source: Caselaw Access Project

author: MCDONALD, C. J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. ROBERT S. FOSTER
    (SC 16253)
    McDonald, C. J., and Borden, Palmer, Sullivan and Zarella, Js.

      Argued January 17
    officially released October 30, 2001

      DeanE. Popkin, with whom, on the brief, was Robert Berke, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Nicholas J. Bove, Sr., senior assistant state’s attorney, for the appellee (state).

       Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion was officially released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).
      The listing of justices reflects their seniority status on this court as of the date of oral argument.

   Opinion

MCDONALD, C. J.

The sole issue raised in this appeal is whether, under,article first, § 7, of the constitution of Connecticut, the trial court properly did not apply the exclusionary rule in a probation violation hearing. We answer that question in the affirmative and, therefore, affirm the judgment of the trial court.

The following facts are relevant to this issue. On April 15,1997, the defendant, Robert S. Foster, was convicted of the sale of a controlled substance in violation of General Statutes § 2 la-277 (b), for which he was sentenced to a term of five years imprisonment, execution suspended, with three years of probation. One of the conditions of the defendant’s probation was that he not possess narcotics, drugs or controlled substances.

Subsequently, on April 16, 1998, the defendant was arrested and charged with additional drug-related offenses. While the defendant was awaiting trial on these charges, the state, pursuant to General Statutes § 53a-32, charged him with violating the conditions of his probation. The record discloses that the following uncontested facts regarding the arrest were presented to the trial court: “On April [16], 1998, a Connecticut [s]tate [p]olice [o]fficer executing a warrant for David Bailey at 22 Calhoun Avenue, entered the residence through a door that was ajar. Upon entry, they observed . . . [the defendant] and the co-defendant exchanging [some] money. One of the officers observed . . . [the defendant] toss a plastic bag filled with [a] green plantlike substance onto the television set. A second warrant was sought and executed to conduct further search of the property. The following items were [found]: 1. $350 in cash. 2. A brown paper bag containing $3735. 3. A large plastic . . . bag containing a green plant like substance. 4. One brown paper bag containing $2956. 11

At the hearing on the probation violation, the defendant moved to suppress the seized items, relying on article first, § 7, of the constitution of Connecticut. The trial court denied that motion. Thereafter, the defendant pleaded nolo contendere to the violation of probation charge conditioned upon his right to appeal.

On appeal, the defendant claims that the trial court improperly refused to apply the exclusionary rule under article first, § 7, of the constitution of Connecticut. We disagree and, accordingly, affirm the judgment of the trial court.

In our consideration of whether to extend the protection provided by the Connecticut constitution beyond that afforded by the United States constitution, we may take into account several factors: the text of the relevant constitutional provisions; holdings and dicta of Connecticut appellate courts; federal precedent; sister state decisions; the historical approach, including the historical constitutional setting and the debates of the framers; and economic and sociological considerations. See State v. Geisler, 222 Conn. 672, 685-86, 610 A.2d 1225 (1992).

The defendant concedes that a textual analysis provides no support for his argument. The history of the exclusionary rule in Connecticut also does not support the defendant’s claim, for “[u]ntil the United States Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, reh. denied, 368 U.S. 871, 82 S. Ct. 23, 7 L. Ed. 2d 72 (1961), Connecticut courts did not exclude unconstitutionally seized evidence. . . . The Mapp decision abrogated our prior law that relevant evidence, although obtained by unreasonable search and seizure in violation of the federal constitution, was admissible in evidence in our state courts. ... It was not until our decision in State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988), that we concluded that article first, § 7, of the Connecticut constitution requires the exclusion of unconstitutionally seized evidence.” (Citations omitted; internal quotation marks omitted.) State v. Diaz, 226 Conn. 514, 535 n.13, 628 A.2d 567 (1993).

As for federal precedent, in Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 364, 118 S. Ct. 2014, 141 L. Ed. 2d 344 (1998), the United States Supreme Court concluded that the exclusionary rule under the fourth amendment does not apply in a revocation of parole proceeding. The court reasoned: “Application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches. . . .

“Because the exclusionary rule precludes consideration of reliable, probative evidence, it imposes significant costs: It undeniably detracts from the truthfinding process and allows many who would otherwise be incarcerated to escape the consequences of their actions. . . . Although we have held these costs to be worth bearing in certain circumstances, our cases have repeatedly emphasized that the rule’s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging application of the rule.” (Citation omitted; internal quotation marks omitted.) Id., 364-65. “The costs of excluding reliable, probative evidence are particularly high in the context of parole revocation proceedings. Parole is a variation on imprisonment of convicted criminals ... in which the [s]tate accords a limited degree of freedom in return for the parolee’s assurance that he will comply with the often strict terms and conditions of his release. In most cases, the [s]tate is willing to extend parole only because it is able to condition it upon compliance with certain requirements. . . . The exclusion of evidence establishing a parole violation . . . hampers the [sjtate’s ability to ensure compliance with these conditions by permitting the parolee to avoid the consequences of his noncompliance. The costs of allowing aparolee to avoid the consequences of his violation are compounded by the fact that parolees (particularly those who have already committed parole violations) are more likely to commit future criminal offenses than are average citizens. . . . Indeed, this is the very premise behind the system of close parole supervision.” (Citations omitted; internal quotation marks omitted.) Id., 365. The court concluded that, with respect to a parole revocation hearing, “[t]he deterrence benefits of the exclusionary rule would not outweigh these costs.” Id., 367.

This court’s precedents also support the conclusion that, under the circumstances in the present case, the exclusionary rule under article first, § 7, is inapplicable.

In Payne v. Robinson, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102 L. Ed. 2d 230 (1988), we concluded that, under the fourth amendment to the United States constitution, the exclusionary rule generally does not apply to probation revocation hearings. In Payne, the petitioner had filed a habeas corpus petition challenging the validity of the revocation of his probation, which was based upon evidence gathered from a warrantless search of his car. Id., 567-68. The petitioner was on probation at the time of the search, but the officer conducting the search had no knowledge of the probationary status. Id., 571.

We held that the exclusionary rule did not apply, reasoning as follows: “The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim .... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures .... Application of the rule is thus appropriate in circumstances in which this purpose is likely to be furthered. . . . Under this approach, we must weigh the potential injury to the probation revocation process from the exclusion of relevant evidence against the potential benefits of the rule as applied in this context. . . .

“The purpose of probation revocation proceedings is to determine whether a probationer is complying with the conditions of his probation. ... In such proceedings, the government has an interest in accurate fact-finding that is likely to be impaired when otherwise reliable and relevant evidence is excluded from the proceeding. . . . Against this interest, we must balance the deterrent effect that may result from applying the exclusionary rule to probation [revocation] hearings under the facts of this case.” (Citations omitted; internal quotation marks omitted.) Id., 570-71.

In Payne, we concluded that “application of the rule would at best achieve only a marginal deterrent effect. Illegally obtained evidence is inadmissible in a criminal trial. . . . Where, as here, there is no evidence that the police officer was aware that the suspect is on probation, further exclusion of such evidence in a probation revocation hearing would not appreciably enhance the deterrent effect already created by the inadmissibility of the evidence at trial. Since the use of evidence in a probation revocation hearing falls outside the offending officer’s zone of primary interest . . . exclusion of such evidence will not significantly affect a police officer’s motivation in conducting a search.” (Citations omitted; internal quotation marks omitted.) Id., 571.

In State v. Jacobs, 229 Conn. 385, 387-88, 641 A.2d 1351 (1994), officers obtained a warrant to search the defendant’s apartment, and evidence gathered from that search was admitted at his revocation of probation hearing. The defendant, relying on Payne v. Robinson, supra, 207 Conn. 573, argued, under the fourth amendment, that because the officers either knew, or should have known, of the defendant’s probationaiy status and because the warrants were defective, the fruits of the search should have been excluded in that hearing. State v. Jacobs, supra, 389-90. We concluded that “this is not an appropriate case for deciding whether the Payne dictum is correct. The presence of a warrant makes this case critically different, and leads us to conclude that this case presents the same balance of interests that we determined in Payne did not favor the application of the exclusionary rule .... Put another way, even if police officers know or have reason to know that the target of their search is on probation, the presence of a warrant sufficiently guards against the risk that, unless the exclusionary rule applies, the officers will not be deterred from performing an illegal search.” (Citation omitted; internal quotation marks omitted.) Id., 392.

In Jacobs, we specifically did not decide “whether the exclusionary rule would nonetheless apply if the search were performed pursuant to a warrant that was so patently defective that no reasonable police officer would have requested it and no reasonable judge would have issued it. It may be that such a circumstance would be the equivalent of egregious, shocking or harassing police misconduct that would require the application of the exclusionary rule to probation revocation proceedings. . . . This case does not present that factual scenario.” (Citation omitted.) Id., 394.

As in Jacobs, the search in the present case was made pursuant to a search warrant and does not present itself as one of egregious, shocking or harassing police misconduct. The search warrant was obtained after the state police, acting pursuant to an arrest warrant for Bailey, observed the defendant and Bailey engaged in a drug transaction. Furthermore, the defendant does not contest the legality of that search warrant. Moreover, the defendant made no offer of proof that the state police who discovered the evidence and executed the search warrant knew that he was on probation at the time. If the police were unaware of the defendant’s status, application of the exclusionary rule would provide no additional deterrence against illegal searches allegedly performed because he was on probation. Payne v. Robinson, supra, 207 Conn. 571. We therefore conclude that the present case, like Jacobs, does not require us to decide if a patently defective warrant or serious police misconduct would justify the application of the exclusionary rule.

The judgment is affirmed.

In this opinion the other justices concurred.

       The constitution of Connecticut, article first, § 7, provides: “The people shall be secure in their persons, houses, papers and possessions from unreasonable searches or seizures; and no warrant to search any place, or to seize any person or things, shall issue without describing them as nearly as may be, nor without probable cause supported by oath or affirmation.”

       General Statutes § 21a-277 (b) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with intent to sell or dispense, possesses with intent to sell or dispense, offers, gives or administers to another person any controlled substance, except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned; and, for each subsequent offense, may be fined not more than one hundred thousand dollars or be imprisoned not more than fifteen years, or be both fined and imprisoned.”

       General Statutes § 53a-32 provides in relevant part: “(a) At any time during the period of probation or conditional discharge, the court, or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge, or may issue a notice to appear to answer to a charge of such violation, which notice shall be personally served upon the defendant. . . . Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving such officer a written statement, setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of the defendant’s probation. . . . Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon . . . the court shall cause the defendant to be brought, before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which such defendant is alleged to have violated the conditions of such defendant’s probation or conditional discharge, shall be advised by the court that such defendant has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in such defendant’s own behalf.
      “(b) If such violation is established, the court may ... (4) revoke the sentence of probation or conditional discharge. ... No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by the introduction of reliable and probative evidence and by a preponderance of the evidence.”

       The state argues that the defendant cannot challenge the seizure of evidence from Bailey’s apartment because he has failed to establish that he had a legitimate expectation of privacy in that apartment. See State v. Hill, 237 Conn. 81, 96, 675 A.2d 866 (1996). Because we will assume, as the defendant represented to the trial court, that he was a resident of the apartment, we reject this argument.

       In Payne v. Robinson, supra, 207 Conn. 573, we stated that “in holding that the exclusionary rule does not apply to this case, we do not reach the question of whether the exclusionary rule would apply in probation revocation proceedings when the police officer who had conducted the search was aware or had reason to be aware of the suspect’s probationary status. If illegally obtained evidence was admissible in such circumstances, the police officer might very well discount the fact that such evidence was inadmissible at a criminal trial, believing that incarceration of the probationer would instead be achieved through the revocation of his probation. Application of the exclusionary rule to the probation [revocation] hearing might therefore contribute significantly to the deterrence of illegal searches.”
      The United States Supreme Court later rejected such an exception in Pennsylvania Board of Probation & Parole v. Scott, supra, 524 U.S. 367-68 (“The Pennsylvania Supreme Court thus fashioned a special rule for those situations in which the officer performing the search knows that the subject of his search is a parolee. We decline to adopt such an approach. We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence.”).

       The nature of the defendant’s challenge to the search and seizure was not made clear in the motion to suppress, in the arguments of his counsel at the probation revocation proceeding or in his brief.


author: PALMER, J. MCDONALD, C. J.,

text:
    STATE OF CONNECTICUT v. TONY NIEMEYER
    (SC 16232)
    McDonald, C. J., and Borden, Katz, Palmer and Vertefeuille, Js.

      Argued November 28, 2000
    officially released November 6, 2001

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Mary M. Galvin, state’s attorney, and Paul Gaetano, senior assistant state’s attorney, for the appellant-appellee (state).

      Pamela S. Nagy, special public defender, for the appellee-appellant (defendant).

       The listing of justices reflects their seniority status on this court as of the date of argument.
      Although Chief Justice McDonald reached the mandatory age of retirement before the date that this opinion officially was released, his continued participation on this panel is authorized by General Statutes § 51-198 (c).

   Opinion

PALMER, J.

This certified appeal requires us to determine whether the Appellate Court properly concluded that the evidence was insufficient to support the conviction of the defendant, Tony Niemeyer, for kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and (C), and, if not, whether the trial court’s jury instructions on that offense were proper. A jury convicted the defendant of one count of assault in the first degree in violation of General Statutes § 53a-59 (a) (3) and one count of kidnapping in the first degree. After the trial court rendered judgment in accordance with the jury verdict, the defendant appealed to the Appellate Court, which affirmed the defendant’s assault conviction but reversed his kidnapping conviction on the ground of insufficient evidence. State v. Niemeyer, 55 Conn. App. 447, 460, 740 A.2d 416 (1999). We granted the state’s petition for certification limited to the following issue: “Did the Appellate Court properly conclude that there was insufficient evidence to support a conviction for kidnapping in violation of ... § 53a-92 (a) (2) (A) and (C)?” State v. Niemeyer, 252 Conn. 916, 747 A.2d 517 (1999). We also granted the defendant’s petition for certification on the following issue: “If the [Appellate Court improperly concluded that there was insufficient evidence to support the defendant’s conviction for kidnapping in the first degree], should the trial court have given a specific unanimity charge when the defendant was charged under both . . . [subparagraphs (A) and (C) of] § 53a-92 (a) (2) . . . and the state argued that different evidence satisñed the different subparagraphs?” State v. Niemeyer, 252 Conn. 917, 744 A.2d 437 (1999). We conclude that, contrary to the determination of the Appellate Court, the evidence was sufficient to support the defendant’s kidnapping conviction. We also conclude that the defendant is not entitled to a new trial notwithstanding the trial court’s failure to give the unanimity charge. Accordingly, we reverse the judgment of the Appellate Court in part and remand the case to that court with direction to affirm the trial court’s judgment as to the defendant’s conviction of kidnapping in the first degree.

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “The defendant shared an apartment in Derby with [the victim], Dawn Siok, and her three children. On February 9, 1996, the defendant left the apartment to go to work on the 3:30 to 11 p.m. shift at Synthetic Products in Stratford. At approximately 11 p.m., [the victim] observed two individuals, known to her as Wayne and Joel, in her backyard. She invited them in and offered them . . . beer. The three then smoked a marijuana cigarette, and Joel left soon after. Shortly after midnight, the defendant returned and met Wayne, who was in the process of leaving.

“The defendant believed that Wayne and [the victim] had been having an affair and demanded to know what Wayne was doing in the apartment. [The victim] started backing into the master bedroom. The defendant [who was six feet, three inches tall and weighed 270 pounds] began hitting [the victim, who was five feet, two inches tall and weighed 110 pounds] in the stomach with a closed fist and calling her names. For the next two to three hours, the defendant repeated the cycle of assaulting [the victim], leaving the room for a short time and then returning to assault her again. At approximately 3 a.m., the defendant stopped beating [the victim] and told her to take a shower. [The victim] showered and then went to sleep in her daughters’ bedroom.

“[The victim] remained in bed for most of that day. She told the defendant in the morning that she needed to see a doctor and asked him in the afternoon to bring her to a hospital. At approximately 10:30 p.m., the defendant called an ambulance to take [the victim] to a hospital, but only on the condition that she promise not to have him arrested.

“Winston Reed, an emergency room physician, examined [the victim]. He observed bruising on her left arm, and on the upper third of her chest and left ear. [The victim’s] eyes were black and blue, and she complained of severe pain in the upper portion of her abdomen. Reed contacted Guy Nicastri, chief surgeon at the hospital, and asked him to examine [the victim]. Nicastri decided to operate and found that [the victim] was bleeding internally from a severed artery to her liver.

“The defendant remained with [the victim] during most of her time at the hospital. A few days after being admitted, however, [the victim] was alone with her mother and sisters and told them that the defendant had assaulted her. On February 15, 1996, [the victim] told the police of the assault, and the defendant was subsequently arrested.” State v. Niemeyer, supra, 55 Conn. App. 449-50.

On appeal, the Appellate Court held that the state had presented insufficient evidence to prove that the defendant had committed kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) and (C). Id., 460. In support of this conclusion, the Appellate Court stated that “there simply was no evidence from which the jury reasonably could infer that he restrained or abducted [the victim]. . . .

“There was no evidence that the defendant restricted [the victim’s] movement in any manner. The defendant did not force [the victim] into the master bedroom, tell her to remain there, prevent her from leaving the room or threaten her with violence if she left. [The victim] did not testify that she tried to escape and was prevented from doing so. She did not testify that she was afraid of the defendant and for this reason did not try to escape.” Id., 459-60.

On appeal to this court, the state maintains that, contrary to the determination of the Appellate Court, the jury reasonably found that the defendant had restrained and abducted the victim in violation of § 53a-92 (a) (2). The defendant contends otherwise and, in the alternative, claims that: (1) the state failed to prove an intent to terrorize under § 53a-92 (a) (2) (C); and (2) the trial court improperly failed to instruct the jury regarding the necessity of a unanimous verdict on the defendant’s guilt under either subparagraph (A) or (C) of § 53a-92 (a) (2). We are persuaded that the evidence was sufficient to support the defendant’s kidnapping conviction and reject the defendant’s claim of instructional impropriety. We, therefore, conclude that the Appellate Court improperly reversed the defendant’s kidnapping conviction.

I

We first address the state’s claim that the Appellate Court improperly determined that the evidence presented at trial was insufficient to warrant a finding by the jury that the defendant had abducted and restrained the victim, a finding required for conviction under § 53a-92 (a) (2) (A) or (C). Because we agree with the state, we also consider the defendant’s claim that the state failed to establish that the defendant abducted and restrained the victim with the intent to terrorize her as required under § 53a-92 (a) (2) (C). We reject the defendant’s claim and, consequently, conclude that the evidence adduced at trial was sufficient to warrant the defendant’s conviction of kidnapping in the first degree.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . This court cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict.” (Internal quotation marks omitted.) State v. Montgomery, 254 Conn. 694, 732, 759 A.2d 995 (2000).

“Furthermore, [i]n [our] process of review, it does not diminish the probative force of the evidence that it consists, in whole or in part, of evidence that is circumstantial rather than direct. ... It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. . . . Indeed, direct evidence of the accused’s state of mind is rarely available. . . . Therefore, intent is often inferred from conduct . . . and from the cumulative effect of the circumstantial evidence and the rational inferences drawn therefrom. . . . This does not require that each subordinate conclusion established by or inferred from the evidence, or even from other inferences, be proved beyond a reasonable doubt . . . because this court has held that a jury’s factual inferences that support a guilty verdict need only be reasonable.” (Citation omitted; internal quotation marks omitted.) State v. DeCaro, 252 Conn. 229, 239-40, 745 A.2d 800 (2000).

“[I]t is a function of the jury to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . Because [t]he only kind of an inference recognized by the law is a reasonable one . . . any such inference cannot be based on possibilities, surmise or conjecture. . . . It is axiomatic, therefore, that [a]ny [inference] drawn must be rational and founded upon the evidence. . . . However, [t]he line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion. If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable. At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment. . . .

“[PJroof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . . Thus, in determining whether the evidence supports a particular inference, we ask whether that inference is so unreasonable as to be unjustifiable. . . . In other words, an inference need not be compelled by the evidence; rather, the evidence need only be reasonably susceptible of such an inference. Equally well established is our holding that a jury may draw factual inferences on the basis of already inferred facts. . . . Moreover, [i]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence.” (Citations omitted; internal quotation marks omitted.) State v. Copas, 252 Conn. 318, 338-40, 746 A.2d 761 (2000).

“Finally, [a]s we have often noted, proof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the trier, would have resulted in an acquittal.

. . . On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. DeCaro, supra, 252 Conn. 240. Application of the foregoing principles to the facts adduced at trial leads us to conclude that the evidence was sufficient to support the jury’s verdict of guilty of kidnapping in the first degree and, in particular, that the defendant abducted and restrained the victim, and did so with the intent to terrorize her.

To establish the defendant’s commission of the crime of kidnapping in the first degree in violation of § 53a-92 (a) (2) (A) or (C); see footnote 1 of this opinion; the state was required to prove that the defendant abducted the victim and restrained her with the intent either to inflict physical injury on her or to terrorize her. Under General Statutes § 53a-91; see footnote 1 of this opinion; “ ‘[r]estrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by . . . confining him ... in the place where the restriction commences . . . [and] . . . ‘[ajbduct’ means to restrain a person with intent to prevent his liberation by . . . using or threatening to use physical force or intimidation.”

On the basis of the evidence, the jury reasonably could have concluded that the defendant intentionally backed the victim into the master bedroom so that he could inflict physical injury upon her. The jury also reasonably could have determined that the defendant’s initial attack upon the victim was intended to cause her such pain and fear that she would feel compelled to remain confined to the master bedroom, where he would continue to assault her over a period of several hours. The defendant’s repeated physical and verbal abuse of the victim while she lay seriously injured in the master bedroom further supports the conclusion that the defendant intended to cause the victim to be so fearful of him that she would feel compelled to stay in that room to avoid yet another violent confrontation with the defendant, who remained in the apartment with the victim all day. Finally, the fact that the victim left the bedroom only after being ordered to do so by the defendant, who, at that point, had concluded his repeated and vicious physical assault of the victim, demonstrates the extent to which the defendant sought to, and did, exert control over the victim and her movements. The evidence, therefore, was sufficient to permit the jury to find that the defendant forced the victim into the master bedroom and, through repeated physical and verbal abuse and intimidation, frightened her into remaining there for several hours. That is all that was required for the state to prove in the present case that the defendant had restrained and abducted the victim as those terms are defined in § 53a-91 for purposes of § 53a-92 (a) (2).

We acknowledge that the state did not specifically elicit testimony from the victim either that she was afraid of the defendant or that the defendant demanded that she remain in the master bedroom upon threat of serious harm. Moreover, there was no testimony that the victim tried to leave the bedroom and that the defendant physically prevented her from leaving. No such express testimony was necessaiy, however, to permit the jury reasonably to infer that the defendant, by virtue of his cruel and brutal conduct toward the victim, intended that she remain confined to the master bedroom for fear of what he would do to her if she left without his permission. Indeed, it was reasonable for the jury to have found that the victim would not have remained in the master bedroom for several hours, thereby subjecting herself to the possibility of more physical assaults by the defendant, if she believed that she could have avoided further confrontations simply by leaving the room.

“Kidnapping requires that there be an abduction. Abduction means restraint with the intent to prevent liberation. Whether in a given case the restraint is accompanied by the requisite intent, so as to constitute kidnapping, or is merely incidental to another felony, is ordinarily a question for the jury. . . . Where the requisite intent is present, the fact that the perpetrator’s underlying motive for the detention is the consummation of another crime . . . does not preclude a conviction for kidnapping.” (Citations omitted.) State v. Lee, 177 Conn. 335, 343-44, 417 A.2d 354 (1979); see also State v. Vass, 191 Conn. 604, 614-15, 469 A.2d 767 (1983) (“[t]his court has repeatedly held that if the state proves all of the elements of kidnapping, including the specific intent to restrain, beyond a reasonable doubt, the defendant may be convicted of kidnapping in addition to another felony, even though the two offenses arose out of the same conduct”). We are persuaded that, in light of the totality of the evidence, the jury reasonably concluded that the defendant, through his repeated use of extreme physical force and intimidation, restrained the victim with the intent to prevent her liberation.

We also conclude that the evidence was sufficient to warrant a finding by the jury that the defendant intended to terrorize the victim. “Section 53a-92 (a) (2) (C) criminalizes conduct in which the perpetrator not only abducts an individual, but in addition thereto engages in conduct specifically intended to cause the abductee ... to experience intense . . . stark fear.” (Internal quotation marks omitted.) State v. Dyson, 238 Conn. 784, 798, 680 A.2d 1306 (1996). The evidence in the present case satisfied this standard. The defendant, who is six feet, three inches tall, and who weighed 270 pounds, inflicted physical injury on the victim that was so severe that she required life-saving surgery. Moreover, he did so repeatedly, returning to the bedroom again and again to continue his attack upon the victim. It is difficult to imagine a scenario more likely to instill fear- and apprehension in a person. Indeed, the victim testified that it seemed as if the assault had lasted “forever,” and that she had agreed to the defendant’s demand that she not reveal the true source of her injuries because she was “scared . . . [a]iter what [she] just went through” and urgently needed medical attention. Moreover, the defendant called the victim “every name he could possibly think of’ and refused to call for medical assistance until nearly twenty-four hours after he had initiated his series of nearly fatal assaults on the victim. This evidence clearly was sufficient to permit a finding by the jury that the defendant intended to terrorize the victim.

II

The defendant claims that he is entitled to a new trial on the kidnapping charge because the trial court’s jury instructions violated his right to a unanimous verdict on that charge. Specifically, the defendant contends that the trial court improperly instructed the jury that its verdict need not be unanimous with respect to whether the defendant abducted and restrained the victim with the intent to inflict physical injury as required by § 53a-92 (a) (2) (A), or with the intent to terrorize her as required by § 53a-92 (a) (2) (C). We reject the defendant’s claim that the challenged instruction entitles him to a new trial.

In a case such as this one, in which the trial court’s instructions “can be read to have sanctioned ... a nonunanimous verdict ... we will remand for a new trial only if (1) there is a conceptual distinction between the alternative acts with which the defendant has been charged, and (2) the state has presented evidence to support each alternative act with which the defendant has been charged.” State v. Famiglietti, 219 Conn. 605, 619-20, 595 A.2d 306 (1991); accord State v. Dyson, supra, 238 Conn. 792; State v. Reddick, 224 Conn. 445, 453, 619 A.2d 453 (1993). “Alternative bases of liability are not conceptually distinct if the two ways [of committing the crime] are practically indistinguishable.” (Internal quotation marks omitted.) State v. Suggs, 209 Conn. 733, 761, 553 A.2d 1110 (1989); accord State v. Smith, 212 Conn. 593, 605, 563 A.2d 671 (1989). Moreover, our determination whether the instruction constituted harmful error “turns, not only on the language of the two statutory subsections or elements, but also on the evidence in the case and how the case is presented to the jury in the court’s instructions.” State v. Velez, 17 Conn. App. 186, 199, 551 A.2d 421 (1988), cert. denied, 210 Conn. 810, 556 A.2d 610, cert. denied, 491 U.S. 906, 109 S. Ct. 3190, 105 L. Ed. 2d 698 (1989).

The two mens rea requirements at issue in the present case, namely, the intent to inflict physical injury; see General Statutes § 53a-92 (a) (2) (A); and the intent to terrorize; see General Statutes § 53a-92 (a) (2) (C); can involve two different and conceptually distinct mental states. For example, one easily can conceive of circumstances in which an accused abducts and restrains a person intending to cause that person great fear and anxiety without also intending any accompanying physical harm or injury. Indeed, it also is possible for a person to intend to inflict physical injury on another person without also intending to terrorize that person. The question, however, is not whether hypothetical scenarios exist in which the two statutory subparagraphs are conceptually distinct but, rather, whether that conceptual distinction is meaningful in the context of this case.

We conclude that there is no such distinction under the facts of this case. The evidence established that the defendant taunted and assaulted the victim for a protracted period, causing her both serious physical injury and great fear. In such circumstances, it borders on the preposterous to think that a jury could have believed that the defendant intended to cause the victim either serious physical injury or terror but not both.

The defendant claims that the trial court’s instruction was harmful because the state relied on different evidence to prove a violation of each of the two statutory subparagraphs. In support of this contention, the defendant relies on the fact that the prosecutor, during closing arguments, referred to the defendant’s refusal to obtain medical assistance for the victim as a basis for the jury to find that the defendant intended to terrorize her. The defendant claims that, because this conduct occurred after the defendant had finished inflicting physical injury on the victim, the evidence establishing the defendant’s intent to inflict physical injury and the evidence establishing his intent to terrorize were different, thereby giving rise to the possibility of a nonunanimous verdict.

We are not persuaded by this argument. There is nothing in the prosecutor’s argument or in the trial court’s instructions to suggest that the jury was not free to consider all of the evidence adduced at trial in evaluating the defendant’s culpability under the two statutory subparagraphs. Moreover, the jury, by virtue of its guilty verdict on the charge of assault in the first degree, found that, on the basis of the evidence proffered by the state, the defendant intentionally and brutally beat the victim over a prolonged period of time. As we have indicated, it is virtually inconceivable, on the basis of that evidence alone, for the jury possibly to have reached a conclusion other than that the defendant also intended to terrorize the victim. Thus, the fact that the jury may have considered the defendant’s postassault conduct in assessing the defendant’s intent does not undermine the conclusion that the two statutory subparagraphs are conceptually indistinct in the circumstances of this case.

Furthermore, “we fail to see how the remote possibility that the jurors disagreed on the precise nature of the defendant’s intent implicates a lack of unanimity regarding the defendant’s conduct. Whether alternative bases of liability are conceptually distinct ordinarily focus [es] ... on actus reus components. . . . Where, as in the present case, the alternatives of the mens rea component give rise to the same criminal culpability, it does not appear critical that the jury [theoretically] may have reached different conclusions regarding the nature of the defendant’s intent if such differences do not reflect disagreement on the facts pertaining to the defendant’s conduct.” (Citation omitted; internal quotation marks omitted.) State v. Suggs, supra, 209 Conn. 763.

The judgment of the Appellate Court is reversed in part and the case is remanded to that court with direction to affirm the trial court’s judgment of conviction of kidnapping in the first degree. The judgment of the Appellate Court is affirmed in all other respects.

In this opinion BORDEN, KATZ and VERTEFEUILLE, Js., concurred.

MCDONALD, C. J.,

concurring. Although I agree with the majority that the conviction of the defendant, Tony Niemeyer, for kidnapping in the first degree should be upheld, I write separately to express the view that the kidnapping statute; General Statutes § 53a-92; with its severe penalties should apply only “to true kidnapping situations and not . . . apply ... to crimes which are essentially robbery, rape or assault and in which some confinement or asportation occurs as a subsidiary incident.” People v. Lombardi, 20 N.Y.2d 266, 270, 229 N.E.2d 206, 282 N.Y.S.2d 519 (1967). In Lombardi, the New York Court of Appeals had before it New York’s kidnapping statute; N.Y. Penal Law § 135.25; upon which our kidnapping statute was modeled.

In People v. Gonzalez, 80 N.Y.2d 146, 153, 603 N.E.2d 938, 589 N.Y.S.2d 833 (1992), that court later said “[t]he guiding principle is whether the restraint was so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them.” (Internal quotation marks omitted.) Where the abduction and the underlying crime are not discrete but simultaneous and there is a minimal asportation immediately preceding another offense, the abduction should not be considered a kidnapping. Where, however, the manner of abduction is egregious, the New York Court of Appeals concluded that, regardless of other circumstances, a kidnapping does occur. Id.

The evidence in this case was that the defendant walked toward the victim in a threatening manner, and she retreated into her bedroom. The defendant followed her into that room and beat her over a period of two to three hours, bruising her, blackening her eyes and severing an artery to her liver. While doing so, he continued to berate her in a jealous rage and spit in her face. Like the victim in Gonzalez, the victim here was “subjected to a prolonged episode of unremitting terror and physical brutality.” (Internal quotation marks omitted.) Id. I would conclude that the evidence of restraint supports the conviction for kidnapping. The jury could find that restraint was not “merely incidental” to the assault. State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979).

       General Statutes § 53a-92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually ... or (C) terrorize him or a third person . . . .”
      General Statutes § 53a-91 defines the terms “restrain” and “abduct” for purposes of § 53a-92. General Statutes § 53a-91 provides in relevant part: “(1) ‘Restrain’ 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. . . .
      “(2) ‘Abduct’ 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. . . .”

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when ... (3) under circumstances evincing an extreme indifference to human life he recklessly engages in conduct which creates a risk of death to another person, and thereby causes serious physical injury to another person . . . .”

        The legislature amended § 53a-59 in 1999. See Public Acts 1999, No. 99-240, § 13. That amendment is not relevant to this appeal. For convenience, we refer to the current revision of § 53a-59.

       The trial court sentenced the defendant to a term of imprisonment of fifteen years, execution suspended after ten years, on the assault count, and a consecutive term of imprisonment of ten years, execution suspended after five years, on the kidnapping count, for a total effective term of imprisonment of twenty-five years, execution suspended after fifteen years. The trial court also sentenced the defendant to five years probation.

       On appeal to the Appellate Court, the defendant claimed that “the trial court improperly (1) admitted the testimony of the state’s expert witness on battered woman’s syndrome without a proper foundation, (2) committed plain error by not giving a limiting instruction, sua sponte, as to the expert’s testimony, (3) denied his motion for judgment of acquittal as to the kidnapping charge and (4) failed to instruct the jury on the specific intent required lor kidnapping in the first degree.” State v. Niemeyer, 55 Conn. App. 447, 448-49, 740 A.2d 416 (1999). The Appellate Court rejected the defendant’s first two claims; id., 457; agreed with the defendant’s claim of evidentiary insufficiency; id. ,460; and did not reach the defendant’s claim of instructional impropriety in light of its conclusion that the evidence did not support the jury’s verdict of guilty of kidnapping in the first degree. Id.

       The defendant’s conviction of assault in the first degree is not a subject of this appeal.

       The defendant was the victim’s boyfriend and the biological father of two of the victim’s three children, all of whom were under four years of age when the defendant assaulted the victim.

       Wayne and Joel were eighteen and seventeen years old, respectively.

       According to the victim, the defendant called her “every name he could possibly think of,” including a racially derogatory name stemming from the fact that Wayne is African-American and the victim is Caucasian.

       According to the victim, although the defendant had stopped physically assaulting her at this point, he came into the room in which she was staying “every once in awhile” and “sp[a]t in [her] face.”

       On several occasions following his arrest, the defendant threatened to harm the victim if she testified against him at trial.

       The defendant’s control over the victim also is reflected in the fact that he refused to aid her in obtaining medical assistance until she agreed to fabricate a story regarding the source of her injuries.

       Of course, the issue before us is the sufficiency of the state’s proof regarding the intent of the defendant, not the state of mind of the victim. The likely effect of the defendant’s conduct on the victim’s state of mind is relevant, however, to our determination whether the jury reasonably could have concluded that the defendant’s conduct was calculated to cause the victim to remain confined to the master bedroom, not because she wished to stay there but, rather, because she was afraid to leave.

       Of course, 1he defendant also sought to cause the victim physical injury. That intent is fully consistent with an intent to terrorize the victim under the facts of this case. See part II of this opinion.

       When a nonpetty offense is tried to a six person jury, as in the present case, the sixth and fourteenth amendments to the United States constitution entitle the defendant to a unanimous verdict. Burch v. Louisiana, 441 U.S. 130, 138, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979); State v. Bailey, 209 Conn. 322, 332, 551 A.2d 1206 (1988); see also Practice Book § 42-29 (requiring unanimous verdict in criminal jury cases). In Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991), the United States Supreme Court indicated that an accused’s right to a unanimous verdict in regard to the elements of a criminal statute providing alternative means by which the same offense may be committed is “more accurately characterized as a due process right than as one under the Sixth Amendment.” Id., 634 n.5.

       The trial court instructed the jury in relevant part: “In order to find the defendant guilty of ... § 53a-92 (a) (2) (A) . . . the state must prove the following elements beyond a reasonable doubt: one, that the defendant abducted [the victim]; two, that he unlawfully restrained her; and three, that he did so with the intent to inflict physical iryury on her. The term ‘abduct’ means to restrain a person with intent to prevent her liberation by using or threatening to use physical force or intimidation. Abduction need not be proved by establishing the use of force if the proof establishes that the defendant threatened its use in such a manner that the victim reasonably believed that force would be applied to her if she sought to escape or thwart the abductor’s intention. The term ‘restrain’ means to restrict a person’s movements intentionally and unlawfully in such a manner as to interfere substantially with that person’s liberty by moving her from one place to another or by confining her either in the place where the restriction commences or in a place to which she has been moved without consent [and] includes but is not limited to deception. Physical injury means impairment of physical condition or pain .... It is not necessary that actual physical injury is proven as long as you determine that the defendant intended to inflict the same and abducted and restrained the victim with such intent. Intent relates to the condition of mind of the person who commits the act, in other words, his purpose in doing it. As defined by our statute, a person acts intentionally with respect to a result, or conduct described by a statute defining an offense, when his conscious objective is [to] cause such result or engage in such conduct. What a person’s purpose, intention or knowledge has been is usually a matter to be determined by inference. No person is able to testify that he looked into another’s mind and saw therein a certain purpose or intention or certain knowledge to do harm to another. The only way in which a jury can ordinarily determine what a person’s purpose, intention or knowledge was, at any given time, aside from that person’s own statement or testimony, is by determining what that person’s conduct was and what the circumstances were surrounding that conduct, and from those, infer what his purpose, intention or knowledge was. Now, in order to find the defendant guilty of . . . [§ 53a-92 (a) (2) (C)], the state must prove the following elements beyond a reasonable doubt: one, that the defendant abducted [the victim]; two, that he unlawfully restrained her; and three, that he did so with the intent to terrorize her. I have already explained to you what is meant by the terms abduct, restrain and intent. To terrorize a person is to engage in conduct which causes such person to experience intense, stark fear. Now, while you must, of course, be unanimous as to whether the state has proven each of the elements of kidnapping in the first degree beyond a reasonable doubt in order to convict the defendant of this charge, you need not be unanimous with respect to whether he abducted and restrained [the victim] with the intent to inflict physical injury on her or to terrorize her. Of course, if you find that the state has failed to prove beyond areasonable doubt any one of such elements, then you must find the defendant not guilty as to the second count of the information. ” (Emphasis added.)

       “In essence, the unanimity requirement . . . requires the jury to agree on the factual basis of the offense. The rationale underlying the requirement is that a jury cannot be deemed to be unanimous if it applies inconsistent factual conclusions to alternative theories of criminal liability.” (Internal quotation marks omitted.) State v. Suggs, 209 Conn. 733, 761, 553 A.2d 1110 (1989), quoting State v. Bailey, 209 Conn. 322, 334, 551 A.2d 1206 (1988).


author: PALMER, J.

text:
    DEBORAH LISEE v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (SC 16419)
    Sullivan, C. J., and Norcott, Palmer, Vertefeuille and Zarella, Js.

      Argued April 27
    officially released November 6, 2001

      Albert Zakarian, with whom were Suzanne Garrow and, on the brief, Meredith G. Diette, for the appellant (defendant Aetna Retirement Services, Inc.).

      Charles Krich, with whom was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).

      Robert J. Williams, Jr., for the appellee (plaintiff).
   Opinion

PALMER, J.

The defendant, Aetna Retirement Services, Inc. (Aetna), appeals from the trial court’s order remanding the administrative appeal of the plaintiff, Deborah Lisee, from the decision of the named defendant, the commission on human rights and opportunities (commission), dismissing the plaintiffs disability discrimination complaint against Aetna, the plaintiffs former employer. On appeal, Aetna claims that the remand order was not statutorily authorized and that the trial court exceeded its statutory authority in failing to affirm the commission’s decision to dismiss the plaintiffs complaint in view of the substantial evidence to support that decision. The commission contends that this court lacks subject matter jurisdiction over Aetna’s appeal because the trial court’s remand order is not an appealable final judgment. We agree with the commission and, accordingly, dismiss Aetna’s appeal. We, therefore, do not reach the merits of Aetna’s claims.

The relevant facts and procedural history are undisputed. On February 24, 1998, the plaintiff filed a complaint with the commission alleging that Aetna had terminated her employment and had failed to accommodate reasonably her disability stemming from certain ailments of her hips and back in violation of General Statutes §§ 46a-58 (a) and 46a-60 (a) (l), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. The commission conducted an investigation of the plaintiffs allegations and, on February 11, 1999, issued a notice of final agency action in which it found no reasonable cause to believe that the plaintiff had been terminated or denied reasonable accommodations as a result of her disability. The commission thereupon dismissed the plaintiffs complaint.

The plaintiff appealed to the trial court from the commission’s decision dismissing her complaint. The trial court held a hearing on February 10, 2000, at which it entertained argument on the issue of whether Aetna had provided the plaintiff with reasonable accommodations as required under applicable federal and state law. Upon conclusion of the hearing, Aetna sought leave to file a supplemental brief on that issue, and the trial court granted the parties two weeks in which to file additional briefs. The court scheduled further argument for March 23, 2000.

In the meantime, on February 24, 2000, the commission filed a motion to remand the case to itself so that it could conduct further investigation and make a new probable cause determination. In its motion, the commission represented that the plaintiff had no objection to its motion. Aetna, however, did object to the commission’s motion. At the hearing before the trial court on March 23, 2000, the commission contended that a remand was required because the commission investigator had failed both to interview certain witnesses and to review certain records concerning Aetna’s Return to Work program.

On March 27,2000, the trial court granted the commission’s motion to remand, and Aetna appealed to the Appellate Court. The commission then filed a motion for articulation of the trial court’s decision. Specifically, the commission sought clarification as to whether the trial court’s remand order was intended to be a final judgment. In its ruling on the motion for articulation, the trial court stated: “On February 10, 2000, this case was presented at oral argument and further briefing was allowed. In the meanwhile, before a further hearing on the merits and before judgment, [the commission] moved on February 24,2000, to remand. Aetna objected and the court, heard argument on this motion. The motion of [the commission] to remand was granted on March 27, 2000, pursuant to [General Statutes] § 4-183 (h) and Gervasoni v. McGrath, 36 Conn. Sup. 297 [418 A.2d 952] (1980). Accordingly, this court is retaining jurisdiction over this case.”

Thereafter, the commission filed with the Appellate Court a motion to dismiss Aetna’s appeal “on the ground that it ha[d] not been taken from a final judgment.” The Appellate Court denied the motion without prejudice, allowing the parties to address the final judgment issue in their briefs on the merits of the appeal. Aetna thereafter filed a motion to transfer the appeal to this court from the Appellate Court, which we granted pursuant to General Statutes § 51-199 (c) and Practice Book § 65-2.

General Statutes § 4-184 restricts an appellate court’s subject matter jurisdiction in the context of administrative appeals to appeals from final judgments. Therefore, we must first address the commission’s claim that the trial court’s remand order is not a final judgment and that, consequently, this court lacks subject matter jurisdiction over the appeal. See State v. Curcio, 191 Conn. 27, 30, 463 A.2d 566 (1983) (“[b]ecause our jurisdiction over appeals ... is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the [appeal]”). We conclude that the trial court’s remand order is not an appealable final judgment.

General Statutes § 4-183 (j), which took effect in 1989; see Public Acts 1988, No. 88-317, §§ 23, 107 (P.A. 88-317); provides in relevant part that, “[f] or purposes of this section, a remand is a final judgment.” (Emphasis added.) Aetna contends that, under the plain language of § 4-183 (j), a remand to an administrative agency pursuant to any subsection of § 4-183, including the remand ordered by the trial court in the present case pursuant to subsection (h) of § 4-183, is a final judgment for purposes of § 4-184. Aetna also relies on this court’s dicta in Jones v. Crystal, 242 Conn. 599, 699 A.2d 961 (1997), and Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, 233 Conn. 486, 659 A.2d 714 (1995), that, under § 4-183 (j), “any remand to the administrative [agency] is a final judgment for purposes of an appeal.” Jones v. Crystal, supra, 602 n.4, citing Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 496; see also Johnston v. Salinas, 56 Conn. App. 772, 774 n.4, 746 A.2d 202 (2000) (“§ 4-183 [j] specifically deems remand orders to be final judgments”); Dacey v. Commission on Human Rights & Opportunities, 41 Conn. App. 1, 5, 673 A.2d 1177 (1996) (stating in dictum that, “[p]ursuantto ... § 4-183 [j], a remand order in an administrative appeal is a final judgment”). We disagree with Aetna and conclude, instead, that the conclusion that logically flows from this court’s holding and analysis in Schieffelin & Co. v. Dept. of Liquor Control, 202 Conn. 405, 406, 409-12, 521 A.2d 566 (1987) (Schieffelin) (holding that trial court’s order remanding case to administrative agency for further proceedings was not final judgment), that some remand orders in administrative appeals are not appealable final judgments, survived the subsequent enactment of § 4-183 (j).

The issue of whether the trial court’s remand order is a final judgment under § 4-183 (j) is a matter of statutory interpretation. “In construing statutes, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 79, 84, 743 A.2d 156 (1999).

We first review the history of § 4-183 (j). “In 1988, to make administrative procedures more uniform, the legislature passed P.A. 88-317, which extensively amended Comecticut’s statutory administrative procedures. See Conn. Joint Standing Committee Hearings, Judiciary, Pt. 2, 1988 Sess., p. 377.” Bittle v. Commissioner of Social Services, 249 Conn. 503, 513, 734 A.2d 551 (1999). As part of those amendments, subsection (g) of General Statutes (Rev. to 1987) § 4-183 was redesignated as subsection (]); see footnote 12 of this opinion; and, among other changes, the following sentence was added: “For purposes of this section, a remand is a final judgment.” P.A. 88-317, § 23.

Prior to the passage of P.A. 88-317, § 23, this court had subjected remands in administrative appeals to the same analysis as rulings in other judicial proceedings for puiposes of determining whether they were appeal-able final judgments. Generally, we recognized that “[a]n otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” State v. Curcio, supra, 191 Conn. 31.

In Scliieffelin, we concluded that “[t]here is no reason why administrative appeals should not be governed by the principles of Curdo .... A [ruling] by a trial court ordering further administrative proceedings cannot meet the first prong of the Curdo test . . . because, whatever its merits, the trial court’s order has not terminate[d] a separate and distinct proceeding. The more difficult question is whether the trial court’s order so concludes the rights of the parties that further proceedings cannot affect them.

“Under our existing case law, we have distinguished, with reference to that question, between two kinds of administrative remands. A trial court may conclude that an administrative ruling was in error and order further administrative proceedings on that very issue. In such circumstances, we have held the judicial order to be a final judgment, in order to avoid the possibility that further administrative proceedings would simply reinstate the administrative ruling, and thus would require a wasteful second administrative appeal to the Superior Court on that very issue. See, e.g., Watson v. Howard, 138 Conn. 464, 468, 86 A.2d 67 (1952); Santos v. Publix Theatres Corporation, 108 Conn. 159, 161, 142 A. 745 (1928). A trial court may alternatively conclude that an administrative ruling is in some fashion incomplete and therefore not ripe for final judicial adjudication. Without dictating the outcome of the further administrative proceedings, the court may insist on further administrative evidentiary findings as a precondition to final judicial resolution of all the issues between the parties. See General Statutes [Rev. to 1987] § 4-183 (e). Such an order is not a final judgment. See, e.g., Burdick v. United States Finishing Co., 128 Conn. 284, 288-89, 22 A.2d 629 (1941); Luliewicz v. Eastern Malleable Iron Co., 126 Conn. 522, 524,12 A.2d 779 (1940).” (Internal quotation marks omitted.) Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. 409-10. We concluded in Schieffelin that, because the trial court in that case had not ruled on the merits of the issue on which it had remanded to the agency for evidentiary findings, the remand order was not a final judgment. Id., 411-12.

Aetna’s claim that § 4-183 (j) applies to all remand orders in administrative appeals presupposes that, in adding the language “[f]or purposes of this section, a remand is a final judgment”; P.A. 88-317, § 23; to § 4-183, the legislature intended to overrule Schieffelin, which stands for the proposition that, under the Curdo test, some remand orders in administrative appeals are not appealable final judgments. For the following reasons, we are not persuaded that the legislature had any such intention.

First, we note that the penultimate sentence of General Statutes § 4-183 (j) provides that, “[i]f the court finds [that the rights of the person appealing from the decision of an agency have been] prejudice[d], it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings.” The next and last sentence of subsection (j) contains the language that Aetna relies on, namely, that, “[f]or purposes of this section, a remand is a final judgment.” General Statutes § 4-183 (j). The proximity of these two sentences clearly suggests that the remand referred to in the last sentence is the remand referred to in the preceding sentence, namely, a remand upon sustaining the appeal, notwithstanding the use of the word “section” rather than the word “subsection” in the last sentence of § 4-183 (j). See, e.g., Soares v. Max Services, Inc., 42 Conn. App. 147, 159, 679 A.2d 37, cert. denied, 239 Conn. 915, 682 A.2d 1005 (1996) (proximity of statutory provisions or lack thereof may reveal legislative intent); see also Weinberg v. ARA Vending Co., 223 Conn. 336, 343, 612 A.2d 1203 (1992) (“where the same words are used in a statute two or more times they will ordinarily be given the same meaning in each instance” [internal quotation marks omitted]). This construction is consistent with our holding in Schieffelin that only a remand after a determination on the merits of the appeal is a final judgment.

Second, we note that subsection (j) is the only subsection of § 4-183 that specifically refers to remands. The trial court in the present case relied on § 4-183 (h) as authority to order further fact-finding, and characterized its order as a remand order. Although we agree that that is a fair characterization of the order, we note that § 4-183 (h) does not use that terminology, but simply authorizes the trial court to “order that . . . additional evidence be taken before the agency upon conditions determined by the court.” This language supports a determination that the legislature did not intend that the remand referred to in the last sentence of § 4-183 Q), which, as we have explained, has a clear prior referent in that subsection, would include an order for additional fact-finding pursuant to § 4-183 (h).

Third, “ [i]n determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope. . . . Although the legislature may eliminate a common law right by statute, the presumption that the legislature does not have such a purpose can be overcome only if the legislative intent is clearly and plainly expressed. . . . We recognize only those alterations of the common law that are clearly expressed in the language of the statute because the traditional principles of justice upon which the common law is founded should be perpetuated.” (Internal quotation marks omitted.) Rumbin v. Utica Mutual Ins. Co., 254 Conn. 259, 265-66, 757 A.2d 526 (2000). “[W]e presume that the legislature is aware of the judicial construction placed upon its enactments. . . . [Schieffelin] put the legislature on notice that if it intend[ed] [for all remand orders in administrative appeals, including those that do not meet the Curdo test, to be treated as final judgments], it [needed to] make that intent clear.” (Citation omitted; internal quotation marks omitted.) State v. Parra, 251 Conn. 617, 634-35, 741 A.2d 902 (1999). Section 4-183 (j) contains no such clearly expressed intent.

Finally, we previously have recognized that “[a]dherence to the final judgment rule is not dictated by legislative fiat alone.” State v. Curcio, supra, 191 Conn. 30. “Limiting appeals to judgments that are final serves the important public policy of minimizing interference with and delay in the resolution of trial court proceedings.” Madigan v. Madigan, 224 Conn. 749, 752-53, 620 A.2d 1276 (1993). We note, moreover, that “P.A. 88-317 was adopted to provide the consumer who is using our administrative processes with the same kind of level playing field . . . that one would have in using our judicial system.” (Internal quotation marks omitted.) Bittle v. Commissioner of Social Services, supra, 249 Conn. 514, quoting 31 S. Proc., Pt. 7, 1988 Sess., p. 2482, remarks of Senator James H. Maloney. Thus, the legislature intended that administrative appeals and other judicial proceedings be treated similarly, and that considerations of fairness and efficiency underlying the rules governing judicial proceedings also be of primary importance in administrative proceedings. This further supports the view that the legislature intended that the Curcio test for final judgments, which is applicable to rulings in judicial proceedings, also apply to rulings in administrative appeals.

For all of the foregoing reasons, we cannot conclude that when the legislature enacted § 4-183 (j), it intended to overrule our conclusion in Schieffelin that, for the purpose of determining appellate jurisdiction, rulings in administrative appeals generally are subject to the Curcio final judgment test. Schieffelin & Co. v. Dept. of Liquor Control, supra, 202 Conn. 409. Rather, we conclude that the legislature intended to codify that decision as it applies to remands after rulings on the merits of an administrative appeal. In the present case, as in Schieffelin, there has been no such ruling. Instead, the trial court concluded that, on the basis of the inadequacy of the administrative record, it could not rule on the merits of the plaintiffs appeal without additional fact-finding by the commission. Accordingly, we conclude that the trial court’s order remanding the case to the commission for additional fact-finding was not a final judgment and, therefore, that this court lacks subject matter jurisdiction over Aetna’s appeal.

The appeal is dismissed.

In this opinion the other justices concurred.

       The plaintiff named Aetna Life and Casualty Company, which became Aetna Services, Inc., as the respondent in her affidavit of illegal discriminatory practice, which she filed with the commission on human rights and opportunities. Aetna Retirement Services, Inc., was a division of Aetna Life and Casualty Company with which the plaintiff formerly was employed.

       The plaintiff did not brief the subject matter jurisdictional claim raised by the commission but, at oral argument before this court, indicated that she joined in that claim.

       General Statutes § 46a-58 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section for any person to subject, or cause to be subjected, any other person to the deprivation of any rights, privileges or immunities, secured or protected by the constitution or laws of this state or of the United States, on account of . . . physical disability.”

       General Statutes § 46a-60 provides in relevant part: “(a) It shall be a discriminatory practice in violation of this section:
      “(1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual's . . . physical disability . . . .”

       Aetna’s Personnel Policies and Programs Manual, which covers, among other things, work-related and nonwork-related disabilities, describes Aetna’s Return to Work program. Itprovides in relevantpart: “Aetna’s Return to Work program offers employees whose disability extends past the [family and medical leave] protected time and whose job is filled, a four week paid period to seek another position.
      * ** *
      “Eligible employees returning to work after the protected period (or, if greater, the period of time required by law) where no job is available (not necessarily the same job and salary) are placed on the payroll for a four week paid period while the employee explores alternate positions. If the employee does not obtain a job offer within that timeframe, he/she is terminated and is eligible for severance pay.” (Emphasis in original.)

       The commission filed its motion for articulation on May 8, 2000, and the trial court issued its ruling on that motion on May 31, 2000.

       General Statutes § 4-183 (h) provides: “If, before the date set. for hearing on the merits of an appeal, application is made to the court for leave to present additional evidence, and it is shown to the satisfaction of the court that the additional evidence is material and that there were good reasons for failure to present it in the proceeding before the agency, the court, may order that the additional evidence be taken before the agency upon conditions determined by the court. The agency may modify its findings and decision by reason of the additional evidence and shall file that evidence and any modifications, new findings, or decisions with the reviewing court.”

       In Gervasoni v. McGrath, supra, 36 Conn. Sup. 302, the trial court, which had before it an administrative appeal, granted the plaintiffs motion to remand to the defendant agency so that it could reinterview a witness whose original testimony transcript contained numerous omissions and errors. In granting the motion, the court examined the statutory scheme of § 4-183 and concluded that “[e]ommon sense . . . indicate^] that where an agency record is incomplete for one reason or another, a remand to the agency to take additional evidence is the only method by which the court can assure meaningful judicial review.” Id., 301.

       The record contains a judgment file, which was prepared on March 27, 2000, but not filed with the trial court until April 24, 2000, indicating that the trial court, rendered judgment sustaining the plaintiffs appeal “in accordance with the court’s granting of the defendant’s motion to remand.” The commission represented at oral argument before this court, however, that the entry of judgment was a clerical error, noting that the judgment was not signed by the trial court but, rather, by a court clerk on behalf of the trial court. In light of the statement in the trial court’s memorandum of decision, dated March 27, 2000, that it “should not have to malee its ultimate findings where the agency recognizes that there are defects in the record and asks to correct them in advance of judgment,” and its subsequent articulation of that decision on May 31, 2000, we conclude that the trial court did not intend to render judgment in favor of any party, including the plaintiff.

       General Statutes § 4-184 provides in relevant part: “An aggrieved party may obtain a review of any final judgment of the Superior Court under this chapter. . . .”

       General Statutes § 4-183 Q) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. For purposes of this section, a remand is a final judgment.”

       Public Act 88-317, § 23, redesignated some of the existing subsections in § 4-183, including subsection (g), which became what is now subsection (j). Some of the provisions of § 4-183 (j) previously had appeared in subsection (g) before the effective date of P.A. 88-317 and, thus, those provisions were in place before 1989. Compare General Statutes (Rev. to 1987) § 4-183 (g) with General Statutes § 4-183 (j). The relevant language quoted in the text accompanying this footnote, however, took effect on “July 1, 1989, and [is] applicable to all agency proceedings commenced on or after such date.” P.A. 88-317, § 107.

       General Statutes (Rev. to 1987) § 4-183 (g) provides: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

       General Statutes § 4-183 (k) provides: “If a particular agency action is required by law, the court, on sustaining the appeal, may render a judgment that modifies the agency decision, orders the particular agency action, or orders the agency to take such action as may be necessary to effect the particular action.”

       Because we conclude that we do not have jurisdiction to consider the merits of this appeal, we do not consider Aetna’s contention that the trial court improperly relied on § 4-183 (h) as the basis for its remand order.

       To the extent that this conclusion is inconsistent with our dicta in Jones v. Crystal, supra, 242 Conn. 602 n.4, and Connecticut Resources Recovery Authority v. Commissioner of Environmental Protection, supra, 233 Conn. 496, with the Appellate Court’s conclusion in Johnston v. Salinas, supra, 56 Conn. App. 774 n.4, and with dictum in Dacey v. Commission on Human Rights & Opportunities, supra, 41 Conn. App. 5, those cases are overruled.

       In light of our conclusion that we lack jurisdiction, we do not address the merits of Aetna’s claims that the trial court: (1) exceeded its statutory authority in failing to affirm the commission’s decision to dismiss the plaintiffs discrimination complaint; and (2) lacked the statutory authority to order further fact-finding.