We have held that, even after concluding that there was no abuse of discretion in granting pretrial motions to join trials, an appellate court must also consider whether, as the trial developed, the joinder of the trials resulted in substantial injustice to the defendants. See State v. White, supra, 229 Conn. 160; see also State v. DeWitt, 177 Conn. 637, 646, 419 A.2d 861 (1979) ("It is clear that the question of prejudice arising from the actual conduct of a joint trial is a question independent of the proper resolution of a pretrial motion for a separate trial. If the denial of the . . . motion has in fact resulted in substantial injustice to the accused, a new and separate trial is required."). This second inquiry is required because "exceptional cases may arise where a motion for separate trials has been denied, but during or after the joint trial it appears that the joint trial is resulting or has resulted in substantial injustice to one or more of the accused.
Connecticut has rejected the doctrine of merger. State v. Amarillo, 198 Conn. 285, 304 (1986); State v. Briggs, 179 Conn. 328, 338-39 (1979); State v. Johnson, 185 Conn. 163, 177 (1981); State v. DeWitt, 177 Conn. 637, 641 (1979). After 1972 the "Supreme Court has repeatedly held that a defendant may be convicted of two crimes that derive from the same conduct where the state is able to prove beyond a reasonable doubt the essential elements of each crime."
See State v. Salamon , supra, 287 Conn. at 531, 949 A.2d 1092 ("Since 1977, we have had numerous opportunities to examine the scope of the kidnapping statutes, generally in response to a claim that the crime of kidnapping was not intended to apply to a restraint that was merely incidental to the commission of another crime. See, e.g., State v. Luurtsema , [262 Conn. 179, 200, 811 A.2d 223 (2002) ]; State v. Wilcox , [254 Conn. 441, 465–66, 758 A.2d 824 (2000) ]; State v. Amarillo , [198 Conn. 285, 304–306, 503 A.2d 146 (1986) ]; State v. Vass , 191 Conn. 604, 614, 469 A.2d 767 (1983) ; State v. Johnson , 185 Conn. 163, 177–78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983) ; State v. Briggs , 179 Conn. 328, 338–39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980) ; State v. DeWitt , 177 Conn. 637, 640–41, 419 A.2d 861 (1979) ; State v. Lee , [177 Conn. 335, 342–43, 417 A.2d 354 (1979) ]; State v. Chetcuti , [173 Conn. 165, 170, 377 A.2d 263 (1977) ]."). Bringing such an argument to the court was not for the fainthearted—as it bordered on being frivolous—and at least could be criticized as "depreciat[ing]" other claims.
On numerous occasions between that decision and the present petitioner's criminal trial, this court reiterated that position. See, e.g., State v. Wilcox, 254 Conn. 441, 465-66, 758 A.2d 824 (2000); State v. Amarillo, 198 Conn. 285, 304-306, 503 A.2d 146 (1986); State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983); State v. Johnson, 185 Conn. 163, 177-78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, 177 Conn. 335, 342-43, 417 A.2d 354 (1979). The court appeared to leave open the possibility that there could be a factual situation in which the asportation or restraint was so miniscule that a conviction of kidnapping would constitute an absurd and unconscionable result that would render the statute unconstitutionally vague as applied.
On numerous occasions between that decision and the present petitioner's criminal trial, this court reiterated that position. See, e.g., State v. Wilcox, 254 Conn. 441, 465–66, 758 A.2d 824 (2000) ; State v. Amarillo, 198 Conn. 285, 304–306, 503 A.2d 146 (1986) ; State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983) ; State v. Johnson, 185 Conn. 163, 177–78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) ; State v. Briggs, 179 Conn. 328, 338–39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980) ; State v. DeWitt, 177 Conn. 637, 640–41, 419 A.2d 861 (1979) ; State v. Lee, 177 Conn. 335, 342–43, 417 A.2d 354 (1979). The court appeared to leave open the possibility that there could be a factual situation in which the asportation or restraint was so miniscule that a conviction of kidnapping would constitute an absurd and unconscionable result that would render the statute unconstitutionally vague as applied.
Since 1977, we have had numerous opportunities to examine the scope of the kidnapping statutes, generally in response to a claim that the crime of kidnapping was not intended to apply to a restraint that was merely incidental to the commission of another crime. See, e.g., State v. Luurtsema, supra, 262 Conn. 200; State v. Wilcox, supra, 254 Conn. 465-66; State v. Amarillo, supra, 198 Conn. 304-306; State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983); State v. Johnson, 185 Conn. 163, 177-78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S. Ct. 969, 74 L. Ed. 2d 823 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 477 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, supra, 177 Conn. 342-43; State v. Chetcuti, supra, 173 Conn. 170. In reliance on a literal application of the statutory language, we consistently have rejected that claim, explaining that, because the statutory definitions of the terms "restrain" and "abduct" contain no time or distance specifications, the offense of kidnapping does not require proof that the victim was confined for any minimum period of time or moved any minimum distance.
" (Internal quotation marks omitted.) State v. Amarillo, supra, 305; see State v. DeWitt, 177 Conn. 637, 641, 419 A.2d 861 (1979). "The proper inquiry is not whether the kidnapping was incidental to the sexual assault, but whether the restraint was accomplished with the requisite intent to constitute kidnapping, as well as the state of mind required for sexual assault. Whether the essential elements of kidnapping are proved beyond a reasonable doubt is a question for the jury.
The test for this court is whether the denial of the motion for a separate trial has resulted in substantial injustice to the accused." State v. Klein, 97 Conn. 321, 324, 116 A. 596 (1922); State v. DeWitt, 177 Conn. 637, 646, 419 A.2d 861 (1979). The record does not indicate that Smith ever attempted to call Lott as a witness.
The test for the trial court is whether substantial injustice is likely to result unless a separate trial be accorded." State v. Haskins, 188 Conn. 432, 450, 450 A.2d 828 (1982); State v. DeWitt, 177 Conn. 637, 644, 419 A.2d 861 (1979); State v. Varricchio, 176 Conn. 445, 447-48, 408 A.2d 239 (1979); State v. McLucas, 172 Conn. 542, 559, 375 A.2d 1014, cert. denied, 434 U.S. 855, 98 S.Ct. 174, 54 L.Ed.2d 126 (1977); State v. Holup, 167 Conn. 240, 245, 355 A.2d 119 (1974); State v. Klein, 97 Conn. 321, 324, 116 A. 596 (1922); State v. Castelli, 92 Conn. 58, 63, 101 A. 476 (1917); State v. Brauneis, 84 Conn. 222, 226, 79 A. 70 (1911). "`[T]he phrase "prejudicial to the rights of [one or more of the accused]" means something more than that a joint trial will probably be less advantageous to the accused than separate trials.
The defendant also claims that the trial court erred by not instructing the jury that the crime of kidnapping could have been merely incidental to the crime of sexual assault. See State v. Bell, 188 Conn. 406, 416, 450 A.2d 356 (1982); State v. Briggs, 179 Conn. 328, 339, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, 177 Conn. 335, 343, 417 A.2d 354 (1979). The defendant relies primarily on State v. Dubina, supra, 100, where we held that whether the detention was merely incidental to another crime was a question for the jury.