes § 53a-95,^[2] and risk of injury to a child in violation of General Statutes (Rev. to 2001) § 53-21(a)(1).^[3] The trial court rendered judgment in accordance with the jury verdict,^[4] and the defendant appealed.^[5] On appeal, the defendant raises several claims. With respect to his conviction of kidnapping in the second degree, the defendant urges us to revisit and overrule our interpretation of this state's kidnapping statutes, most recently articulated by this court in State v. Luurtsema, 262 Conn. 179, 811 A.2d 223 (2002), under which a person who restrains another person with the intent to prevent that person's liberation may be convicted of kidnapping even though the restraint involved in the kidnapping is merely incidental to the commission of another offense perpetrated against the victim by the accused.^[6]See id., at 202, 811 A.2d 223. *1101 With respect to his conviction of unlawful restraint in the first degree, the defendant challenges the propriety of the trial court's jury instructions on the element of intent. Finally, the defendant claims that he is entitled to a new trial on all three counts on the basis of certain prosecutorial improprieties that had occurred during the trial. We accept the defendant's invitation to reconsider our prior interpretation of the kidnapping statutes and now conclude that that interpretation was incorrect and must be overruled. Because the trial court instructed the jury in accordance with this court's then applicable precedent governing the interpretation of those statutes, we reverse the defendant's conviction of kidnapping in the second degree and remand the case for a new trial on that charge.^[7] We disagree, however, with the defendant's other claims and, therefore, affirm the defendant's conviction of unlawful restraint in the first degree and risk of injury to a child.

The jury reasonably could have found the following facts. In the summer of 2002, the victim, a fifteen year old female,^[8] was visiting her aunt and uncle in Tuckahoe, New York. On July 3, 2002, the victim's aunt drove her to Bronx, New York, to visit with other relatives. The following evening, the victim boarded a train in New York, intending to return to the Tuckahoe residence of her aunt and uncle. While on the train, the victim fell asleep. When she awoke sometime between 9:30 and 10 p.m., she realized that she was in Connecticut and that she apparently had taken the wrong train. The victim disembarked the train in Stamford and began walking toward a stairwell in the direction of the main concourse. At that time, the victim noticed the defendant, who was watching her from a nearby platform. As the victim approached the stairwell, she observed that the defendant was following her. The defendant continued to follow the victim as she ascended the stairs. Before the victim reached the top of the stairs, the defendant caught up to her and grabbed her on the back of the neck, causing her to fall onto the steps. The victim, who had injured her elbow as a result of the fall, attempted to get up, but the defendant, who had positioned himself on the steps beside her, was holding her down by her hair. The victim screamed at the defendant to let her go. The defendant then punched the victim once in the mouth and attempted to thrust his fingers down her throat as she was screaming. Eventually, the victim was able to free herself from the defendant's grasp, and the defendant fled. Security personnel were summoned, and, shortly thereafter, *1102 the defendant was apprehended and arrested. At the time, the victim told a security guard that she thought that the defendant had been trying to rape her; later, however, the victim indicated that she did not know why the defendant had accosted her. According to the victim, the altercation with the defendant lasted at least five minutes.

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

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 defendant's restraint of the victim in connection with the kidnapping was incidental to the defendant's restraint of the victim in connection with his assault of the victim. The defendant also maintains that he was deprived of his due process right to a fair trial as a result of certain improper conduct by the deputy assistant state's attorney during the trial and that the trial court improperly instructed the jury on the intent element of the offense of unlawful restraint in the first degree. We agree with the defendant's first claim but disagree with his other two claims.

I.

The defendant maintains that our construction of this state's 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^[10] to apply when *1103 the restraint involved in the kidnapping is incidental to the commission of another crime or crimes. In support of his claims, the defendant contends: (1) the evolution of the common law predating our kidnapping statutes indicates that a narrower construction is warranted; (2) our prior decisions construing the kidnapping statutes appeared to recognize the propriety of that narrow interpretation, but we subsequently expanded the scope of the offense, without sound reason for doing so, to reflect the literal language of the kidnapping statutes; see footnote 6 of this opinion; (3) our current approach leads to absurd and unconscionable results when the restraint that provides the basis of the kidnapping charge constitutes the same restraint that a defendant necessarily uses to commit the primary, underlying offense; and (4) a significant majority of our sister states have rejected that literalist approach and, instead, have interpreted their kidnapping statutes in accordance with the construction that the defendant urges us to adopt. In response, the state asserts that the defendant has failed to offer cogent reasons for overruling established precedent that permits a conviction for kidnapping when the restraint involved in the commission of that offense is merely incidental to the commission of a separate, underlying offense against the victim. After careful consideration of the competing claims, we are persuaded by the defendant's arguments.^[11]

At the outset, we address the state's contention that we should not reexamine our prior holdings concerning the construction *1104 of this state's kidnapping statutes. In support of its claim, the state relies primarily on two separate but related principles, namely, the doctrine of stare decisis and the tenet of statutory interpretation that counsels against overruling case law involving our construction of a statute if the legislature reasonably may be deemed to have acquiesced in that construction. Although we recognize that both of these principles implicate important policy considerations that should not be set aside lightly, we are persuaded that the doctrines are not sufficiently weighty to bar reconsideration of our prior precedent interpreting the kidnapping statutes.

"This court has repeatedly acknowledged the significance of stare decisis to our system of jurisprudence because it gives stability and continuity to our case law." Conway v. Wilton, 238 Conn. 653, 658, 680 A.2d 242 (1996). "The 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." (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., 282 Conn. 477, 494, 923 A.2d 657 (2007).

Moreover, "[i]n evaluating the force of stare decisis, our case law dictates that we should be especially wary of overturning a decision that involves the construction of a statute. . . . When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, [that is] the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided. . . . More often, however, the legislature takes no further action to clarify its intentions. Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature's acquiescence in our construction of a statute. . . . Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision." (Internal quotation marks omitted.) Id., at 494-95, 923 A.2d 657.

None of the foregoing principles, however, necessarily constitutes an insurmountable barrier to a court's reconsideration of its prior precedent. With respect to the doctrine of stare decisis, we repeatedly have observed that "[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 court should be right upon later and more elaborate consideration of the cases *1105 than consistent with previous declarations. . . . In short, consistency must not be the only reason for deciding a case in a particular way, if to do so would be unjust. Consistency obtains its value best when it promotes a just decision." (Citations omitted; internal quotation marks omitted.) State v. Miranda, 274 Conn. 727, 734, 878 A.2d 1118 (2005). Moreover, "[e]xperience can and often does demonstrate that a rule, once believed sound, needs modification to serve justice better. . . . Indeed, [i]f law is to have current relevance, courts must have and exert the capacity to change a rule of law when reason so requires. . . . [Thus] [t]his court . . . has recognized many times that there are exceptions to the rule of stare decisis." (Citations omitted; internal quotation marks omitted.) State v. Skakel, 276 Conn. 633, 691, 888 A.2d 985, cert. denied, ___ U.S. ___, 127 S.Ct. 578, 166 L.Ed.2d 428 (2006); see also Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) ("[s]tare decisis is not an inexorable command; rather, it is a principle of policy and not a mechanical formula of adherence to the latest decision" [internal quotation marks omitted]). In accordance with these principles, we have not hesitated to revisit and overrule our prior holdings, including prior holdings applicable to criminal matters; see, e.g., State v. Skakel, supra, at 693, 888 A.2d 985; State v. Miranda, supra, at 733-34, 878 A.2d 1118; State v. Colon, 257 Conn. 587, 601-602, 778 A.2d 875 (2001); once we are convinced that they were incorrect and unjust.

We also have recognized that "legislative inaction [following our interpretation of a statute] is not necessarily legislative affirmation. . . ." (Internal quotation marks omitted.) State v. Colon, supra, 257 Conn. at 598 n. 14, 778 A.2d 875; accord Rivera v. Commissioner of Correction, 254 Conn. 214, 252, 756 A.2d 1264 (2000). Indeed, we recently have observed that the legislature's failure to amend a statute in response to our interpretation of that provision is not dispositive of the issue because legislative inaction is not always "the best of guides to legislative intent." (Internal quotation marks omitted.) State v. Colon, supra, at 598 n. 14, 778 A.2d 875; see also Streitweiser v. Middlesex Mutual Assurance Co., 219 Conn. 371, 379, 593 A.2d 498 (1991). Thus, despite our reluctance to overrule cases involving the construction of statutes, we occasionally have done so, "even when the legislature has had numerous occasions to reconsider [our] interpretation and has failed to do so." Conway v. Wilton, supra, 238 Conn. at 662, 680 A.2d 242; see, e.g., Waterbury v. Washington, 260 Conn. 506, 538-39, 800 A.2d 1102 (2002) (overruling prior cases concerning exhaustion doctrine as applied to Connecticut Environmental Protection Act); Ferrigno v. Cromwell Development Associates, 244 Conn. 189, 202, 708 A.2d 1371 (1998) (overruling prior interpretation of General Statutes § 37-9[3] because that interpretation created irreconcilable conflict between civil and criminal provisions of usury law); Santopietro v. New Haven, 239 Conn. 207, 215, 682 A.2d 106 (1996) (concluding that our previous statutory interpretation of General Statutes § 52-228b was flawed); Conway v. Wilton, supra, at 680-81, 680 A.2d 242 (overruling prior interpretation of General Statutes § 52-557f [3] as applied to municipalities). Indeed, in a number of recent cases, we have overruled our prior interpretation of a criminal statute. See, e.g., State v. Skakel, supra, 276 Conn. at 666-67, 888 A.2d 985 (overruling prior case law affording prospective effect only to 1976 amendment to limitation period of General Statutes [Rev. to 1975] § 54-193); State v. Miranda, supra, 274 Conn. at 733-34, 878 A.2d 1118 (overruling this court's prior interpretation of *1106 General Statutes § 53a-59 [a][3]); State v. Colon, supra, at 589, 778 A.2d 875 (overruling this court's prior interpretation of General Statutes § 53a-48 [a]).

For several reasons, we are persuaded that it is appropriate to reexamine our interpretation of the kidnapping statutes in accordance with the defendant's request. First, as this court previously has observed, "[t]he arguments for adherence to precedent are least compelling . . . when the rule to be discarded may not be reasonably supposed to have determined the conduct of the litigants. . . ." (Internal quotation marks omitted.) Craig v. Driscoll, 262 Conn. 312, 330, 813 A.2d 1003 (2003); accord Commission on Human Rights & Opportunities v. Board of Education, 270 Conn. 665, 681, 855 A.2d 212 (2004). Persons who engage in criminal misconduct, like persons who engage in tortious conduct, "rarely if at all will . . . give thought to the question of what law would be applied to govern their conduct" if they were to be apprehended for their violations. (Internal quotation marks omitted.) Conway v. Wilton, supra, 238 Conn. at 661, 680 A.2d 242. Applying this principle to the present case, we conclude that there is no reason to believe that anyone would attempt to tailor his or her criminal conduct in light of this court's interpretation of the interrelationship between our kidnapping statutes and other criminal statutes prohibiting the same or similar conduct.^[12] Consequently, this lack of reliance militates in favor of the defendant's contention that we should revisit our interpretation of the kidnapping statutes.

Second, the issue presented by the defendant's 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 legislative regulation, it is uncertain whether the position that the defendant advocates would attract interested sponsors with access to the legislature. Finally, to the extent that such potential sponsors do exist, it also is unclear whether the issue is sufficiently important to gain their full support.

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 observation — predicated solely on the language of the kidnapping statutes—that the "legislature [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." (Internal quotation marks omitted.) State v. Luurtsema, supra, 262 Conn. at 202, 811 A.2d 223; 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 *1107 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. at 201-202, 811 A.2d 223. 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. Commissioner of Correction, 281 Conn. 380, 400-401, 917 A.2d 1 (2007) (rejecting literal construction of statutory language because that construction would be inconsistent with legislative scheme governing same subject matter); Connelly v. Commissioner of Correction, 258 Conn. 394, 404-405, 780 A.2d 903 (2001) (rejecting literal construction of statute when that construction would result in inequitable and unintended consequences); Levey Miller Maretz v. 595 Corporate Circle, 258 Conn. 121, 133, 780 A.2d 43 (2001) (declining to apply statutory language literally when to do so would lead to bizarre results); State v. Brown, 242 Conn. 389, 402, 699 A.2d 943 (1997) (declining to apply literal language of statute and rules of practice when that language could not be "applied sensibly in that fashion"). The fact that our adherence to the literal language of the kidnapping statutes arguably can lead to such a result is reason to revisit our prior interpretation.

Fifth, "the 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." Berkley v. Gavin, 253 Conn. 761, 776-77 n. 11, 756 A.2d 248 (2000). In other words, "[l]egislative concurrence is particularly strong [when] the legislature makes unrelated amendments in the same statute." (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 § 53a-94 affecting only its penalty provisions,^[13] neither that section nor the pertinent definitional section, General Statutes § 53a-91, has been subject to any substantive amendments since it first was enacted in 1969.^[14]

*1108 Finally, since 1977, when this court first rejected a claim that a kidnapping conviction could not be based on conduct involving a restraint that is merely incidental to the commission of another crime, the courts of many other states have reached a contrary conclusion in interpreting their kidnapping statutes.^[15] In fact, some of those courts have overruled prior precedent that had construed kidnapping statutes broadly to encompass a restraint that is merely incidental to the commission of another crime.^[16] Indeed, we now are in the distinct minority of jurisdictions that continue to adhere to the view that a kidnapping conviction may be sustained even when the restraint that forms the basis of that conviction is no greater in severity or duration than the restraint necessary to complete another crime, such as assault or robbery. Of course, the mere fact that a majority of states construe their kidnapping statutes differently than we have construed our kidnapping statutes does not *1109 necessarily mean that our construction is wrong; the decisive trend away from the construction that we previously have adopted, however, does support the contention that our reexamination of that construction is appropriate.^[17]

In sum, although the doctrine of legislative acquiescence may provide a compelling reason for a court to refrain from reexamining its prior precedent construing a particular statutory provision; see, e.g., Hummel v. Marten Transport, Ltd., supra, 282 Conn. at 501-502, 923 A.2d 657 (rejecting claim that this court should revisit prior precedent construing statute as containing final judgment requirement because, inter alia, court previously had rejected identical claim in reliance on legislative acquiescence principle); at other times, the particular circumstances make "legislative silence . . . ambiguous . . . and [therefore] an unreliable indicator of legislative intent." Commission on Human Rights & Opportunities v. Board of Education, supra, 270 Conn. at 724, 855 A.2d 212. For the foregoing reasons, we conclude that this is such a case.^[18] Accordingly, we accept the defendant's invitation to revisit and reconsider our prior construction of the kidnapping statutes.

The principles that govern our task are well established. Because it involves construction of a statute, our review is plenary. See, e.g., State v. Bell, 283 Conn. 748, 786, 931 A.2d 198 (2007). "When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. . . . In seeking to determine that *1110 meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered. . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . ." (Internal quotation marks omitted.) Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 650-51, 931 A.2d 142 (2007). In accordance with § 1-2z, we begin our review of the defendant's claim with the language of the kidnapping statutes and other related statutory provisions.

The crime of kidnapping and other offenses primarily involving restrictions of another person's liberty, including unlawful restraint and custodial interference, are set forth in part VII of the Connecticut Penal Code, General Statutes § 53a-91 et seq. Under those provisions, the hallmark of a kidnapping is an abduction, whereas the hallmark of an unlawful restraint, a less serious crime, is a restraint.^[19] Under § 53a-91, the definition of the term "abduct" incorporates and builds on the definition of the term "restrain." Thus, under subdivision (1) of General Statutes § 53a-91, "`[r]estrain' means to restrict a person's 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." Under General Statutes § 53a-91(2), "`[a]bduct' 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."

The penalties for kidnapping are substantially more severe than the penalties for unlawful restraint. Unlawful restraint in the second degree, for example, is a class A misdemeanor; General Statutes *1111 § 53a-96 (b); punishable by a term of imprisonment of not more than one year. See General Statutes § 53a-36. Kidnapping in the second degree, however, is a class B felony; General Statutes § 53a-94 (b); punishable by up to twenty years imprisonment, a portion of which sentence may not be suspended.^[20] See General Statutes §§ 53a-35a and 53a-94 (b).

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. at 200, 811 A.2d 223; State v. Wilcox, supra, 254 Conn. at 465-66, 758 A.2d 824; State v. Amarillo, supra, 198 Conn. at 304-306, 503 A.2d 146; 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, 447 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);