joins, dissenting. This court, sitting en banc, reverses our original decision in State v. Chapman 227 Conn. 616, 632 A.2d 674 (1993) (Chapman I). The new majority unfairly reaches out for issues not raised by either the state or the defendant and purports to base its decision on Griffin v. United States, 502 U.S. , 112 S. Ct. 466, 116 L. Ed. 2d 371 (1991). In doing so, it not only fails in its analysis of Griffin, but, more importantly, ignores the longstanding common law of our state, and the due process clause of our state constitution. The majority now rules that, although the jury should not have been instructed that they could find the defendant guilty of a statutory alternative method of committing a crime for which there is no evidence, such instructional error does not offend due process. As a result, the majority concludes that such a jury charge is subject merely to a nonconstitutional harmless error analysis.
I
I will not repeat our entire analysis in Chapman I. I will, however, underscore some of the points we made in that decision. The analysis in Chapman I was not based on federal precedent, but rather on the common law and state constitutional law of this state.
In ChapmanI, we held, and the present majority concedes, that it was improper for the trial court to have *549instructed the jury that they may find a criminal defendant guilty of a statutory alternative for which there is no evidence. Id., 618. We concluded, however, that this error not only violated our long established common law, but also violated the due process clause of the state constitution. Id., 619. We reasoned as follows: “An instruction on a statutory alternative that is not supported by the evidence violates a defendant’s fundamental right, protected by the due process clause of article first, § 8, of the Connecticut constitution, to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. State v. Williams, [202 Conn. 349, 363, 521 A.2d 150 (1987)]; see also State v. Rodriguez, 223 Conn. 127, 147, 613 A.2d 211 (1992); State v. Allen, 216 Conn. 367, 388-89, 579 A.2d 1066 (1990); State v. John, 210 Conn. 652, 688, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S. Ct. 84, 107 L. Ed. 2d 50 (1989); State v. Arnold, 201 Conn. 276, 281-82, 514 A.2d 330 (1986); State v. Reid, 193 Conn. 646, 666, 480 A.2d 463 (1984). A similar principle applies when the trial court instructs the jury that it may convict a defendant on the basis of a statutory alternative for which there is no evidence. Accordingly, it is firmly entrenched in the common law of this state that [t]he court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding. State v. Williams, supra, 364; Batick v. Seymour, 186 Conn. 632, 641, 443 A.2d 471 (1982). [I]f a claim is made against the evidence in the case, and wholly unsupported by proof, it is error to submit it to the jury as if the evidence justified the claim, and without comment, as there is great danger of its leading to an unjust verdict. Lewis v. Phoenix Mutual Life Ins. Co., 44 Conn. 72, 88 (1876); see also Allen v. Rundle, 50 Conn. 9, 33, 47 A. 599 (1882); Hartford v. Champion, 58 Conn. 268, 276, 20 A. 471 (1890); McGarry v. Healey, 78 Conn. 365, 367, 62 A. 671 (1905); Miles *550v. Sherman, 116 Conn. 678, 682, 166 A. 250 (1933) . . . Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979).
“The principle of not submitting to the jury any issue for which there is insufficient evidence has roots in our early common law. Justice Swift, writing in 1822, shortly after the adoption of the state constitution in 1818, noted that the jury in its deliberations must find expressly all the facts put in issue, or must negate them all. 2 Z. Swift, Digest of the Laws of the State of Connecticut (1823) p. 774. Similarly, Justice Swift recognized the court’s power to direct the jury to say, in their verdict, on which count they find the defendant guilty, and to find him not guilty on the rest, so that if he should be found guilty on an insufficient count, he might take advantage of it by motion in arrest. Id., p. 383. Also imbedded in our common law is the notion that the judge has the power to defend the innocent against an unjust verdict .... Id., p. 413. Implicit in the power to set aside a verdict that has no support in the evidence, is the idea that the court should not submit to the jury, in the first instance, an issue that has no support in the evidence. By doing so, the court invites an unjust verdict.” (Internal quotation marks omitted.) Chapman I, supra, 227 Conn. 627-29.
The majority in this case decides that the error is not one of constitutional magnitude on the grounds that (1) our cases prior to Chapman I were based solely on federal constitutional precedent and the United States Supreme Court has reversed itself in the recent case of Griffin v. United States, supra, 112 S. Ct. 466, and (2) the state constitutional issue is not before us because it was not part of the certified issue and the defendant failed to furnish us with a state constitutional analysis. I will discuss the purported waiver of the state constitutional issue in part II of this dissent.
*551The majority’s reliance on Griffin is misplaced, because Griffin is not sufficiently dispositive of the issues in this case to allow this court to abrogate the Williams line of cases without analysis. “In Griffin, the court reaffirmed the rule, under federal law, set forth in Turner v. United States, 396 U.S. 398, 420, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), as follows: [Wjhen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged. . . . Griffin is therefore inapposite in this case because it is limited to statutory alternatives charged in the conjunctive. In the present case, the trial court’s instructions to the jury . . . charged the defendant disjunctively.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Chapman I, supra, 227 Conn. 625-26.
In State v. Reid, supra, 193 Conn. 667 n.22, Justice Shea discussed this distinction and cautioned against the confusion of cases in which the trial court permits the jury to consider an “improper basis for a conviction under circumstances where it is impossible to tell whether the conviction rests upon the impermissible ground” with cases involving the rule that “where a guilty verdict is returned on an information charging several acts in the conjunctive the information is not defective in relation to the verdict if the evidence is sufficient with respect to any of the acts charged.” This distinction is sound. Even if the jury is erroneously instructed in the conjunctive—for example, it is instructed that in order to find the defendant guilty it must find both a threat and the use of force, and the evidence supports a conviction solely on the basis of the use of force—on a verdict the court can nevertheless be assured that the jury predicated its decision on an alternative for which there was evidence and the alternative for which there is no evidence becomes *552superfluous. On the other hand, if the jury is erroneously instructed that it may find guilt on the basis of statutory alternatives disjunctively, as in the present case, there is no way to determine whether the jury predicated its finding on the alternative that was supported by evidence. Because of this distinction, regardless of whether Williams was predicated on federal law, state common law, or the state constitution, the decision in Griffin does not control this case.
Finally, as we noted in Chapman I, under the state constitution a per se reversal rule is required. “Ordinarily, we abide by the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. . . . Nevertheless, some constitutional errors require automatic reversal in order to vindicate the fundamental right in question. [Ijnfringements of a defendant’s constitutional rights in a criminal case where harmless error analysis is deemed inappropriate involve situations where the constitutional violation must be deemed harmful under all circumstances or where it is of such a nature that ascertainment of its harmfulness is impossible or so difficult as not to warrant the endeavor. Such cases are rare exceptions to the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. . . . State v. Mebane, 204 Conn. 585, 604-605, 529 A.2d 680 (1987), cert. denied, 484 U.S. 1046, 108 S. Ct. 784, 98 L. Ed. 2d 870 (1988) (Shea, J., concurring); J. Bruckmann, G. Nash & J. Katz, Connecticut Criminal Caselaw Handbook (1989) p. 492.
“The present case falls within the category of cases that require automatic reversal. ... By instructing the jury on a statutory alternative for which there was *553no evidence, the trial court expressly sanctions a verdict that has no foundation in the evidence. Following such an instruction, it is impossible to determine whether the jury based its decision on an act for which there was insufficient evidence .... We will never know the statutory predicate for the jury’s verdict. Accordingly, when the jury, on the basis of the trial court’s instructions, renders a general verdict that does not specify the statutory alternative on which it rests, it must be set aside if the evidence as to either alternative submitted was insufficient . . . without engaging in a harmless error analysis.” (Citations omitted; internal quotation marks omitted.) Chapman I, supra, 227 Conn. 629-31.
Furthermore, as we pointed out in Chapman I, the per se rule is consistent with the longstanding common law principle in this state that an “unjust verdict” cannot be tolerated. “We have consistently held that no issue may be submitted to the jury for which there is no evidence. Thus, we have ordered new trials in cases in which the trial court improperly submitted to the jury an issue for which there was no evidence. Novak v. Anderson, [supra, 178 Conn. 508]; Miles v. Sherman, [supra, 116 Conn. 683]; Lewis v. Phoenix Mutual Life Ins. Co., [supra, 44 Conn. 88]. Moreover, this court has recognized the trial court’s inherent power to set aside an unjust verdict. State v. Hammond, 221 Conn. 264, 267-70, 604 A.2d 793 (1992); State v. Avcollie, 178 Conn. 450, 456, 423 A.2d 118 (1979), cert. denied, 444 U.S. 1015, 100 S. Ct. 667, 62 L. Ed. 2d 645 (1980).” Chapman I, supra, 227 Conn. 631 n.11.
II
The majority refuses to reach the state constitution on the grounds that no state constitutional issue was expressly framed within the certified issue, and the defendant failed to provide an adequate analysis of our *554state constitution. We certified the following issues: “(1) Did the Appellate Court correctly conclude that the statutory alternative analysis set forth in State v. Williams, [supra, 202 Conn. 363-64], applied to alternative language occurring within the same statutory subsection and that the trial court’s instruction permitted the jury to consider a separate and distinct theory of criminal liability? (2) Was the Appellate Court correct in its failure to consider whether any error in the trial court’s charge was harmless beyond a reasonable doubt?” State v. Chapman, 223 Conn. 923, 923-24, 614 A.2d 827 (1992).
The first certified issue referred to specific pages of State v. Williams, supra, 202 Conn. 363-64, that expressly ground the precise issues in this case in the state constitution. The second certified issue assumes a constitutional violation and merely raises whether the court should employ a constitutional harmless error analysis rather than the per se harmlessness rule that had been applied by the Appellate Court. See State v. Chapman, 28 Conn. App. 360, 366, 610 A.2d 1328 (1992). A fair, and indeed the only, reading of both certified issues is whether threat and force are statutory alternatives under Williams, and, if so, whether we should abandon the rule requiring automatic reversal and utilize the constitutional standard requiring the state to prove the error harmless beyond a reasonable doubt. Therefore, the certified issues did not place the defendant on notice that the viability of Williams was in jeopardy under either the federal or state constitutions.
Furthermore, no argument presented by the state ever put the defendant on notice that the presence of constitutional error was in question. In its petition for certification, the state sought review of “[w]hether the Appellate Court erred by failing to consider whether any error in the trial court’s charge was harmless beyond a reasonable doubtV’ (Emphasis added.) This *555issue proffered by the state concedes that it is an error of constitutional magnitude. In its brief, the state only raised the following arguments: (1) the Williams line of cases does not apply to the statutory alternatives of force and threat of force because the alternatives are not conceptually distinct, and are found within the same statutory subsection and (2) “[t]he Appellate Court erred by failing to consider whether any error in the trial court’s charge was harmless beyond a reasonable doubt.” In its harmlessness analysis, the state’s argument was that the trial court’s instructions were harmless beyond a reasonable doubt.
Finally, although the defendant’s initial brief did not elaborately explore the state constitutional issue, he did raise it adequately. It is understandable that the defendant did not devote a great deal of analysis to the issue, because the defendant relied on cases such as Williams, which already decided the issue, the certified issue implicitly conceded a constitutional violation, and the state did not make any serious attempt to expand the certified issue and argue that there was no constitutional error. In addition, the majority in Chapman I analyzed the issues predicated on the state constitution.
The unfairness of the majority decision here is further underscored in the order of reargument before the en banc court. We requested the parties to file supplemental briefs “not to exceed ten pages in length and devoted to the issue of how the opinion in [Chapman I] conflicts with the opinion in State v. Tucker, [226 Conn. 618, 629 A.2d 1067 (1993)], and the other cases referred to in the State’s . . . motion for reconsideration or reargument en banc . . . .” The only issue in Tucker arguably relevant to the issues in this case is whether the statutory alternatives of threat and force are conceptually indistinct for evidentiary sufficiency as well as jury unanimity purposes—an issue the *556majority opts not to address. There was not even a suggestion in the order of reargument that we were contemplating the abrogation of the state constitutional analysis in Chapman I, or that the court intended to tinker with the standard of review, let alone abandon a constitutional harmlessness analysis altogether. Accordingly, the state’s supplemental brief merely expanded on its hypothesis, which it had already briefed, that the use of force and threat of force are conceptually indistinct. The defendant’s supplemental brief responded to this argument within the ten pages allotted by the court’s order. Therefore, in all the proceedings before the Appellate Court, and before this court, the state has conceded that if the alternatives were distinct, there was constitutional error, but any constitutional error was harmless beyond a reasonable doubt.
Today, not only do we reverse our longstanding common law in Connecticut with no analysis of why we should do so, but the majority of this court has deprived the defendant of his fundamental right of due process to be heard before this court “in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). Although there may be no fundamental right to an appeal from a criminal conviction; Griffin v. Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 100 L. Ed. 891 (1956); once the state grants criminal defendants the right to appeal, the procedures it uses must conform to due process of the law. North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969); Griffin v. Illinois, supra, 18. As a result of this court’s departure from the original certified issue,1 the order on reargument that surely misled the defendant by limiting the briefs to a ten page *557discussion of an issue not considered on reargument and failing to identify the actual issue considered, and the injection of an issue not argued by the state without giving the defendant an opportunity to respond and to be heard, the defendant has been deprived of his right to due process of the law under both the state and federal constitutions. The court’s actions today are regrettable.
Accordingly, I respectfully dissent.
The court, of course, has the authority to depart from a certified issue if the dictates of justice so demand. Paranteau v. DeVita, 208 Conn. 515, 516 and n.1, 544 A.2d 634 (1988). Furthermore, the court has the author*557ity and the duty to abrogate the fundamental rule of law set out in the Williams line of cases if it believes the rule to be unsound. The court should not take such momentous action, however, without notice and an opportunity for the defendant to bo heard.