author: SULLIVAN, J.

text:
    STATE OF CONNECTICUT v. RONALD ALBERT
    (SC 16059)
    McDonald, C. J., and Borden, Palmer, Sullivan and Callahan, Js.

      Argued February 16
    officially released May 4, 2000

      Suzanne Zitser, assistant public defender, with whom was Martin Zeldis, assistant public defender, for the appellant (defendant).

      Carolyn K. Longstreth, senior assistant state’s attorney, with whom were Anne F. Mahoney, assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).

       May 4, 2000, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

SULLIVAN, J.

The dispositive issue in this certified appeal is whether the Appellate Court properly concluded that the trial court correctly had instructed the jury regarding the meaning of “sexual intercourse,” as defined in General Statutes (Rev. to 1991) § 53a-65 (2), under the facts of this case. The defendant, Ronald Albert, appeals from the judgment of the Appellate Court affirming his conviction by the trial court, rendered after a jury trial, of sexual assault in the first degree in violation of General Statutes (Rev. to 1991) § 53a-70 (a) (2), and risk of injury to a child in violation of General Statutes (Rev. to 1991) § 53-21. Because we hold that the Appellate Court properly concluded that the trial court correctly had instructed the jury, we affirm the judgment of the Appellate Court.

The Appellate Court’s opinion sets forth the following facts that the juiy reasonably could have found. “On August 2,1992, the defendant attended a picnic at Globe Hollow Pond in Manchester with the victim, N, age three, her mother, her father and her brother. [The victim] referred to the defendant, her godfather, as Uncle Ronnie. [The victim] testified that while she and the defendant were swimming, the defendant put his hand underneath [the victim’s] bathing suit and touched her ‘inside’ her ‘crotch’ with his index finger. The touching caused pain and [the victim] screamed. After [the victim] screamed, the defendant told her not to tell anyone about the touching. When [the victim] started crying, her father took her out of the water and brought her to her mother. While she was crying, [the victim] said ‘bad Uncle Ronnie’ several times. Physical examinations by physicians shortly thereafter revealed two scrapes on the inside fold of [one of] the labia majora that were typical of recent sexual abuse. ” State v. Albert, 50 Conn. App. 715, 718, 719 A.2d 1183 (1998).

The following additional facts and procedural history are necessary to our disposition of this appeal. During cross-examination, defense counsel asked the victim’s psychologist, Kevin R. Conter: “Did [the victim] indicate to you if she had any reaction to the touch at the time the touch was allegedly made?” Conter answered: “[The victim] said that it hurt.”

The victim’s pediatrician, Wanda Merced, testified that she treated the victim on August 4, 1992, two days after the incident in question. Merced testified that, in taking the victim’s medical history, the victim had told Merced, in the presence of the victim’s mother, that the defendant had touched her “private part.” Merced testified that she observed two small scrapes on the victim’s labia majora and that the labia majora constituted “the outside of the vagina.” Merced farther testified that the scrapes were “[a]t the entrance of the vagina,” and that they “looked fresh” because “they bled . . . when [she] touched them” with a cotton swab. Merced testified that she had marked, on a diagram of the anatomy of the genital area of a female, the location on the victim’s labia majora where she had observed the two scrapes. Merced further testified that, if the genital area, as shown in the diagram, were the face of a clock, the scrapes would be located between 5:30 and 6 o’clock. Finally, Merced testified that, when she asked the victim during the August 4,1992 examination how she got the scrapes, the victim answered that the defendant had touched her “private part.”

Frederick B. Berrien, a physician who was qualified as an expert in the field of pediatrics, provided testimony in two areas of relevance to this case. First, Berrien provided expert testimony with regard to the physical structure of the female genital area, genital opening and vagina. To illustrate his testimony, Berrien used the diagram that Merced had used during her testimony. He drew a circle around the area on the diagram that he considered to be the genital area of a female and testified that the labia majora constituted the outermost border of that area. He testified that the labia majora are part of the female genital area and consist of folds of skin that “close over the opening to the vagina,” but that the labia majora are not part of the vagina itself. Berrien also testified that, although the labia majora are not part of the genital opening, the space between the labia was the beginning of the genital opening. Finally, Berrien testified that, in order to consummate vaginal intercourse, penetration had to be made through all of the labia structures.

Second, Berrien testified regarding the location of the scrapes on the victim that Merced had observed upon examination of the victim. He testified that the scrapes that Merced had noted were in the area of the victim’s “posterior fourchette,” which he defined as the “posterior position of . . . the labia majora.” He testified that, if one were to visualize the genital area as the face of a clock, the scrapes “were located at about 5:30” and that “injuries in that area are . . . typically involved with sexual abuse.” He further testified that, based on his review of the diagram on which Merced had pointed out the location of the two scrapes, the victim’s injuries appeared to be on the inside of the fold of the labium majora. He stated that the history given by the victim and the scrapes observed by Merced were consistent with a finger going through the victim’s genital opening.

Subsequent to Berrien’s testimony, the trial court permitted the state to amend its information. The first count of the original information alleged that the defendant had committed sexual assault in the first degree in violation of § 53a-70 (a) (2) by “penetrating] the vagina of a three . . . year old girl with his finger or fingers.” (Emphasis added.) The second count of the original information alleged that the defendant had committed risk of injury to a child in violation of § 53-21 by “vaginally penetrating [the victim] with his finger or fingers.” (Emphasis added.) The state amended the first count of the information to allege that the defendant had committed sexual assault in the first degree in violation of § 53a-70 (a) (2) by “penetrat[ing] the labia majora of the genitalia of a three . . . year old girl with his finger or fingers,” and the second count to allege that the defendant had committed risk of injury to a child in violation of § 53-21 by “penetrating] the labia majora of the genitalia of a three . . . year old child with his finger or fingers.” (Emphasis added.)

After a jury trial, the jury returned a verdict of guilty on both counts of the information. Subsequently, the trial court rendered judgment in accordance with the juiy’s verdict and imposed a total effective sentence of fifteen years imprisonment, execution suspended after four years, and five years probation. The defendant appealed from the judgment of the trial court to the Appellate Court, which affirmed the trial court’s judgment on both counts. See State v. Albert, supra, 50 Conn. App. 717. This certified appeal followed.

I

The defendant claims that the trial court improperly instructed the jury on the meaning of the term sexual intercourse, as defined in General Statutes (Rev. to 1991) § 53a-65 (2). The state claims that the trial court properly instructed the jury on the meaning of this term. As both parties recognize, in order to determine whether the trial court correctly instructed the jury, we first must interpret the statute defining the term sexual intercourse, namely, § 53a-65 (2). The defendant argues that a “touching” of the labia majora cannot support a finding that sexual intercourse occurred by way of digital penetration of the genital opening. Rather, the defendant argues that, under the facts of this case, in order to penetrate the genital opening, there must be evidence “that the defendant put his finger beyond the labia majora . . . .” Finally, the defendant argues that “there was no evidence presented that the defendant did anything other than touch the surface of [the victim’s] labia majora.”

The state argues that digital penetration of the labia majora constitutes penetration of the genital opening and, therefore, is sexual intercourse within the meaning of § 53a-65 (2). The state also argues that the evidence supported the conclusion that there was penetration of the victim’s labia majora, and refutes “any . . . claim [by the defendant] that the touching was a mere contact with the exterior surface of the labia.” We agree with the state.

“Statutory inteipretation is a matter of law over which this court’s review is plenary. ... 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 146 (1999). “[A]lthough we recognize the fundamental principle that [penal] statutes are to be construed strictly, it is equally fundamental that the rule of strict construction does not require an interpretation which frustrates an evident legislative intent.” (Internal quotation marks omitted.) State v. Ledbetter, 240 Conn. 317, 330, 692 A.2d 713 (1997).

We begin with the plain language of the statute. General Statutes (Rev. to 1991) § 53a-65 (2) provides in relevant part: “ ‘Sexual intercourse’means vaginal intercourse . . . between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse . . . and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital . . . opening of the victim’s body. . . .” (Emphasis added.) We consider the two italicized portions of the definition of sexual intercourse particularly relevant to this appeal.

First, we consider the statute’s provision that “[penetration, however slight, is sufficient to complete vaginal intercourse . . . .” General Statutes (Rev. to 1991) § 53a-65 (2). Although the plain language of the statute does not specify what must be penetrated, the legislature, in using the phrase “[p]enetration, however slight,” evinced an intent to incorporate, into our statutory law, the common-law least penetration doctrine. As the Appellate Court correctly noted: “We first encounter the notion that the least penetration is sufficient to complete the crime of rape in State v. Shields, 45 Conn. 256 (1877). [In that case] [t]he defendant requested that the trial court charge the jury that to constitute rape actual penetration of the body of the woman by the insertion into her of the private parts of the accused is absolutely necessary. Id., 259. After charging as requested, the court added, but the least penetration is sufficient .... Id. Our Supreme Court affirmed the charge as correct. Id., 263.” (Emphasis added; internal quotation marks omitted.) State v. Albert, supra, 50 Conn. App. 721.

The defendant argues that, in order to satisfy the element of penetration in §§ 53a-65 (2) and 53a-70 (a) (2), there must be evidence of penetration “through the labia structures, to the outer vagina,” or, at least, penetration “beyond the labia majora to at least the labia minora . . . ,” Neither Shields, its common-law progeny; see footnote 12 of this opinion; nor any case that the defendant has cited to in any jurisdiction, suggests that penetration “through the labia structures, to the outer vagina” or penetration “beyond the labia majora to at least the labia minora” is required to complete vaginal intercourse under the least penetration doctrine.

On the contrary, in State v. Shields, supra, 45 Conn. 256, we upheld a jury charge that referred to “penetration of the body”] (emphasis added; internal quotation marks omitted) id., 259; and stated that “the least penetration is sufficient [to commit rape].” (Internal quotation marks omitted.) Id. We conclude that the public policy underlying our holding in Shields, namely, that the least penetration of the body is sufficient to commit rape, was to protect victims from unwanted intrusions into the interior of their bodies. The legislature endorsed this public policy through its codification of the phrase “[p]enetration, however slight” in § 53a-65 (2). Therefore, because penetration of the labia majora constitutes penetration of the body, we agree with the Appellate Court that “[t]he ‘penetration, however slight’ language of the statute is a common-law carryover that was designed to eliminate precisely the kind of claim that is made here. The common-law construction of rape was designed to punish the fact, not the degree, of penetration.” State v. Albert, supra, 50 Conn. App. 724. We conclude that the phrase “[p]enetration, however slight”; General Statutes (Rev. to 1991) § 53a-65 (2); was intended to cover penetration of the labia majora.

We also note that other jurisdictions likewise have concluded, on the basis of the least penetration doctrine, that penetration of the labia majora is sufficient to establish the element of penetration. See, e.g., Craig v. State, 214 Md. 546, 547, 136 A.2d 243 (1957) (penetration of labia majora sufficient to prove rape); State v. Wisdom, 122 Or. 148, 161, 257 P. 826 (1927) (because any penetration of labia sufficient to prove rape, trial court need not charge jury that penetration must reach “into the labia of the female organ having mucous membrane”). See generally annot., 76 A.L.R.3d 163, 178-83 (1977) (reviewing numerous cases in which courts have held that penetration of labia is sufficient penetration to constitute rape).

The next sentence of General Statutes (Rev. to 1991) § 53a-65 (2), which provides in relevant part that “[p]enetration may be committed by an object manipulated by the actor into the genital . . . opening of the victim’s body”; (emphasis added); further strengthens our conclusion that penetration of the labia majora is sufficient to constitute sexual intercourse. We begin by noting that this sentence includes digital penetration as a species of penetration that constitutes vaginal intercourse under § 53a-65 (2). See, e.g., State v. Hermann, 38 Conn. App. 56, 60, 658 A.2d 148, cert. denied, 235 Conn. 903, 665 A.2d 904 (1995). Therefore, because “[p]enetration, however slight”; General Statutes (Rev. to 1991) § 53a-65 (2); is sufficient to constitute vaginal intercourse, the text of General Statutes (Rev. to 1991) § 53a-65 (2) providing that “[p]enetration may be committed by an object manipulated by the actor into the genital . . . opening of the victim’s body”; (emphasis added); means that digital penetration, however slight, of the genital opening, is sufficient to constitute vaginal intercourse.

We must then determine what the legislature intended by its use of the term “genital . . . opening.” General Statutes (Rev. to 1991) § 53a-65 (2). We begin by noting that, although the statute does not expressly define the term genital opening, our “construction must accord with common sense and commonly approved usage of the language.” (Internal quotation marks omitted.) State v. Jason B., 248 Conn. 543, 550, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406, 145 L. Ed. 2d 316 (1999). We also note that, when “a statute or regulation does not sufficiently define a term, it is appropriate to look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Payne, 240 Conn. 766, 771, 695 A.2d 525 (1997).

Under common usage of the language, the term genital opening means an opening associated with the genitals. The word “genitals” means “genitalia”; Webster’s Third New International Dictionary; which means “the organs of the reproductive system; esp[ecially]: the external genital organs.” (Emphasis altered.) Id. Similarly, Taber’s Cyclopedic Medical Dictionary defines genitals and genitalia as “[o]rgans of generation; reproductive organs,” and states that the female “external genitalia collectively are termed the vulva or pudendum and include the . . . labia majora” and that the internal genitalia are “the two ovaries, fallopian tubes, uterus, and vagina.” (Emphasis added.) Taber’s Cyclo-pedic Medical Dictionary (16th Ed. 1989). Thus, as the term “genitals” refers especially to the external genital organs, which include the labia majora, it would be unreasonable to conclude that when the legislature used the term genital opening, it meant to exclude the external genital organs and refer only to the internal genital organs such as the vagina.

“Opening” is defined in common usage as “something that is open . . . .” Webster’s Third New International Dictionary. “Open,” in turn, is defined as “spread out: unfolded: having the parts or surfaces laid back in an expanded position: not drawn together, folded, or contracted . . . .” (Emphasis added.) Id. We previously noted that the labia majora are defined as “the outer fatty folds bounding the vulva.” (Emphasis added.) Id.; see footnote 5 of this opinion.

From these definitions, it can be deduced that: (1) the term “genitals” commonly refers to the external reproductive organs, which include, on a female, the labia majora; (2) the term “opening” means something that is unfolded or spread out; and (3) the labia majora are folds. Thus, we conclude that the opening between the folds, i.e., labia majora, is the genital opening and that the labia majora form the boundaries of the genital opening. Moreover, because we have construed the term vaginal intercourse, as that term is used in § 53a-65 (2), to include digital penetration, however slight, of the genital opening; see text accompanying footnote 15 of this opinion; we conclude that digital penetration, however slight, of the labia majora is sufficient penetration to constitute vaginal intercourse under § 53a-65 (2).

The legislative history of § 53a-65 (2) provides further support for our conclusion. That history dates back to 1969, when “the legislature revised the penal code in accordance with recommendations by the commission to revise the criminal statutes (commission).” State v. Desimone, 241 Conn. 439, 456, 696 A.2d 1235 (1997). Public Acts 1969, No. 828, § 66 (P.A. 828), codified at General Statutes (Rev. to 1972) § 53a-65, statutorily defined, for the first time, the term sexual intercourse for purposes of our state’s sexual assault statutes. Public Act 828 provides in relevant part: “ ‘Sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight. . . .” In discussing House Bill 7182, the bill that eventually was enacted as P.A. 828, Senator John F. Pickett stated that the bill statutorily “defines with modem language crime ... so that, we no longer, as we at present must rely, simply on the common law, for definitions of our crimes.” 13 S. Proc., Pt. 7,1969 Sess., p. 3542. Thus, as we stated previously, because this court had held that the least penetration is sufficient to commit rape under the common law; see State v. Shields, supra, 45 Conn. 263; the legislature, in using the phrase “[p]enetration, however slight,” evinced an intent to codify the common-law least penetration doctrine.

In addition, in its commentary on § 53a-65, the commission stated: “These definitions are taken largely from the New York Revised Penal Law.” Commission to Revise the Criminal Statutes, Connecticut Penal Code Comments (1969) p. 25. Indeed, the relevant portion of the definition of sexual intercourse in P.A. 828 tracks the New York counterpart exactly. See N.Y. Penal Law § 130.00 (1) (McKinney 1967). The definition found in N.Y. Penal Law § 130.00 (1), in turn, originally derived from § 280 of the New York Penal Code of 1881. Therefore, because our statute was modeled after the New York statute, we find the interpretation of the phrase “penetration, however slight” by the New York Court of Appeals to be particularly persuasive in construing the equivalent language in § 53a-65. See State v. Havi-can, 213 Conn. 593, 601, 569 A.2d 1089 (1990) (recognizing that, because “ ‘[t]he drafters of the [Connecticut penal] code relied heavily upon . . . the penal code of New York,’ ” it is appropriate to look to New York statutory and case law for guidance in interpreting Connecticut Penal Code).

Our conclusion that the “common-law construction of rape was designed to punish the fact, not the degree, of penetration”; State v. Albert, supra, 50 Conn. App. 724; is supported by the construction of the phrase “penetration, however slight” in People v. Crowley, 102 N.Y. 234, 6 N.E. 384 (1886). In Crowley, the New York Court of Appeals concluded that the phrase “means nothing more than penetration of the private parts of the man into the person of the woman, and no discussion is necessary or proper as to how jar they entered.” (Emphasis added.) Id., 237.

Public Acts 1975, No. 75-619, § 1 (P.A. 75-619), amended General Statutes (Rev. to 1972) § 53a-65 by providing in relevant part: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. . . .” Thus, through P.A. 75-619, § 1, the legislature: (1) amended the definition of sexual intercourse to include anal intercourse, fellatio and cunnilingus, all of which previously had been statutorily defined as forms of “[d]eviate sexual intercourse”; General Statutes (Rev. to 1975) § 53a-65 (2); (2) maintained the codification of the common-law least penetration doctrine; and (3) provided that the element of penetration could be established by proving that a defendant manipulated an object into the victim’s genital opening.

The legislative history of Senate Bill 1519, the bill that eventually was enacted as P.A. 75-619, clearly indicates “that the purpose of changing the definition of sexual intercourse from ‘having its ordinary meaning’ was to include ‘anal intercourse, fellatio and cunnilingus,’ none of which had been encompassed under the expression ‘ordinary meaning’ of sexual intercourse. See 18 S. Proc., Pt. 7, 1975 Sess., pp. 3214-27.” State v. Sieving, 35 Conn. App. 173, 181-82, 644 A.2d 958, cert. denied, 231 Conn. 914, 648 A.2d 158 (1994). The term “vaginal” was inserted into the statute to distinguish what previously had been considered “ordinary” intercourse; see General Statutes (Rev. to 1975) § 53a-65 (1); from anal intercourse, fellatio and cunnilingus. As the defendant recognizes, the addition of the term “vaginal” to the definition of sexual intercourse in § 53a-65 did not change the meaning of that definition as it pertained to vaginal intercourse. Therefore, in adding the term “vaginal” to the definition of sexual intercourse, the legislature did not intend to create a requirement of penetration of the vagina in order for the defendant’s conduct to constitute sexual intercourse. This conclusion is bolstered by the fact that the legislature maintained the phrase “[pjenetration, however slight” in the amended definition of sexual intercourse, and, as we have concluded previously, slight penetration does not require vaginal penetration.

With regard to the second relevant sentence in § 53a-65 (2), which includes, inter alia, digital penetration of the genital opening within the definition of sexual intercourse, there is nothing in the legislative history to support the defendant’s argument that the legislature, in using the term genital opening, intended the statute to require that penetration occur “beyond the labia majora to at least the labia minora . . . .” Finally, we also note that our construction of §§ 53a-65 (2) and 53a-70 (a) (2), unlike that of the defendant, furthers one of the statute’s principal objectives, namely, “to protect children from being sexually violated.” (Internal quotation marks omitted.) State v. Hermann, supra, 38 Conn. App. 60.

Although we have rejected most of the defendant’s arguments in the preceding analysis, we wish to address briefly the defendant’s claim that a mere touching of the surface of the labia majora is not sufficient to constitute penetration under § § 53a-65 (2) and 53a-70 (a) (2). As we previously indicated, we disagree with the defendant’s suggestion that a defendant must put his finger or fingers “beyond the labia majora” for his conduct to fall within the definition of sexual intercourse in § 53a-65 (2). Even if we assume that the defendant’s interpretation of § 53a-65 (2) is correct, however, there was evidence presented in this case from which a reasonable jury could have concluded that the defendant put his finger beyond the victim’s labia majora. For example, the victim testified that the defendant touched “[ijnside” her crotch. In addition, Conter testified that the victim had indicated to him that the touching hurt her, Merced testified that the scrapes on the victim’s labia majora bled when she examined the victim two days after the incident and Berrien testified that the history the victim had given and the scrapes observed by Merced were consistent with a finger penetrating the victim’s genital opening. Therefore, we reject the defendant’s claim that “there was no evidence presented that the defendant did anything other than touch the surface of [the victim’s] labia majora.” On the contrary, a reasonable jury could have inferred, based on the foregoing evidence, that the defendant’s finger entered the victim with some force and passed beyond the actual location of the scrapes on the victim’s labia majora.

II

Having construed the applicable definition of sexual intercourse in § 53a-65 (2), we now review the defendant’s challenge to the following portion of the jury instructions. The trial court instructed the jury in relevant part: “Now, for purposes of this case, sexual intercourse means penetration into the genital opening .... The evidence presented by [Merced] and [Ber-rien] was that two scrapes were found on the labia majora of the victim’s genital opening. These scrapes and their locations are designated on [the diagram that Merced and Berrien used during their testimony], which you will have during your deliberations. You may consider the labia majora as an anatomical part of a woman’s genital opening. . . . Now, if you find beyond a reasonable doubt that the victim was under thirteen years of age and that the defendant digitally penetrated the victim’s genital opening, then you will find the defendant guilty.”

The defendant argues that the portion of the jury instruction stating that the labia majora are part of the genital opening and that the scrapes found on the victim’s labia majora constituted evidence of “penetration” was improper and harmful because it provided an incorrect definition of an essential element of the crime of first degree sexual assault. The defendant further claims that the Appellate Court improperly concluded that the jury instructions were correct because the instructions obliterate the distinction between sexual intercourse, which is defined in § 53a-65 (2), and sexual contact, which is defined in § 53a-65 (3). Whereas sexual intercourse is a necessary element of first degree sexual assault; see General Statutes (Rev. to 1991) § 53a-70; footnote 2 of this opinion; sexual contact is a necessary element of fourth degree sexual assault; see General Statutes § 53a-73a; and in some prosecutions for third degree sexual assault. See General Statutes § 53a-72a (1).

The state argues, to the contrary, that that portion of the trial court’s instructions with which the defendant takes issue was factually and legally correct and could not have misled the jury. The state also argues that the Appellate Court’s conclusion with respect to the propriety of that portion of the instructions does not eliminate the distinction between sexual intercourse and sexual contact. We agree with the state.

“Our analysis begins with a well established standard of review. When reviewing [a] challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. ... As long as [the instructions] axe correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995). [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled. . . . State v. Figueroa, 235 Conn. 145, 170-71, 665 A.2d 63 (1995). . . . State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999).

“In determining whether it was . ; . reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding [it] to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied ... is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result. . . . State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995) . . . .” (Citations omitted; internal quotation marks omitted.) State v. Griffin, 251 Conn. 671, 713-14, 741 A.2d 913 (1999).

We first consider the defendant’s argument that it was improper for the trial court to have instructed the jury that it “may consider the labia majora as an anatomical part of a woman’s genital opening.” The defendant argues that this instruction was improper because the labia majora are not part of the genital opening. We disagree.

We concluded in part I of this opinion that the opening between the labia majora is the genital opening, as that term is used in § 53a-65 (2), and that the labia majora form the boundaries of the genital opening. The boundaries of an opening commonly are thought of as part of the opening. For example, a doorjamb defines the boundaries of a door opening, and a jamb is “an upright piece or surface forming the side of an opening . . . .” Webster’s Third New International Dictionary. A side of an opening is, obviously, part of the opening. We also note that appellate courts in other jurisdictions commonly have referred to the labia as an opening that can be entered. See, e.g., Holmes v. United States, 171 F.2d 1022, 1023 (D.C. Cir. 1948) (“[t]he crime of rape is committed if [the male organ] enters only the labia of the female organ”); Short v. State, 564 N.E.2d 553, 559 (Ind. App. 1991) (any “entering of the . . . labia” is sufficient to complete sexual intercourse). Therefore, it was not improper for the trial court to have referred to the labia majora as part of the genital opening. Although it technically might have been more correct for the trial court to have stated that the space between the labia majora is the genital opening, rather than stating that the labia majora constitute part of the genital opening; see footnote 10 of this opinion; “the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement . . . .” (Internal quotation marks omitted.) State v. Griffin, supra, 251 Conn. 714. Thus, we conclude that it was not reasonably possible that the jury was misled by the trial court’s instructions that the labia majora are part of the genital opening.

We next consider the defendant’s argument that it was improper for the trial court to have instructed the jury that “[t]he evidence presented by [Merced] and [Berrien] was that two scrapes were found on the labia majora of the victim’s genital opening. . . . Now, if you find beyond a reasonable doubt that . . . the defendant digitally penetrated the victim’s genital opening, then you will find the defendant guilty.” The defendant argues that this part of the instruction was improper because: (1) the labia majora are not part of the genital opening; and (2) the jury may have understood the trial court’s instructions on the element of penetration to mean that it was to decide whether the defendant pierced the victim’s skin, rather than determining whether the defendant penetrated the victim by placing his finger in the victim’s genital opening.

The defendant’s first argument fails because we have concluded previously that it was not improper for the trial court to have instructed the jury that the labia majora are part of the genital opening. His second argument fails because it is obvious from the trial court’s instructions that the jury was instructed to consider whether the defendant had put his finger through the victim’s genital opening. See footnote 10 of this opinion. For example, the trial court instructed the jury: “Our law . . . provides that penetration may be committed digitally, that is, by the finger or fingers into the genital opening of the victim’s body.” In contrast, there is nothing in the trial court’s jury instructions that would have caused a reasonable juror to conclude that, in order to determine whether penetration occurred, he or she must determine whether the defendant had punctured the victim’s skin and tissue.

Finally, we consider the defendant’s argument that the jury instructions eliminate the distinction between sexual intercourse, as defined in § 53a-65 (2); see footnote 1 of this opinion; and sexual contact, as defined in § 53a-65 (3). See footnote 21 of this opinion. The defendant argues that, “[i]f the trial court’s instructions are deemed correct, there would never be a contact with the ‘genital area’ of a female that did not also constitute . . . penetration of the ‘genital opening.’ ” We disagree.

We begin by noting that sexual intercourse, as defined in § 53a-65 (2), requires penetration whereas sexual contact, as defined in § 53a-65 (3), requires mere contact. The trial court instructed the jury, “if you find beyond a reasonable doubt. . . that the defendant digitally penetrated the victim’s genital opening, then you will find the defendant guilty.” (Emphasis added.) Footnote 10 of this opinion. Thus, the trial court properly instructed the jury that it was to convict the defendant only if it found that the defendant had penetrated the victim’s genital opening. Notwithstanding the defendant’s claim that “there was no evidence presented that the defendant did anything other than touch the surface of [the victim’s] labia majora,” the jury based its verdict on a finding of penetration of the genital opening, not mere contact with the genital area. Compare General Statutes (Rev. to 1991) § 53a-65 (2) with General Statutes (Rev. to 1991) § 53a-65 (8). Accordingly, we conclude that the Appellate Court properly concluded that the trial court correctly had instructed the jury in this case.

The judgment of the Appellate Court is affirmed.

In this opinion the other justices concurred.

       General Statutes (Rev. to 1991) § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Penetration, however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body. Its meaning is limited to persons not married to each other.”

       General Statutes (Rev. to 1991) § 53a-70 provides in relevant part: “(a) A person is guilty of sexual assault in the first degree when such person ... (2) engages in sexual intercourse with a person under thirteen years of age.” (Emphasis added.)
      The term “sexual intercourse,” for purposes of § 53a-70 (a) (2), is defined by § 53a-65 (2). See footnote 1 of this opinion.

       General Statutes (Rev. to 1991) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       The defendant also claims that, if we were to order a new trial on the first degree sexual assault charge, we would also be required to order a now trial on the risk of injury charge. Because we affirm the defendant’s conviction of first degree sexual assault, we need not consider the second issue raised by Hie defendant. Accordingly, the defendant’s conviction of risk of injury to a child is not affected by 1he outcome of this appeal.

       Webster’s Third New International Dictionary defines labia majora as “the outer fatty folds bounding the vulva.”

       Berrien testified in relevant part:
      “[Martin Zeldis, Defense Counsel]: Would you call the labia majora part of 1he genital opening?
      “[Berrien]: The labia majora are part of the genitalia. The opening is between the two labia majora.
      “[Mr. Zeldis]: So the answer would be the labia majora is not part of the genital opening?
      “[Berrien]: The opening is a space and the labia axe structures.
      “[Mr. Zeldis]: So it’s not part of an opening. Is that fair to say?
      “[Berrien]: It’s not part of the opening.”

       Berrien testified in relevant part:
      “[Anne Mahoney, Assistant State’s Attorney]: Is the space between the labia the beginning of the genital opening?
      “[Berrien]: Yes, it is.”

       Berrien testified in relevant part:
      “The Court: Just to the extent that it’s helpful to the court, Dr. Berrien, there aren’t too many sign posts around. You’re aware that there are statutes. Sexual intercourse is defined as vaginal intercourse. To consummate vaginal intercourse, does penetration have to be made through the genital opening?
      “[Berrien]: Yes.
      “The Court: And to consummate vaginal intercourse or to effectuate vaginal intercourse, does penetration have to be made through all of these labia structures?
      “[Berrien]: Yes.”

       We granted the defendant’s petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly conclude that the trial court correctly instructed the jury regarding the meaning of ‘sexual intercourse’ under the facts of this case?” State v. Albert, 247 Conn. 954, 723 A.2d 810 (1999).

       The lull text of the portion of the jury instruction that the defendant claims was improper provided: “Now, for purposes of this case, sexual intercourse means penetration into the genital opening and its meaning is limited to persons not married to each other. Our law further provides that penetration, however slight, is sufficient to complete sexual intercourse and does not require the emission of semen. Our law further provides that penetration may be committed digitally, that is, by the finger or fingers into the genital opening of the victim’s body.
      “Now, it was undisputed in the evidence presented that the victim in our case was three years old at the time of the alleged assault at Globe Hollow [Pond], Now clearly, in our state, a three year old cannot marry and you may correctly assume that no marriage existed between the alleged victim and the defendant. It was further undisputed that no digital penetration of the victim’s vagina occurred. The evidence presented by [Merced] and [Berrien] was that two scrapes were found on the labia majora of the victim’s genital opening. These scrapes and their locations are designated on [the diagram that Merced and Berrien used during their testimony], which you will have during your deliberations. You may consider the labia majora as an anatomical part of a woman’s genital opening.
      “Now, sexual assault in the first degree is a crime not requiring a specific intent. However, if you should conclude that there was a penetration and that the penetration of [the victim’s] genital opening was accidental, inadvertent or by mistake, then you cannot return a verdict of guilty. To return a verdict of guilty, you must be satisfied that the elements comprising this crime have been proved beyond a reasonable doubt.
      “Now, if you find beyond a reasonable doubt that the victim was under thirteen years of age and that the defendant digitally penetrated the victim’s genital opening, then you will find the defendant guilty.”
      The defendant excepted to this jury instruction at trial by stating: “The first exception that I have to [the] court’s charge is what we have discussed before. To the extent that the court’s instructions indicate that penetration of the labia majora is sufficient to accomplish the crime of sexual assault in the first degree, we take exception to the court’s instruction.”

       Therefore, we agree with the dissenting opinion in State v. Albert, supra, 50 Conn. App. 715, to the extent that it acknowledges that “[t]he resolution of the defendant’s claim requires [the court] to determine what must be penetrated.” (Emphasis in original.) Id., 736 (Hmnessy, J., dissenting). As we discuss later in the text of this opinion, however, we disagree with that dissent to the extent that it suggests that reference to the least penetration doctrine in this case “does not advance the discussion”; id. (Hmnessy, J., dissenting); and to the extent that it concludes that “penetration of the vagina, however slight, is required to commit vaginal intercourse. ” (Emphasis added.) Id. (Hmnessy, J., dissenting).

       The least penetration doctrine has been part of our law prohibiting sexual assault since our decision in Shields. See, e.g., State v. Dubina, 164 Conn. 95, 97, 318 A.2d 95 (1972); State v. Hickey, 23 Conn. App. 712, 714, 584 A.2d 473, cert. denied, 217 Conn. 809, 585 A.2d 1233, cert. denied, 501 U.S. 1252, 111 S. Ct. 2894, 115 L. Ed. 2d 1058 (1991).

       It is not entirely clear how much penetration the defendant argues is necessary to complete the element of penetration under §§ 53a-65 (2) and 53a-70 (a) (2). In his brief, the defendant argued that there must be mere panel ration “beyond tire labia majora,” whereas he argued at oral argument that penetration must occur all the way “through the labia structures, to the outer vagina.”

       Likewise, the dissenting opinion in State v. Albert, supra, 50 Conn. App. 715, does not cite any case that supports the proposition that penetration of the vagina is necessary to constitute penetration under the least penetration doctrine. See generally id., 736 (Hennessy, J., dissenting).

       We conclude in the text of this opinion that the phrase, “[p]enetration, however slight, is sufficient to complete vaginal intercourse”; General Statutes (Rev. to 1991) § 53a-65 (2); includes penetration of the labia majora within the definition of vaginal intercourse. In so concluding, we avoid the bizarre result that would occur were we to treat digital penetration differently than all other forms of penetration by necessitating mere penetration of the genital opening in cases involving digital penetration, but requiring slight penetration of the vagina in cases involving all other forms of penetration. “We decline to interpret the statute so as to lead to this bizarre and unintended result.” State v. Parra, 251 Conn. 617, 631-32, 741 A.2d 902 (1999). In contrast, as the Appellate Court noted in this case, the interpretation offered above harmonizes the doctrine of least penetration with the statute’s prohibition against the manipulation of an object into a victim’s genital opening. See State v. Albert, supra, 50 Conn. App. 724. “[I]n ascertaining [legislative] intent, we deem the legislature to have intended to harmonize its enactment with existing common law and statutory requirements . . . .” (Internal quotation marks omitted.) Stern v. Allied Van Lines, Inc., 246 Conn. 170, 179, 717 A.2d 195 (1998).

       Although there is evidence in the record to suggest that the trial court may have considered the phrase “genital or anal opening”-, (emphasis added) General Statutes (Rev. to 1991) § 53a-65 (2); to mean genital area and anal opening when it allowed the state to amend its information during the trial, the trial court’s decision to allow the state to amend the information was proper in light of our conclusion that penetration of the labia majora is sufficient to constitute sexual intercourse, as that term is defined in § 53a-65 (2). Furthermore, the trial court correctly instructed the jury that digital penetration could be accomplished by penetration of the genital opening. See part II and footnote 10 of this opinion. The court never instructed the jury that penetration of the genital area would be sufficient to complete the element of penetration required for prosecution under § 53a-70 (a) (2).

       We also note that the medical definition of labia majora provides further support for our conclusion. Stedman’s Medical Dictionary defines labia as the “plural of labium” and defines labium “majus” or majora as “one of two rounded folds of integument forming the lateral boundaries of the pudendal cleft.” Stedman’s Medical Dictionary (26th Ed. 1995). “Pudendal” means “[Relating to the external genitals"-, (emphasis added) id.; and “pudendal cleft” is defined as “the cleft between the labia majora.” Id. Cleft is defined as a “fissure.” Id. Thus, it is clear that the labia majora form the boundaries of a fissure, or opening, associated with the female genitals.
      In addition, the expert testimony given by Berrien supports this interpretation. Berrien was asked: “Is the space between the labia the beginning of the genital opening?” He responded: “Yes, it is.” Footnote 7 of this opinion. Although Berrien testified that the labia majora are “not part of the [genital] opening”; footnote 6 of this opinion; it appears from his testimony that he simply meant that the labia majora formed the boundaries of the genital opening and the space between the labia is the genital opening. See footnotes 6 and 7 of this opinion. In addition, although Berrien answered yes to the court’s question whether “penetration ha[s] to be made through all of these labia structures [to effectuate vaginal intercourse]”; footnote 8 of this opinion; it is unclear from the transcript whether, by reference to “all of these labia structures,” Berrien understood the court to be asking about both the labia majora and the labia minora, or simply both of the labium majora.

       Our conclusion that penetration of the labia majora is sufficient penetration to constitute sexual intercourse is bolstered by the fact that the legislature, in defining the term sexual intercourse, as that term applies to digital penetration, did not use the phrase “penetration to the outer vagina,” which the defendant argues is necessary to constitute sexual intercourse. Rather, the legislature utilized amore inclusive phrase, specifying that mere “[p]enetration . . . [of] the genital . . . opening”-, (emphasis added) General Statutes (Rev. to 1991) § 53a-65 (2); is sufficient to constitute sexual intercourse.

       This definition of sexual intercourse is identical to the definition of sexual intercourse applicable in this case. See General Statutes (Rev. to 1991) § 53a-65 (2); footnote 1 of this opinion.

       General Statutes (Rev. to 1975) § 53a-65 (2) provides in relevant part: “ ‘Deviate sexual intercourse’ means . . . sexual contact between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva . . . .”

       General Statutes § 53a-65 (3) provides: “ ‘Sexual contact’ means any contact with the intimate parts oí a person not married to the actor for the purpose of sexual gratification of the actor or for the puipose of degrading or humiliating such person or any contact of the intimate parts of the actor with a person not married to the actor for the purpose of sexual gratification of the actor or for the purpose of degrading or humiliating such person.”
      The term “intimate parts” is defined in General Statutes § 53a-65 (8) as “the genital area, groin, anus, inner thighs, buttocks or breasts.”

       We also note that medical experts refer to the labia as an opening that can be penetrated. See, e.g., J. Hitt, “The Second Sexual Revolution,” N.Y. Times, February 20, 2000, § 6 (Magazine), p. 36 (quoting Irwin Goldstein, urologist, as stating that “[t]he man needs a sufficient axial rigidity so his penis can penetrate through labia" [emphasis added; internal quotation marks omitted]).

       See footnote 21 of this opinion for the relevant text of General Statutes § 53a-65 (8).

       We note that we rejected this characterization of the evidence in part I of this opinion.


source: Caselaw Access Project

author: BERDON, J.,

license: Public Domain

text:
    STATE OF CONNECTICUT v. PAUL COPP
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 695 (AC 17373), is denied.

BERDON, J.,

dissenting. I would grant certification to appeal on the following issue: Whether the Appellate Court was correct in refusing to review the defendant’s claim that there was a violation of the right to self-representation, a denial of due process, or an abuse of discretion when the trial court denied the pro se defendant, Paul Copp, a ten minute recess to reflect on what the state had said in its closing argument before he was required to give his closing argument?

Although the defendant did not argue before the trial court that by failing to allow him the ten minutes, the court deprived him of his rights to self-representation and due process, he specifically made the request to the trial court. Indeed, the Appellate Court itself conceded that “[b]efore the state gave its closing argument, the defendant requested a ten minute continuance to ‘gather [his] thoughts’ after the state’s argument and before his closing.” (Emphasis added.) State v. Copp, 54 Conn. App. 695, 704, 736 A.2d 941 (1999). It is incredible that the Appellate Court did not at least determine whether it was an abuse of discretion to deny the ten minute recess when that court conceded that the record indicated such a request was made.

The right to closing argument is fundamental and guaranteed by the state constitution. Conn. Const., art. I, § 8 (“[i]n all criminal prosecutions, the accused shall have a right to be heard by himself and by counsel”). As early as 1880, this court recognized: This “right so guaranteed is of inestimable value, not alone to the accused, to prevent any perversion of law or fact affecting his life, liberty or property, but to the court and the cause of incorruptible justice as well. We would not therefore abridge by one jot or tittle so precious a privilege.” State v. Hoyt, 47 Conn. 518, 535 (1880); see State v. Plaskonka, 22 Conn. App. 207, 210-11, 577 A.2d 729, cert. denied, 216 Conn. 812, 580 A.2d 65 (1990). “It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.” Herring v. New York, 422 U.S. 853, 862, 95 S. Ct. 2550, 45 L. Ed. 2d 593 (1975).

Even the most experienced trial attorney, let alone a pro se litigant, needs a few minutes to gather her thoughts. It is within the discretion of the trial judge whether to grant such time for reflection. The abuse of that discretion must be determined within the context of each case. This case was no small claims court matter. The defendant was convicted of assault in the second degree with a motor vehicle in violation of General Statutes § 53a-60d and operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a, for which he received an effective sentence of five years.

In view of the importance of final argument and its constitutional underpinnings, I would grant certification to appeal the issue of whether the denial of the defendant’s request for a ten minute recess to gather his thoughts before responding to the state’s argument was an abuse of discretion and violated the defendant’s constitutional rights.

Neal Cone, assistant public defender, in support of the petition.

John A. East III, in opposition.

Decided December 7, 1999

Accordingly, I dissent.


text:
    STATE OF CONNECTICUT v. CHRISTOPHER DUMAS

      Francis T. Mandanici, assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., senior assistant state’s attorney, in opposition.
    Decided December 7, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 780 (AC 17703), is denied.

BERDON, J.,

dissenting. I would grant the defendant’s petition for certification to appeal.


text:
    STATE OF CONNECTICUT v. HECTOR REVELO
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 217 (AC 17757), is granted, limited to the following issue:

“Did the Appellate Court properly conclude that it lacked subject matter jurisdiction over the defendant’s claim of judicial vindictiveness subsequent to his plea of nolo contendere, and, if not, were the defendant’s due process rights violated when the trial court sentenced him to a greater period of incarceration after the denial of his suppression motion than it would have if he had waived his right to a determination of his suppression claim and entered his nolo plea prior to a determination of that claim?”

The Supreme Court docket number is SC 16226.

Alix C. Walmsley, assistant public defender, in support of the petition.

LeonF. Dalbec, Jr., assistant state’s attorney, in opposition.

Decided December 7, 1999


text:
    JOSE QUINTANA v. COMMISSIONER OF CORRECTION

      Norman A. Pattis, in support of the petition.

      Harry Weller, senior assistant state’s attorney, in opposition.
    Decided December 7, 1999
   The petitioner Jose Quintana’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 426 (AC 18421), is denied.

KATZ, J., did not participate in the consideration or decision of this petition.


text:
    JOSEPH MARSHALL v. UNITED TECHNOLOGIES CORPORATION/PRATT AND WHITNEY AIRCRAFT DIVISION ET AL.
   The plaintiffs petition for certification for appeal from the Appellate Court, 55 Conn. App. 902 (AC 18811), is denied.

BERDON, J.,

dissenting. I would grant the plaintiffs petition for certification to appeal.

Brian W. Prucker, in support of the petition.

Kristen L. Frazier, in opposition.

Decided December 7, 1999


text:
    STATE OF CONNECTICUT v. GARY POTTS
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 469 (AC 18964), is denied.

BERDON, J.,

dissenting. I would grant certification to appeal on the following two issues: 1. Whether the constitutional (federal and state) rights of the defendant, Gary Potts, were violated when the jury was instructed on the affirmative defense of extreme emotional disturbance that it must assess the “reasonableness” of his action “from the viewpoint of a reasonable man, placed in the defendant’s situation, under the circumstances as the defendant believed them to be?” See State v. Raguseo, 225 Conn. 114, 140, 622 A.2d 519 (1993) (Berdon, J., dissenting) (“trial court’s injection of the term ‘reasonable’ into the language of the extreme emotional disturbance defense created an overly objective test that prevented the jury from considering the defendant’s mental abnormalities”).

2. WTiether the instruction that the state’s burden of proof beyond a reasonable doubt is a “rule of law made to protect society and persons whose guilt has not been established beyond a reasonable doubt, [and] not to protect those whose guilt has been so established,” impermissibly diluted the presumption of innocence and the reasonable doubt standard? See State v. Watson, 251 Conn. 220, 239, 740 A.2d 832 (1999) (Berdon, J., dissenting) (defendant’s “due process rights were violated when the trial court instructed the jury that the reasonable doubt standard and the presumption of innocence are ‘designed to protect the innocent and not the guilty’ ”).

Elizabeth M. Inkster, assistant public defender, in support of the petition.

Bruce R. Lockwood, deputy assistant state’s attorney, in opposition.

Decided December 7, 1999

Accordingly, I dissent.

NORCOTT, J., did not participate in the consideration or decision of this petition.


text:
    BEN F. GYADU v. CHAIRMAN, WORKERS’ COMPENSATION COMMISSION

      Ben F. Gyadu, pro se, in support of the petition.

      Donna J. Hixon-Smith, assistant attorney general, in opposition.
    Decided December 7, 1999
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 19397) is denied.

MCDONALD, C. J., and SULLIVAN, J., did not participate in the consideration or decision of this petition.


author: BERDON and NORCOTT, Js.,

text:
    ROBERT E. DIETTER v. CATHERINE DIETTER
   The defendant’s petition for certification for appeal from the Appellate Court, 54 Conn. App. 481 (AC 15995), is denied.

BERDON and NORCOTT, Js.,

dissenting. We would grant the defendant’s petition for certification to appeal.

Susan L. Jacobs and Mark R. Soboslai, in support of the petition.

Jeffrey R. Babbin and John W. Barnett, in opposition.

Decided December 13, 1999

SULLIVAN, J., did not participate in the consideration or decision of this petition.


text:
    IN RE JAMES L.
   The respondent parents petition for certification for appeal from the Appellate Court, 55 Conn. App. 336 (AC 17869/18155), is denied.

BERDON, J.,

dissenting. I would grant certification to appeal on the following issues: Whether the trial court in considering the termination of the parental rights of the natural father and mother impermissibly considered the termination of prior pregnancies by abortion implicating the mother’s right under Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). See Doe v. Maher, 40 Conn. Sup. 394, 515 A.2d 134 (1986). The Appellate Court refused to review this issue because “[n]owhere in the transcript of any proceeding or in any pleading [did it] find any indication, even remotely,” that the issue was raised. In re James L., 55 Conn. App. 336, 349, 738 A.2d 749 (1999). That is absolutely correct. The simple reason is that it was raised by the trial court in its final memorandum of decision.

I would also grant certification on whether we should abandon the “waiver rule.” See id., 340; see also Dindo v. Grand Union Co., 331 F.2d 138, 141 (2d Cir. 1968); State v. Rutan, 194 Conn. 438, 440, 479 A.2d 1209 (1984).

Accordingly, I dissent.

Debra Cohen and Jennifer E. Davis, in support of the petition.

Susan T. Pearlman, assistant attorney general and Eugene P. Falco, in opposition.

Decided December 13, 1999

SULLIVAN, J., did not participate in the consideration or decision of this petition.


author: MCDONALD, C. J., and BERDON, J.,

text:
    STATE OF CONNECTICUT v. FRANK BELL

      Richard E. Condon, Jr., special deputy assistant public defender, in support of the petition.

      Margaret Gaffney Radionovas, assistant state’s attorney, in opposition.
    Decided December 13, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 475 (AC 17999), is denied.

MCDONALD, C. J., and BERDON, J.,

dissenting. We would grant the defendant’s petition for certification to appeal.

SULLIVAN, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. ROBERT WHITE
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 412 (AC 18015), is denied.

SULLIVAN, J., did not participate in the consideration or decision of this petition.

Cameron R. Dorman, special public defender, in support of the petition.

Christopher T. Godialis, assistant state’s attorney, in opposition.

Decided December 13, 1999


text:
    CARL J. LIANO v. CITY OF BRIDGEPORT

      Carl J. Liano, pro se, in support of the petition.

      Jason M. Dodge, in opposition.
    Decided December 13, 1999
   The plaintiffs petition for certification for appeal from the Appellate Court, 55 Conn. App. 75 (AC 18550), is denied.


text:
    JEFFREY J. DONTIGNEY v. COMMISSIONER OF CORRECTION

      Jeffrey J. Dontigney, pro se, in support of the petition.
    Decided December 13, 1999
   The plaintiffs petition for certification for appeal from the Appellate Court, 55 Conn. App. 901 (AC 19175), is denied.


text:
    PHILIP S. CARDANY v. STATE OF CONNECTICUT
   The plaintiffs petition for certification for appeal from the Appellate Court (AC 19499) is denied.

Frank P. Cannatelli, in support of the petition.

Decided December 13, 1999


text:
    STATE OF CONNECTICUT v. ROBERT BRETON
    (SC 15876)
   The defendant’s motion for review of the trial court’s denial of his motion for articulation is granted. The relief requested is denied.

BERDON, J.,

dissenting. When the state decides to kill a human being, that person should at least be entitled to know the factual basis underlying that decision. Putting aside the concerns for the condemned person, this court is required to have that factual basis in order for a meaningful appellate review of the sentence of death. See Woodson v. North Carolina, 428 U.S. 280, 303, 96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976). The majority’s decision today not to order an articulation of the factual predicate underlying the three judge panel’s finding of an aggravant and no mitigant, just adds to the arbitrariness of the imposition of the death penalty; see State v. Cobb, 251 Conn. 285, 524-30, 743 A.2d 1 (1999) (Berdon, J., dissenting); and ignores the mandate of the legislature. See General Statutes (Rev. to 1987) § 53a-46a.

In rendering the special verdict, the three judge panel stated: “With respect to the alleged aggravating factor, the court finds [that] the state has proven beyond a reasonable doubt that the defendant committed both murders in an especially cruel manner as per [General Statutes (Rev. to 1987)] § 53a-46a (h) (4) . . . .” Following the lead of Florida, this court (over the dissent of Justice Robert D. Glass) had taken it upon itself to define the aggravant of “especially cruel” to mean “the intentional infliction of extreme pain or torture above and beyond that necessarily accompanying the underlying killing.” State v. Breton, 212 Conn. 258, 270, 562 A.2d 1060 (1989). The panel in this case made no factual findings to support its conclusion that the murders were “especially cruel,” notwithstanding the defendant’s timely motion for articulation.

Likewise, the panel, with respect to its finding that the defendant failed to prove by a fair preponderance of the evidence a mitigating factor, merely stated: “Regarding mitigation, first, the statutory mitigating factors alleged, the court finds that the defendant has failed to prove either of the alleged statutory mitigating factors by a fair preponderance of the evidence.” The panel never explained the reason for not finding that the defendant had failed to prove that “his mental capacity was significantly impaired.” General Statutes (Rev. to 1987) § 53a-46a (g) (2). This is so, even though there was an abundance of testimony from two psychiatric experts, Walter Borden and Anne Phillips, that the defendant was severely mentally ill and suffered from mixed personality disorder, severe, with borderline, depressive, paranoid and schizoid features.

Mark Rademacher, assistant public defender, in support of the motion.

Harry WeUer, senior assistant state’s attorney, in opposition.

December 13, 1999

This court’s decision on this motion does not surprise me in view of the advocacy of the majority with respect to the death penalty passing constitutional muster. Common decency requires that those who have sentenced a human being to this ultimate penalty at least be required to articulate the factual basis of their findings.

Accordingly, I dissent.

       Pursuant to General Statutes (Rev. to 1987) § 53a-46a (e), the sentencer in a capital penalty hearing “shall return a special verdict setting forth its findings as to the existence of any aggravating or mitigating factor.” Additionally, Practice Book § 64-1 (a) mandates that “[t]he court shall state its decision either orally or in writing ... (2) in ruling on aggravating and mitigating factors in capital penalty hearings conducted to the court .... The court’s decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. . . .”
      While we discuss the statute as it existed at the time of the commission of the crime in this case, we note that the current revision of the statute still requires the sentencer to “[set] forth its findings” with regard to aggravants and mitigants. See General Statutes § 53a-46a (e).

       “[BJecause the phrase ‘especially cruel’ is constitutionally inadequate; Maynard v. Cartwright, [486 U.S. 356, 108 S. Ct. 1853, 100 L. Ed. 2d 372 (1988)]; I would find no error in the trial court’s decision dismissing the capital felony prosecution.” State v. Breton, 212 Conn. 258, 281, 562 A.2d 1060 (1989) (Glass, J., dissenting).

       The panel found: “With respect to the nonstatutory mitigating factors the court finds proven by a fair preponderance of the evidence the following: number one, that the defendant was neglected, abandoned and the product of an abusive family unit during his childhood; number two, that the defendant has been a model prisoner at all times since his incarceration for the murders; number three, that he dropped out of school at age sixteen; and number four, that he was a good employee and a productive worker. The court further finds, however, that none of these factors either alone or in combination constitutes a mitigating factor considering all the facts and circumstances of this case. And that concludes the special verdict.” State v. Breton, Superior Court, judicial district of Waterbuiy, Docket No. CR4147941 (April 23, 1997).


author: BERDON, J., PER CURIAM. MCDONALD, C. J.

text:
    SEAN DOYLE v. METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY
    (SC 15939)
    November 3, 1999
   Pursuant to Practice Book § 70-7 (b) the court has determined, sua sponte, that this case will be considered en banc.

MCDONALD, C. J., dissents from the order to consider the case en banc.

BERDON, J.,

dissenting. The majority has ordered this one issue case to be considered en banc by a seven justice court approximately sixteen months after the record and all the briefs were filed and eleven months after oral argument. I object and dissent to the majority’s sua sponte order that the case be considered en banc, that is, by a seven justice panel.

I normally would not write an opinion on this objection to the en banc order, but I do so in this case for three reasons. First, although it is debatable, it would appear that, before a case has been decided by this court, the chief justice has the sole authority to order that it be heard en banc. General Statutes § 51-207; but see Practice Book § 70-7. Nevertheless, I write to point this out publicly in order for the legislature to be fully aware of the issue. The legislature may wish to clarify who has the authority. It is an issue that is important not only to the parties but also to the chief justice who ultimately is responsible for the assignment of the associate justices to participate on panels.

Second, I reach the mandatory retirement age of threescore plus ten on December 24,1999; Conn. Const., art. V, § 6; at which time I must step down from this court. It is the view of a majority of my colleagues that I can vote only on a case that is not only argued, but also publicly released prior to my seventieth birthday. Although General Statutes § 51-183g permits a judge of the Superior Court to “settle and dispose of all matters relating to ... unfinished matters pertaining to causes theretofore tried by him, as if he were still [a] judge,” there does not appear to be any analogous statutory authority to permit a Supreme Court justice to finish such business.

The legislature may wish to amend § 51-183g to include justices of the Supreme Court. The legislature should consider whether logic dictates that Supreme Court justices should be able to complete cases that they began prior to their seventieth birthday, unfettered by the logistical pressures of publishing the majority, concurrences and dissents of all justices who sat on those cases prior to that date.

Third, in the course of the conference proceedings on this case, the majority of the justices adopted an unwritten policy that should be made public and called to the attention of the legislature. They have decided that on all matters that come before the conference of the justices pertaining to general policy, all the associate justices and senior justices will each have a right to vote. The effect of this is to dilute the vote of an associate justice. For example, as a result of this policy, the voting power of an associate justice of the Supreme Court on such a decision is reduced to one out of nine instead of one out of seven because there are now two senior justices who vote. It is conceivable that the voting power of an associate justice could be reduced by 50 percent if there were, at any given time, seven senior justices. This obviously was not the intent of the legislature when it authorized a justice to elect to take senior status. In my view, senior justices should be limited to sitting as a justice on a case when there is a disqualification and there are not sufficient justices available to make up a full court. See General Statutes § 51-207 (a).

Accordingly, I dissent.

Supplementary Opinions

McDonald, C. J., and Borden, Norcott, Katz, Palmer and Peters, Js.

Officially released March 6, 2000

PER CURIAM.

It is extraordinary for there to be published an opinion dissenting from a sua sponte order of this court to consider a case en banc. See Doyle v. Metropolitan Property & Casualty Ins. Co., 252 Conn. 912, 746 A.2d 1257 (1999) (Berdon, J., dissenting from sua sponte order to consider case en banc). It is even more extraordinary for this response to that dissenting opinion to be published several weeks after the publication of that dissent. With extreme reluctance, we do so now, however, because the dissent was published without adequate time for this court to respond to it at the time of publication. We also do so because the dissent inaccurately calls into question certain actions of this court, and because, to the extent that internal matters regarding this court’s proceedings now have been made public, the public record regarding those proceedings should be accurate.

The dissent makes three points. We respond to each in turn. The dissent’s first point is that, “although it is debatable, it would appear that, before a case has been decided by this court, the chief justice has the sole authority to order that it be heard en banc. General Statutes § 51-207; but see Practice Book [1999 Rev.] § 70-7.” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 913.

The dissent then invites the legislature “to clarify who has the authority.” Id., 914. We take no position on whether the legislature should accept this invitation. Our sole purpose is to explain why, in our view, both the statute and the rule of appellate procedure have appropriate roles to play in the en banc decision-making process.

As the dissent points out, the statute provides that a full court consists of five justices “or, upon order of the Chief Justice, six associate judges or the Chief Justice and five or six associate judges.” General Statutes § 51-207 (a). The rule of appellate procedure provides, however, that “[b]efore a case is assigned for oral argument, the chief justice . . . may order . . . that a case be heard en banc.” Practice Book (1999 Rev.) § 70-7 (a). “After argument but before decision”; Practice Book (1999 Rev.) § 70-7 (b); and “[a]fter decision”; Practice Book (1999 Rev.) § 70-7 (c); however, the en banc decision is made by “the entire court . . . .” This rule, adopted by the judges both of this court and the Appellate Court, has been in effect in one form or another since 1991. It also reflects the practice of this court prior to that date; see, e.g., State v. Mooney, 218 Conn. 85, 85 n.1, 588 A.2d 145 (1991); and heretofore has never been questioned.

The rule is based on this court’s statutory authority to “institute rules of practice and procedure as to matters before it”; General Statutes § 51-199 (a); and on this court’s inherent authority to make rules governing its proceedings. The rule accomplishes a reasonable accommodation between the statutory and general administrative powers of the chief justice, on the one hand, and the court’s statutory and inherent procedural authority, on the other hand. The chief justice’s administrative authority to assign a case for en banc consideration operates fully prior to oral argument, when he or she is most familiar with the docket of cases to be heard by the court. The court’s statutory and inherent procedural authority operates after a case has been heard or decided, when the reasons perceived by all of the members of the court regarding the en banc decision ought to be fully taken into account.

The dissent’s second point is that “[i]t is the view of a majority of [his] colleagues that” a justice who has reached the constitutionally mandated retirement age of seventy may not participate in a case that is not “publicly released prior to [his] seventieth birthday.” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 914. The notion that one who, by virtue of the constitution is no longer a member of this court, may not participate in its decisions, is not, however, simply the view of a majority of this court as currently constituted. It has been the uniformly held and followed view of this court long before the dissenting justice or any current member of this court was appointed to it, and that view has never been questioned before.

This court’s records demonstrate that, consistent with the provision that, “[u]nless the court otherwise directs, its judgments . . . shall be deemed to have been rendered” on the date of publication in the Connecticut Law Journal; Practice Book § 71-1; this court’s decisions, in cases on which justices reaching the age of seventy have sat, uniformly have been published before the particular justice’s seventieth birthday. In order to accomplish that result, the uniform practice has been not to assign justices approaching that age to cases argued less than three or four months before the justice’s approaching seventieth birthday, and for the other members of the court to strive to issue the decision before that date.

This practice is not, as the dissent suggests, merely based on “logistical pressures . . . .” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 915. It is based, instead, on article fifth, § 6, of the constitution of Connecticut, as amended by article eight, § 2, of the amendments, which provides in pertinent part: “No judge shall be eligible to hold his office after he shall arrive at the age of seventy years . . . .” Thus, this practice has long been in effect to avoid any possible constitutional question about the legitimacy of the judgments of this court.

The dissent also invites the legislature to amend General Statutes § 51-183g “to include justices of the Supreme Court.” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 914. Section 51-183g permits a Superior Court judge who has ceased to hold his office to “dispose of . . . any . . . unfinished matters pertaining to causes theretofore tried by him, as if he were still such judge.” Furthermore, that statute has been held to be constitutional. See Todd v. Bradley, 97 Conn. 563, 570, 117 A. 808 (1922); Johnson v. Higgins, 53 Conn. 236, 237-38, 1 A. 616 (1885). We express no view regarding whether the reasoning of those two cases would also render a similar statute applying to justices of this court constitutional. We note, however, that the principle of necessity that undergirds that statute has much less force when applied to this court.

As a matter of policy, we also note that, because of the uniform practice of this court, the question has not arisen whether a justice who has reached his seventieth birthday should be able nonetheless to participate in the court’s decisions, and that, until the publication of the dissent in this case, no justice has felt at all hampered by that constitutional limit. Thus, it is not a problem that needs fixing. Furthermore, in recent years there have been several instances in which, because of various legitimate factors, decisions of this court have not been rendered until many months after their oral argument, sometimes not until the following court year. If such a statute were enacted, it conceivably could lead to the unseemly instance of a retired justice deciding a case long after he or she has ceased to be a member of this court.

The dissent’s third point is that, “in the course of the conference proceedings on this case, the majority of the justices adopted an unwritten policy that ... on all matters that come before the conference of the justices pertaining to general policy, all the associate justices and senior justices will each have a right to vote. The effect of this is to dilute the vote of an associate justice. . . . This obviously was not the intent of the legislature when it authorized a justice to elect to take senior status. In [the dissent’s] view, senior justices should be limited to sitting as a justice on a case when there is a disqualification and there are not sufficient justices available to make up a full court. See General Statutes § 51-207 (a).” (Emphasis added.) Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 915. Thus, the dissent’s interpretation of General Statutes § 51-198 would mean that a senior justice could not sit on a case unless one of the justices engaged in full-time active service were disqualified, and could not participate and vote on general policy and administrative matters at all.

The dissent’s assertion regarding the origin of this policy is inaccurate, and the dissent’s legal analysis of it is incomplete. The assertion is inaccurate because the policy of this court to which the dissent refers was not adopted, as the dissent states, “in the course of the conference proceedings on this case . . . .” Id., 915. It was adopted in the fall of 1996, while the dissenting justice was, of course, a member of this court, and has been applied consistently since that time.

At that time, a question arose regarding the powers of a senior justice of this court because of differing views of certain members of the court regarding the meaning of § 51-198. Section 51-198 (a) provides in pertinent part: “The Supreme Court shall consist of one Chief Justice and six associate judges . . . .” Thus, a court of seven members.

Section 51-198 (b) provides: “In addition thereto, each chief justice or associate judge of the Supreme Court who elects to retain his office but to retire from full-time active service shall continue to be a member of the Supreme Court during the remainder of his term of office and during the term of any reappointment under section 51-oOi, until he attains the age of seventy years. He shall be entitled to participate in the meetings of the judges of the Supreme Court and to vote as a member thereof.” (Emphasis added.) Thus, subsection (b) of § 51-198, enacted in 1974, created the category of senior justice, to be differentiated from justices engaged in “full-time active service.” Section 51-198 (b) also provided that such a senior justice shall, “in addition” to the seven members referred to in subsection (a), “continue to be a member of the Supreme Court . . . until he attains the age of seventy years . . . [and] shall be entitled to participate in the meetings of the judges of the Supreme Court and to vote as a member thereof.”

In order to reconcile both subsection (a) and subsection (b) of § 51-198, and to avoid dilution of the votes of the full-time active members of this court regarding specific cases, the court, in 1996, adopted the following policy: with respect to general policy and administrative matters to come before this court, senior justices would have a full vote; with respect to specific cases, including petitions for certification to appeal pursuant to General Statutes § 51-197f, and questions of reargument pursuant to Practice Book (1999 Rev.) § 70-7; see footnote 2 of this opinion; a senior justice would participate and vote only when specifically assigned to that case by the chief justice. This court consistently has applied this policy since 1996, and it has worked successfully.

The dissent’s legal analysis is incomplete because it refers only to subsection (a) and ignores subsection (b) of § 51-198. It is subsection (b), which was enacted long after subsection (a), that forms the doctrinal underpinning of the policy of which the dissent complains. Indeed, the dissent’s interpretation of § 51-198 would render much of subsection (b) meaningless, particularly the provisions that: (1) the constitution of the court would include senior justices “in addition” to the seven members specified in subsection (a); (2) a senior justice shall “continue to be a member of the Supreme Court”; and (3) a senior justice “shall be entitled to participate in the meetings of the judges of the Supreme Court and to vote as a member thereof.” The only such “meetings” are the court’s conferences, at which the justices vote on both individual cases and general policy and administrative matters.

In this opinion BORDEN, NORCOTT, KATZ, PALMER and PETERS, Js., concurred.

MCDONALD, C. J.

dissenting. I was opposed to the en banc consideration of this case because it was ordered eleven months after argument and just a few weeks before Justice Berdon’s seventieth birthday. Justice Berdon’s disenfranchisement was avoided on the eve of his birthday by a matter of hours and I would have been content to dissent without an opinion were it not for the per curiam opinion. That opinion describes Justice Berdon’s dissent as “inaccurate,” at atime when, under the majority’s reading of the law, Justice Berdon cannot respond.

The majority observes that decisions of this court sometimes may be delayed, as in this case, for a year after argument, but suggests that justices approaching seventy should no longer participate in cases some “three or four” months before their birthdays because it would be unseemly to allow such an old person to conclude cases after seventy. Our constitution does not, however, mandate a constitutional age of disqualification at sixty-nine, sixty-nine and one-half or sixty-nine and three-fourths. See Conn. Const., art. V, § 6. The legislature should consider fixing the problem presented in this very case.

As to the vote of senior justices, Justice Berdon did a service by giving the bar and the public notice of the “policy.” That “policy,” really an unwritten rule adopted without legislative or public oversight, could stand some outside review.

I should conclude by stating that I find nothing inaccurate in Justice Berdon’s last dissent. His record of thoughtful and sometimes provocative opinions is, to me, one consistent with Connecticut tradition begun in the very first opinion published in the Connecticut Reports, when Roger Sherman, who signed the Declaration of Independence, the Articles of Confederation and later the United States constitution in 1787, filed a dissent. Whiting v. Jewel, Kirby (Conn.) 1, 2 (1786) (Sherman, J., dissenting).

       General Statutes § 51-207 provides: “Parties entitled to be heard by a full court, (a) Each party in any case before the Supreme Court has a right to be heard by a full court. A full court shall consist of five associate judges or the Chief Justice and four associate judges or, upon order of the Chief Justice, six associate judges or the Chief Justice and five or six associate judges.
      “(b) If any judge is absent and such right is claimed or if any judge is disqualified and the absence or disqualification is not waived or if the business before the court requires it, the Chief Justice or, in the case of his absence or disqualification, the senior judge present and qualified may summon the sixth or seventh member, or both, of the Supreme Court or one or more of the judges of the Superior Court to constitute a full court, who shall attend and act as judges of the Supreme Court for the time being.
      “(c) Subject to the discharge of his duties as Chief Court Administrator, if he is also an associate judge of the Supreme Court, the Chief Court Administrator may be summoned to constitute a full court at the discretion of the Chief Justice, or, in case of his absence or disqualification, the senior judge present and qualified.” (Emphasis added.)

       Practice Book § 70-7 provides: “Consideration En Banc
      “(a) Before a case is assigned for oral argument, the chief justice or the chief judge may order, on the motion of a party or suo motu, that a case be heard en banc.
      “(b) After argument but before decision, the entire court may order that the case be considered en banc. In that event either reargument en banc shall be ordered or the justices or judges who did not hear oral argument shall listen to the tapes of the oral argument before participating in the decision.
      “(c) After decision, the entire court may order, on the motion of a party pursuant to Section 71-5 or suo motu, that reargument be heard en banc.”

       Could the rules of practice adopted by the judges trump the will of the people as expressed by the legislature? I suppose we could resurrect State v. Clemente, 166 Conn. 501, 516, 353 A.2d 723 (1974), wherein this court held that the trial court was not bound by a statute that infringed upon the judiciary’s exclusive powers as set forth in the state constitution, but I thought Clemente was finally put to rest in Bartholomew v. Schweizer, 217 Conn. 671, 681-83, 587 A.2d 1014 (1991). See also State v. Diaz, 226 Conn. 514, 558, 628 A.2d 567 (1993) (Berdon, J., with whom Katz, J., joined, dissenting).

       General Statutes § 51-203 (a) provides in relevant part: “Assignment of cases for hearing by the Supreme Court shall be made by the chief clerk of the Supreme Court at the Supreme Court room in Hartford, under the direction of the Chief Justice or an associate judge designated by the Chief Justice . . . .”

       See General Statutes §§ 51-50J, 51-183g, 51-204 and 51-207.

       Nevertheless, I express no opinion with respect to the constitutionality of § 51-183g as it now provides or if it were to be amended to include justices of the Supreme Court. See Conn. Const., art. V, § 6, as amended by art. VIII, § 2, of the amendments (“[n]o judge shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee”); but see General Statutes §§ 51-50j, 51-183g, 51-204 and 51-207.

       “General Statutes § 51-207 provides: ‘Parties entitled to be heard by a full court, (a) Each party in any case before the Supreme Court has a right to be heal'd by a full court. A full court shall consist of five associate judges or the Chief Justice and four associate judges or, upon order of the Chief Justice, six associate judges or the Chief Justice and five or six associate judges.
      “ ‘(b) If any judge is absent and such right is claimed or if any judge is disqualified and the absence or disqualification is not waived or if the business before the court requires it, the Chief Justice or, in the case of his absence or disqualification, the senior judge present and qualified may summon the sixth or seventh member, or both, of the Supreme Court or one or more of the judges of the Superior Court to constitute a full court, who shall attend and act as judges of the Supreme Court for the time being.

        “ ‘(c) Subject to the discharge of his duties as Chief Court Administrator, if he is also an associate judge of the Supreme Court, the Chief Court Administrator may be summoned to constitute a full court at the discretion of the Chief Justice, or, in case of his absence or disqualification, the senior judge present and qualified.’ ” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 913 n.1 (Berdon, J., dissenting).

       "Practice Book [1999 Rev.] § 70-7 provides: ‘Consideration En Banc
      “ ‘(a) Before a case is assigned for oral argument, the chief justice or the chief judge may order, on the motion of a party or suo motu, that a case be heard en banc.
      " '(b) After argument but before decision, the entire court may order that the case be considered en banc. In that event reargument en banc shall be ordered or the justices or judges who did not hear oral argument shall listen to the tapes of the oral argument before participating in the decision.
      “ '(c) After decision, the entire court may order, on the motion of a party pursuant to Section 71-5 or suo motu, that reargument be heard en banc.’ ” Doyle v. Metropolitan Property & Casualty Ins. Co., supra, 252 Conn. 913 n.2 (Berdon, J., dissenting).

       General Statutes § 51-199 provides: “Jurisdiction, (a) The Supreme Court shall have final and conclusive jurisdiction of all matters brought before it according to law, and may carry into execution all its judgments and decrees and institute rules of practice and procedure as to matters before it.
      “(b) The following matters shall be taken directly to the Supreme Court: (1) Any matter brought pursuant to the original jurisdiction of the Supreme Court under section 2 of article sixteen of the amendments to the Constitution; (2) an appeal in any matter where the Superior Court declares invalid a state statute or a provision of the state Constitution; (3) an appeal in any criminal action involving a conviction for a capital felony, class A felony, or other felony, including any persistent offender status, for which the maximum sentence which may be imposed exceeds twenty years; (4) review of a sentence of death pursuant to section 53a-46b; (5) any election or primary dispute brought to the Supreme Court pursuant to section 9-323 or section 9-325; (6) an appeal of any reprimand or censure of a probate judge, pursuant to section 45a-65; (7) any matter regarding judicial removal or suspension pursuant to section 51-5lj; (8) an appeal of any decision of the Judicial Review Council pursuant to section 51-5 lr; (9) any matter brought to the Supreme Court pursuant to section 52-265a; (10) writs of error, pursuant to section 52-272; and (11) any other matter as provided by law.
      “(c) The Supreme Court may transfer to itself a cause in the Appellate Court. Except for any matter brought pursuant to its original jurisdiction under section 2 of article sixteen of the amendments to the Constitution, the Supreme Court may transfer a cause or class of causes from itself, including any cause or class of causes pending on July 1, 1983, to the Appellate Court. The court to which a cause is transferred has jurisdiction.”

       Practice Book § 71-1 provides: “Judgments of the court may be embodied in judgment files, to be drawn upon request and signed by the appellate clerk. Unless the court otherwise directs, its judgments and orders shall be deemed to have been rendered or made on the date they appear in the Connecticut Law Journal, and the judgments or orders shall be entered as of that date.”

       Article fifth, § 6, of the Connecticut constitution, as amended by article eight, § 2, of the amendments, provides: “No judge shall be eligible to hold his office after he shall arrive at the age of seventy years, except that a chief justice or judge of the supreme court, a judge of the superior court, or a judge of the court of common pleas, who has attained the age of seventy years and has become a state referee may exercise, as shall be prescribed by law, the powers of the superior court or court of common pleas on matters referred to him as a state referee.”

       General Statutes § 5l-183g provides: “Retiring judge; unfinished matters. Any judge of the Superior Court may, after ceasing to hold office as such judge, settle and dispose of all matters relating to appeal cases, as well as any other unfinished matters pertaining to causes theretofore tried by him, as if he were still such judge.”

       See footnote 1 of this opinion for the text of § 51-207.

       General Statutes § 51-198 provides: “Constitution of Supreme Court; retired judges, terms, participation in meetings, (a) The Supreme Court shall consist of one Chief Justice and six associate judges, who shall, at the time of their appointment, also be appointed judges of the Superior Court.
      “(b) In addition thereto, each chief justice or associate judge of the Supreme Court who elects to retain his office but to retire from full-time active service shall continue to be a member of the Supreme Court during the remainder of his term of office and during the term of any reappointment under section 51-50i, until he attains the age of seventy years. He shall be entitled to participate in the meetings of the judges of the Supreme Court and to vote as a member thereof.”

       General Statutes § 51-197Í provides: “Further review by certification only. Upon final determination oí any appeal by the Appellate Court, there shall be no right to further review except the Supreme Court shall have the power to certify cases for its review upon petition by an aggrieved party or by the appellate panel which heard the matter and upon the vote of three justices of the Supreme Court so to certify and under such other rules as the justices of the Supreme Court shall establish. The procedure on appeal from the Appellate Court to the Supreme Court, shall, except as otherwise provided, be in accordance with the procedure provided by rule or law for the appeal of judgments rendered by the Superior Court, unless modified by rule of the justices of the Supreme Court.”

       The majority’s use of the term “per curiam” is ironic. The United States Supreme Court has used that term to publish an opinion written or drafted by a justice who left the court precipitately before publication. See S. Wasby, S. Peterson, J. Schubert & G. Schubert, “The Per Curiam Opinion: Its Nature and Function,” 76 Judicature 29,30 (1992) (referring to publication of Justice Fortas' opinion in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969], after his resignation from court).


text:
    STATE OF CONNECTICUT v. ERIC HAM

      William S. Palmieri, in support of the petition.

      Rita M. Shair, assistant state’s attorney, in opposition.
    Decided December 22, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 281 (AC 18127), is denied.


text:
    STATE OF CONNECTICUT v. TONY NIEMEYER
    The Supreme Court docket number is SC 16232.

      Leon F. Dalbec, Jr., senior assistant state’s attorney, in support of the petition.

      Pamela S. Nagy, assistant public defender, in opposition.
    Decided December 22, 1999
   The petition of the state of Connecticut for certification for appeal from the Appellate Court, 55 Conn. App. 447 (AC 18590), is granted, 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 General Statutes § 53a-92 (a) (2) (A) and (C)?”

SULLIVAN, J., did not participate in the consideration or decision of this petition.


text:
    STATE OF CONNECTICUT v. TONY NIEMEYER
    The Supreme Court docket number is SC 16232X01.

      Pamelas. Nagy, assistant public defender, in support of the petition.

      Leon F. Dalbec, Jr., senior assistant state’s attorney, in opposition.
    Decided December 22, 1999
   The defendant’s petition for certification for appeal from the Appellate Court, 55 Conn. App. 447 (AC 18590), is granted, limited to the following issues:

“1. Did the Appellate Court properly conclude that there was insufficient evidence to support a conviction for kidnapping in violation of General Statutes § 53a-92 (a) (2) (A) and (Q?
“2. If the answer is ‘yes,’ should the trial court have given a specific unanimity charge when the defendant was charged under both General Statutes § 53a-92 (a) (2) (A) and (C), and the state argued that different evidence satisfied the different, subparagraphs?”

SULLIVAN, J., did not participate in the consideration or decision of this petition.