concurring. Although I agree with the majority that the Appellate Court abused its discretion in the present case, I also believe that the majority has diluted the contours of our supervisory duty with its “note of caution,” which warns that “[i]t will be a rare case that does not fall within the broad scope of the discretion conferred upon the Appellate Court.” Because this note suggests that my colleagues and I differ in the ways that we regard the result that we have reached, I write separately to express my views.
All of our courts — trial, Appellate and Supreme— must above all else ensure that they do justice. At the risk of stating the obvious, the stakes are high in a criminal case. Our judges determine who shall live and who shall die, who shall be stripped of liberty and who shall remain free. Given these life-shattering consequences, the courts must exercise their discretion in a manner that comports with justice, not merely the black *64letters of the law. As we put it two decades ago, “[discretion . . . imports something more than leeway in decision-making. See State v. Battle, 170 Conn. 469, 365 A.2d 1100 [1976]; State v. Gilligan, 92 Conn. 526, 103 A. 649 [1918]; McCormick, Evidence (2d Ed.) § 190. Discretion means a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.” (Internal quotation marks omitted.) State v. Onofrio, 179 Conn. 23, 29, 425 A.2d 560 (1979). Accordingly, our duty to review a lower court’s exercise of its discretion should not be circumscribed by a self-imposed caution that reversal will be a rarity. Instead, we must be guided by fundamental fairness, the touchstone of which is the concept that justice must be done for everyone who comes before the law.
For these reasons, I am able to join only in the result that the majority has reached in this case.