Bell v. Commissioner of Correction ( 2021 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
LEON BELL v. COMMISSIONER
OF CORRECTION
(SC 20223)
Robinson, C. J., and Palmer, D’Auria, Kahn,
Ecker and Vertefeuille, Js.*
Syllabus
In accordance with this court’s decision in State v. Salamon (287 Conn.
509), when a criminal defendant is charged with kidnapping in conjunc-
tion with another underlying crime, such as robbery, the jury must be
instructed that the defendant cannot be convicted of kidnapping if the
restraint imposed on the victim was merely incidental to the commission
of that underlying crime.
The petitioner, who had been convicted of multiple counts of kidnapping
in the first degree and robbery in the first degree, among other crimes,
sought a writ of habeas corpus, claiming a violation of his due process
rights to a fair trial under the federal and state constitutions. His convic-
tions stemmed from robberies that he had committed at two separate
restaurants. While committing one of the robberies, the petitioner forced
the sole, remaining employee to open the restaurant’s safe, ordered her
to sit in a chair facing in the opposite direction of the safe, and, after
approximately one or two minutes, ordered her to enter the restaurant’s
walk-in refrigerator and to remain inside of it for fifteen minutes. While
committing the other robbery, the petitioner ordered the restaurant
employee to enter the restaurant’s walk-in refrigerator immediately after
she had opened the safe for him. The petitioner confessed to both
robberies and indicated that he had removed money from the restau-
rants’ safes while the victims were in the walk-in refrigerators. Although
unarmed during the robberies, the petitioner had positioned a wooden
coat hanger under his jacket to make it appear as if he were brandishing
a firearm. Following this court’s determination that Salamon, which
had been decided after the petitioner’s trial, applied retroactively in
habeas actions, the petitioner challenged his kidnapping convictions on
the ground that the instructions at his criminal trial were not in accor-
dance with the requirements set forth in Salamon. The habeas court
denied the petition, concluding that the respondent, the Commissioner
of Correction, had demonstrated that the absence of a Salamon instruc-
tion was harmless error. On the granting of certification, the petitioner
appealed to the Appellate Court, which reversed the habeas court’s
judgment. The Appellate Court applied the harmless error standard set
forth in Neder v. United States (527 U.S. 1) in determining that the
absence of a Salamon instruction at the petitioner’s criminal trial was not
harmless beyond a reasonable doubt. The respondent, on the granting
of certification, appealed to this court. Held that it was unclear whether
the absence of a Salamon instruction at the petitioner’s criminal trial
was harmless error, as this court could not conclude that a properly
instructed jury would have found the defendant guilty of the kidnapping
charges beyond a reasonable doubt, and, accordingly, the petitioner was
entitled to a new trial on those charges: in the companion case of Banks
v. Commissioner of Correction (339 Conn. 1), this court clarified that,
on collateral review, the harmlessness of a trial court’s failure to give
a Salamon instruction is to be assessed in accordance with the standard
set forth in Brecht v. Abrahamson (507 U.S. 619), which requires a new
trial only if the instructional error had a substantial and injurious effect
or influence in determining the jury’s verdict, rather than in accordance
with the standard set forth in Neder; moreover, in circumstances such
as those that were at issue in Banks, in which it was clear that the
petitioner forcibly moved and restrained his victims, after having taken
their property, for the apparent purpose of escaping from the crime
scene undetected and unhindered, it was reasonable for the habeas court
to conclude that the Salamon error was harmless, as the asportation
and restraint of the victims in Banks bore criminal significance indepen-
dent of the underlying robberies; in the present case, however, unlike
in Banks, it was not clear whether the petitioner forcibly moved and
restrained his victims after having taken possession of their property,
as the jury reasonably could have found that the petitioner forced the
restaurant employees into the walk-in refrigerators not to facilitate his
escape but, rather, to incapacitate them while he completed the robber-
ies and to maintain the illusion that he was armed, as he would have
needed to remover the coat hanger from under his jacket in order to
use both of his hands to empty the safes.
(Two justices concurring separately in two opinions)
Argued December 16, 2019—officially released May 12, 2021**
Procedural History
Amended petition for a writ of habeas corpus, brought
to the Superior Court in the judicial district of Tolland
and tried to the court, Oliver, J.; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to the Appellate Court, DiPen-
tima, C. J., and Sheldon, J., with Lavine, J., dissenting,
which reversed the judgment of the habeas court and
remanded the case to that court with direction to grant
the petition, and the respondent, on the granting of
certification, appealed to this court. Affirmed.
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, former state’s attor-
ney, and Tamara Grosso, assistant state’s attorney, for
the appellant (respondent).
David B. Rozwaski, assigned counsel, for the appel-
lee (petitioner).
Opinion
PALMER, J. This appeal and the companion case
we also decide today; see Banks v. Commissioner of
Correction, 339 Conn. 1, A.3d (2021); invite us
to further clarify our decision in State v. Salamon, 287
Conn. 509, 949 A.2d 1092 (2008), in which we overruled
our long-standing interpretation of Connecticut’s kid-
napping statutes and held that, when a criminal defen-
dant is charged with kidnapping in conjunction with
another underlying crime, such as rape or assault, the
defendant is entitled to a jury instruction that he cannot
be convicted of kidnapping if the restraint imposed on
the victim was merely incidental or necessary to the
underlying crime. See id., 542–50. In Banks, we answered
two questions left open by Salamon and its progeny.
First, we clarified that, in a habeas action, the harm-
lessness of a Salamon error is to be assessed according
to the legal standard that the United States Supreme
Court articulated in Brecht v. Abrahamson, 507 U.S.
619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), which
mandates a new trial if the instructional error ‘‘had [a]
substantial and injurious effect or influence in determin-
ing the jury’s verdict’’; (internal quotation marks omit-
ted) id., 623; rather than the standard set forth in Neder
v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed.
2d 35 (1999), which requires a new trial unless it is
‘‘clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the
[instructional] error . . . .’’ Id., 18; see Banks v. Com-
missioner of Correction, supra, 4. Second, when, as in
Banks, it is clear that a perpetrator moved and
restrained his victims, after having robbed them, for
the purpose of escaping unobstructed and undetected
from the crime scene, a habeas court may conclude as
a matter of law that the lack of a Salamon instruction
was harmless error. See Banks v. Commissioner of
Correction, supra, 44–45. As we explain more fully here-
inafter, in the present case, unlike in Banks; see id., 45;
it is not clear that the petitioner, Leon Bell, forcibly
moved and restrained his victims after having taken
property in their possession. For that reason, we can
have no fair assurance that the Salamon error did not
have a substantial and injurious effect or influence in
determining the jury’s verdict. Put differently, following
a thorough, de novo review of the record, we cannot
be confident that a properly instructed jury would have
found the defendant guilty beyond a reasonable doubt.
Accordingly, we affirm the judgment of the Appellate
Court, which reversed the judgment of the habeas court
denying Bell’s habeas petition and ordered a new trial
on the kidnapping charges. Bell v. Commissioner of
Correction, 184 Conn. App. 150, 173, 194 A.3d 809(2018).
I
In 2001, the petitioner was arrested and charged in
connection with the robberies of two Friendly’s restau-
rants, the first in Manchester and the second in Glaston-
bury. Id., 153. The two cases were consolidated and
tried jointly before a jury in 2002. See id. The facts that
the jury reasonably could have found with respect to
both robberies are set forth in the opinion of the Appel-
late Court.
‘‘At approximately 1 a.m. on April 12, 2001, Cheryl
Royer was the last employee to leave the Friendly’s
restaurant in Manchester. As she was exiting the restau-
rant, the petitioner approached her, stated that he had
a gun, and ordered her to ‘get back inside’ and to ‘give
him the money.’ Once Royer informed the petitioner
that she did not have any money, the petitioner told
her ‘to get the money from the safe.’ The petitioner and
Royer entered the restaurant together and walked to
the manager’s office, the location of the safe. Royer
then opened the safe at the petitioner’s direction and
‘was told to sit in the chair in the corner and turn away.’
After approximately ‘[one] minute’ or ‘[a] matter of
minutes’ [during which Royer was] sitting in the chair,
the petitioner told Royer ‘to go into the walk-in refriger-
ator.’ The walk-in refrigerator was approximately fif-
teen feet down the hall from the manager’s office, and,
after the petitioner finished looting the safe, he ordered
Royer to proceed into the refrigerator. Once she entered
the refrigerator, and after the refrigerator door shut
behind her, the petitioner told her ‘to stay in there for
fifteen minutes.’ Royer smoked part of a cigarette, and,
after a few minutes, she left the refrigerator and ran
into the office to call the police. The petitioner was not
in the restaurant when Royer exited the refrigerator.
‘‘Two days later, on April 14, 2001, at approximately
6 a.m., Tricia Smith was the first employee to arrive
for the opening shift at the Friendly’s restaurant in
Glastonbury. As she entered the restaurant, the peti-
tioner approached her from behind and ‘told [her] to
turn off the alarm.’ Smith testified: ‘He told me—he
asked me where the safe was, I told him it was in the
back dish room, [and] he told me to go back and open
it.’ Smith did not see a gun, but the petitioner had
something underneath his jacket that looked like one.
Smith led the petitioner to the safe, and, after opening
it, ‘[the petitioner] told [her] to go into the walk-in
cooler. So [she] unlocked it and got in.’ The walk-in
refrigerator was ten feet away from the safe, and the
petitioner ordered Smith into the refrigerator ‘[j]ust two
[or] three minutes’ after she first saw him. Once she
was inside the refrigerator, the petitioner told her that
‘he would let [her] know when he was finished’ and
when it was safe to come out. Approximately two
minutes after entering the refrigerator, Smith heard the
petitioner say something that she could not make out.
‘[She] then waited a few more minutes after that’ before
she peeked out of the refrigerator to see if the petitioner
had left the restaurant. Seeing that the petitioner had
left, she exited the refrigerator and ran to the nearby
gas station for help.
‘‘Finally, although the petitioner did not testify at [his
criminal] trial, his statement to the police was read into
the record and became a full exhibit. In that statement,
he confessed to both robberies. With respect to the
Manchester robbery involving Royer, his statement pro-
vided in relevant part: ‘Once we were in the back room,
[Royer] opened the safe. After she opened the safe, I
asked her which one—which one is the walk-in refriger-
ator. She pointed to one, and I asked her to step in
there for a minute and I’ll come back and get you when
I’m through. I then took the money out of the safe. . . .
After I got the money, I left. The manager was still in the
refrigerator when I left.’ With respect to the Glastonbury
robbery involving Smith, the petitioner’s statement pro-
vided in relevant part: ‘The only other robbery I did
was the one in Glastonbury this morning, [April 14,
2001]. . . . I told [Smith] to open the safe. . . . After
she opened the safe, I told her to get in the refrigerator.
After I got the money from the safe, I left.’ ’’ (Footnote
omitted.) Id., 160–62.
The jury found the petitioner guilty of two counts of
kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (B),1 two counts of robbery in
the first degree in violation of General Statutes § 53a-
134 (a) (4), two counts of burglary in the third degree
in violation of General Statutes § 53a-103 (a), and two
counts of larceny in the third degree in violation of
General Statutes (Rev. to 2001) § 53a-124 (a) (2). The
trial court rendered judgment in accordance with the
jury verdict and sentenced the petitioner to a total effec-
tive term of imprisonment of thirty-six years.
The Appellate Court rejected the petitioner’s claims
on direct appeal, and this court denied his petition for
certification to appeal. See State v. Bell, 93 Conn. App.
650, 652, 891 A.2d 9, cert. denied, 277 Conn. 933, 896
A.2d 101 (2006). At no time on direct appeal did the
petitioner challenge the propriety of the trial court’s
jury instructions on kidnapping.
Subsequently, in 2008, ‘‘we decided Salamon, in
which we reconsidered our long-standing interpretation
of our kidnapping statutes, General Statutes §§ 53a-91
through 53a-94a. . . . [In that case] [t]he defendant
[Scott Salamon] had assaulted the victim at a train sta-
tion late at night . . . and ultimately was charged with
kidnapping in the second degree in violation of [General
Statutes] § 53a-94, unlawful restraint in the first degree,
and risk of injury to a child. . . . At trial, [Salamon]
requested a jury instruction that, if the jury found that
the restraint had been incidental to the assault, then
the jury must [find him not guilty] of the charge of
kidnapping. . . . [Consistent with established prece-
dent of this court] [t]he trial court declined to give
that instruction [and Salamon was convicted of second
degree kidnapping in addition to the two other
crimes]. . . .
‘‘[On appeal, Salamon requested that we reexamine]
our long-standing interpretation of the kidnapping stat-
utes to encompass even restraints that merely were
incidental to and necessary for the commission of
another substantive offense, such as robbery or sexual
assault. . . . We [did so and] ultimately concluded that
[o]ur legislature . . . intended to exclude from the
scope of the more serious crime of kidnapping and its
accompanying severe penalties those confinements or
movements of a victim that are merely incidental to
and necessary for the commission of another crime
against that victim. Stated otherwise, to commit a kid-
napping in conjunction with another crime, a defendant
must intend to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which is necessary to commit the other crime. State v.
Salamon, supra, 287 Conn. 542.
‘‘We [further] explained in Salamon that a defendant
may be convicted of both kidnapping and another sub-
stantive crime if, at any time prior to, during or after
the commission of that other crime, the victim is moved
or confined in a way that had independent criminal
significance, that is, the victim was restrained to an
extent exceeding that which was necessary to accom-
plish or complete the other crime. Whether the move-
ment or confinement of the victim is merely incidental
to and necessary for another crime will depend on the
particular facts and circumstances of each case. Conse-
quently, when the evidence reasonably supports a find-
ing that the restraint was not merely incidental to the
commission of some other, separate crime, the ultimate
factual determination must be made by the jury. For
purposes of making that determination, the jury should
be instructed to consider the various . . . factors [rele-
vant thereto] . . . . Id., 547–48.’’ (Internal quotation
marks omitted.) State v. Banks, supra, 339 Conn. 11–12.
We identified those factors as including ‘‘(1) the nature
and duration of the victim’s movement or confinement,
(2) whether that movement or confinement occurred
during the commission of the separate offense, (3)
whether the restraint was inherent in the nature of the
separate offense, (4) whether the restraint prevented
the victim from summoning assistance, (5) whether the
restraint reduced the perpetrator’s risk of detection,
and (6) whether the restraint created a significant dan-
ger or increased the victim’s risk of harm independent
of that posed by the separate offense.’’ Id., 42.
Three years later, in Luurtsema v. Commissioner of
Correction, 299 Conn. 740, 12 A.3d 817 (2011), we held
that Salamon applies retroactively in habeas actions.
Id., 751 (plurality opinion). Soon thereafter, in 2012, the
petitioner filed the habeas petition that is the basis
for this appeal. In his amended petition, the petitioner
alleged, among other things, a violation of his due pro-
cess right to a fair trial under the federal and state
constitutions, challenging his kidnapping convictions
on the ground that the instructions given to the jury were
not in accordance with Salamon.2
The habeas court denied the petition. That court con-
cluded that the respondent, the Commissioner of Cor-
rection, had demonstrated that the absence of a
Salamon instruction at the petitioner’s criminal trial
was harmless error. Specifically, the habeas court was
of the view that, although forcing the victims to enter
the walk-in refrigerators did not create a significant
danger or increased risk of harm independent of that
posed by the robberies, such conduct was not inherent
in the robberies themselves but, rather, helped prevent
the victims from summoning assistance, thereby reduc-
ing the risk of the petitioner’s being detected.
The habeas court granted the petitioner’s certifica-
tion to appeal, and the Appellate Court, with one judge
dissenting, reversed the habeas court’s judgment. Bell
v. Commissioner of Correction, supra, 184 Conn. App.
173; see also id., 174 (Lavine, J., dissenting). The Appel-
late Court applied the harmless error standard adopted
in Neder v. United States, supra, 527 U.S. 18; Bell v.
Commissioner of Correction, supra, 158 n.6; and deter-
mined that the absence of a Salamon instruction was
not harmless beyond a reasonable doubt. Id., 153, 159.
Specifically, the Appellate Court, applying the six factor
test that we set forth in Salamon and relying on its
analysis and conclusion in Banks v. Commissioner of
Correction, 184 Conn. App. 101, 194 A.3d 780 (2018),
rev’d, 339 Conn. 1, A.3d (2021); see Bell v.
Commissioner of Correction, supra, 153, 166–72; held
that ‘‘[t]he significance of the Salamon factors that do
weigh in favor of the petitioner, namely, the nature
and duration of the movement and confinement of the
employees, whether such confinement occurred during
the commission of the robbery and whether the
restraint was inherent in the nature of the robbery,
outweighs the significance of those that support the
respondent’s claim of harmless error.’’ (Internal quota-
tion marks omitted.) Bell v. Commissioner of Correc-
tion, supra, 171. In a dissenting opinion, Judge Lavine
reached a different conclusion, explaining that, in his
view, ‘‘[c]onsidering all the facts and circumstances
. . . no reasonable fact finder, even if properly
instructed in accordance with Salamon, could find that
the restraint of Royer and Smith was merely incidental
to or a necessary part of either robbery.’’ Id., 186–87
(Lavine, J., dissenting). We granted the respondent’s
petition for certification, limited to the following issue:
‘‘Did the Appellate Court properly conclude that the
absence of an instruction in accordance with . . .
Salamon . . . at the petitioner’s criminal trial was not
harmless error?’’ Bell v. Commissioner of Correction,
330 Conn. 949, 197 A.3d 390 (2018).
II
We turn now to the dispositive question posed by
this appeal, namely, whether, under the legal frame-
work that we adopted in Banks, the omission of a Sala-
mon instruction at the petitioner’s criminal trial
constituted harmful error requiring a new trial on the
kidnapping counts. Although a familiarity with Banks
is presumed, we briefly review the facts and holdings
of that case.
A
In Banks, the petitioner, Mark Banks, also was con-
victed of multiple counts of kidnapping in the first
degree in violation of § 53a-92 (a) (2) (B), in connection
with the robberies of two commercial establishments—
in that case, retail mattress stores. Banks v. Commis-
sioner of Correction, supra, 339 Conn. 5, 10. The undis-
puted testimony was that Banks held his victims at
gunpoint, forced them to give him cash from the store
registers, led them a short distance to the store rest-
rooms, and forced them to remain therein, on threat of
death, while he escaped the premises. Id., 5–9. As in
the present case, the primary defense at trial was that
the state had misidentified the perpetrator. Id., 9. The
habeas court concluded that, although the jury should
have been instructed in accordance with Salamon, the
lack of a Salamon instruction was harmless error
because the conduct that gave rise to the kidnapping
convictions had taken place after Banks forcibly took
property in the victims’ possession and, therefore, nec-
essarily bore independent criminal significance. See
id., 13.
In reversing the judgment of the Appellate Court,
which had reversed the judgment of the habeas court
denying Banks’ habeas petition, we held, first, that, on
collateral review, the harmlessness of a trial court’s
failure to properly instruct a jury in accordance with
Salamon is to be assessed in accordance with Brecht,
which sets forth the standard generally used in federal
habeas actions for determining the harmlessness of con-
stitutional errors, and not the more petitioner friendly
test of Neder, ordinarily applicable to claims of constitu-
tional magnitude raised on direct, federal appeal. Id.,
15, 19. Under Brecht, the harmlessness of constitutional
errors in a federal habeas action is assessed according
to ‘‘whether the . . . error had [a] substantial and inju-
rious effect or influence in determining the jury’s ver-
dict.’’ (Internal quotation marks omitted.) Brecht v.
Abrahamson, supra, 507 U.S. 623. Thus, we explained
in Banks that ‘‘[t]he Brecht standard reserves the rem-
edy of a new trial for errors resulting in actual prejudice,
as distinguished from errors giving rise to a mere possi-
bility of harm. [Id.], 637.’’ (Internal quotation marks
omitted.) Banks v. Commissioner of Correction, supra,339 Conn. 16. As we further explained in Banks, how-
ever, ‘‘the Brecht test affords a habeas petitioner signifi-
cant protection.’’ Id., 24. ‘‘We previously have likened
the substantial prejudice necessary for relief from non-
constitutional error to error that is sufficiently prejudi-
cial to undermine confidence in the fairness of the
verdict. . . . State v. Sawyer, [279 Conn. 331, 353, 904
A.2d 101 (2006), overruled on other grounds by State
v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008)]; see also
(State v. Sawyer) supra, 352–54 (citing cases in which
this court has applied undermine confidence test for
purposes of determining harmfulness of nonconstitu-
tional error). Notably, this is the same showing—char-
acterized as a showing of a reasonable probability of
a different result—required for constitutional claims
alleging ineffective assistance of counsel under Strick-
land v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984), and the suppression of material,
exculpatory evidence under Brady v. Maryland, 373
U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The
United States Court of Appeals for the Second Circuit
has explained that, when Brecht is applied to a trial
error in which the jury is not properly instructed as to
an essential element of the charged crime, the reviewing
court must undertake a careful, de novo review of the
entire record and order a new trial unless the court is
persuaded that a properly instructed, rational jury
would have found the [required element of the crime
proven] beyond a reasonable doubt. Peck v. United
States, 106 F.3d 450, 456–57 (2d Cir. 1997).’’ (Internal
quotation marks omitted.) Banks v. Commissioner of
Correction, supra, 16.
Moreover, ‘‘[a]lthough some courts expressly place the
burden of demonstrating harmlessness under Brecht on
the state, the United States Supreme Court has expressed
the view that it is conceptually clearer simply to place
the onus on the reviewing court to determine whether
an error substantially influenced the jury’s decision.
See O’Neal v. McAninch, 513 U.S. 432, 436, 115 S. Ct.
992, 130 L. Ed. 2d 947 (1995); see id., 436–37. We agree
with the high court, however, that, when the reviewing
court is in equipoise as to the question, the error must
be deemed to have affected the verdict. See id., 435.
For all intents and purposes, then, once a petitioner
has established a Salamon violation, the respondent
bears the burden of demonstrating that the failure to
instruct the jury in accordance with Salamon was harm-
less.’’ (Internal quotation marks omitted.) Banks v.
Commissioner of Correction, supra, 339 Conn. 17.
Second, we held in Banks that, when it is clear that
a perpetrator forcibly moved and restrained his victims
after having taken their property, for the apparent pur-
pose of escaping undetected and unhindered from the
scene of the robbery, a reviewing court typically may
conclude as a matter of law that such conduct bears
independent criminal significance and is not merely
incidental to the underlying robbery.3 See id., 44–45.
Under such circumstances, a habeas court reasonably
may conclude that the failure to instruct a jury in accor-
dance with Salamon was harmless error. See id. Banks
itself was such a case.
B
Although the facts of the present case are, in many
respects, strikingly similar to those of Banks, upon a
careful, de novo review of the entire record, we con-
clude that a few key dissimilarities dictate a different
result. Unlike in Banks, the jury in the present case
reasonably could have found that the petitioner forced
Royer and Smith into the walk-in refrigerators not to
facilitate his postrobbery escape but, rather, to incapac-
itate them while he completed the robberies. The peti-
tioner informed the police that he took the money from
each safe while the victims were restrained in the refrig-
erators. Smith seemed to confirm that account of
events, indicating that the petitioner ordered her into
the refrigerator immediately after she had opened the
safe, and that he stated that he would release her
‘‘ ‘when he was finished,’ ’’ presumably meaning after
he was finished emptying the safe. Although Royer testi-
fied that the petitioner had ordered her into the refriger-
ator after he finished looting the Manchester safe, she
did not directly witness him taking the contents of the
safe, and the jury might well have credited his statement
that, consistent with his modus operandi in the Glaston-
bury robbery, he waited to empty the safe until Royer
was incapacitated so he could do so unobstructed. At
the very least, defense counsel should have had the
opportunity to make such an argument.
We note in this regard that, whereas Banks displayed
an actual firearm during his robberies, the petitioner
appears to have merely positioned a wooden coat
hanger under his jacket to represent that he was bran-
dishing a firearm. If that were the case, then, presum-
ably, he could not have used both hands to empty the
store safes in view of the victims without dispelling the
illusion that he was armed. In that sense, secreting
the victims while he emptied the safes may have been
instrumental to his successful completion of the robber-
ies. Certainly, the jury reasonably could have so found.
If a victim is restrained in the midst of a robbery,
rather than after the victim’s property has been taken,
then it rarely will be possible to say, as a matter of law,
that the restraint bore independent criminal signifi-
cance and was not merely incidental to the completion
of the underlying crime. That determination will hinge
on heavily fact based considerations, such as the dis-
tance of the asportation, the duration and degree of
the restraints, the perpetrator’s apparent motives for
restricting the victim’s movements, and the additional
risks to which the victim was subjected. Under these
circumstances, it also is easier to envision how defense
counsel, if he or she had the benefit of Salamon’s guid-
ance, might have argued the case and examined the
state’s witnesses differently. In the present case, given
the relatively limited nature and scope of the petition-
er’s asportation and restraint of the victims, and the
ambiguity surrounding why he chose to confine his
victims during the robberies, we are not prepared to
say that the omission of a Salamon instruction was
harmless.
The judgment of the Appellate Court is affirmed.
In this opinion ROBINSON, C. J., and KAHN and
VERTEFEUILLE, Js., concurred.
* The listing of justices reflects their seniority status on this court as of
the date of oral argument.
** May 12, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 53a-92 (a) provides in relevant part: ‘‘A person is
guilty of kidnapping in the first degree when he abducts another person
and . . . (2) he restrains the person abducted with intent to . . . (B)
accomplish or advance the commission of a felony . . . .’’
2
Although the petition did not frame the claim in these terms, the habeas
court construed the petition as raising a Salamon claim, and the petitioner
does not contend that that reading of the petition was improper. Bell v.
Commissioner of Correction, supra, 184 Conn. App. 155 n.3.
3
We noted, however, that the failure to submit the question to a properly
instructed jury could constitute reversible error when, for example, the
alleged postrobbery conduct involved no asportation and only minimal
restraint. See Banks v. Commissioner of Correction, supra, 339 Conn.
49–50 n.14.