Banks v. Commissioner of Correction ( 2021 )

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BANKS v. COMMISSIONER OF CORRECTION—FIRST CONCURRENCE
D’AURIA, J., with whom McDONALD, J., joins, con-
curring. Because I agree with the majority that, in the
present case, the lack of a jury instruction pursuant to
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008),
was harmless, I concur in the result. I do not agree,
however, with the standard that the majority adopts
for determining whether any error was harmless under
these circumstances. The majority determines that,
when a petitioner seeking habeas relief establishes a
Salamon error, the habeas court must assess the harm
of that error according to the legal standard that the
United States Supreme Court articulated in Brecht v.
Abrahamson, 507 U.S. 619, 623, 113 S. Ct. 1710, 123 L.
Ed. 2d 353 (1993) (new trial mandated if instructional
error ‘‘had [a] substantial and injurious effect or influ-
ence in determining the jury’s verdict’’ (internal quota-
tion marks omitted)), rather than the more petitioner
friendly standard adopted in Neder v. United States,
527 U.S. 1, 18, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)
(new trial required if it is ‘‘clear beyond a reasonable
doubt that a rational jury would have found the defen-
dant guilty absent the [instructional] error’’). I disagree
with the majority opinion for two reasons. First,
because the petitioner, Mark Banks, cannot prevail
under either standard, I do not believe that this court
needs to—or should—decide which standard applies,
especially as it is unclear how many, if any, future cases
this standard will apply to. Second, I believe that Neder
is the proper standard. Accordingly, I respectfully
concur.
I
In Hinds v. Commissioner of Correction, 321 Conn.
56, 136 A.3d 596 (2016), we concluded that, because
the petitioner would prevail under either the Brecht or
Neder standards for determining the harmlessness of
a Salamon violation on collateral review, we did not
need to ‘‘enter the fray’’ and decide whether to adopt
the more state friendly Brecht standard ‘‘and the uncer-
tainties that accompany it.’’ Id., 83. In the present case,
I agree with the majority that the petitioner would not
prevail under either standard,1 and, in my view, the
majority’s decision to apply the Brecht standard is dic-
tum. I therefore do not believe that this late in the day
for Salamon claims there is any greater justification to
‘‘enter the fray’’ than there was five years ago in Hinds.
In fact, I believe there is less.
It has been more than one decade since this court
released its decision in Salamon and then held that the
new rule in Salamon applies retroactively to collateral
attacks on final judgments in Luurtsema v. Commis-
sioner of Correction, 299 Conn. 740, 769, 12 A.3d 817(2011) (plurality opinion). In Luurtsema,2 in holding
that Salamon would apply retroactively to those liti-
gants whose direct appeals already had been decided
at the time of Salamon, we explained that, ‘‘[o]f the 1.5
percent of . . . inmates incarcerated for kidnapping or
unlawful restraint, one can reasonably assume that only
a small subset will fall within the ambit of Salamon.’’
Id. Although the parties have not provided any data in
the present case on the number of potential Salamon
claims that remain for cases that already have become
final, there is a real possibility that the new standard
that the majority adopts might never be applied to
another case.3 I am not suggesting that, when this
court’s holding likely will not affect many cases, we
should not resolve the issue. Rather, I believe that, when
addressing the issue is not necessary to resolve the
case, we should refrain from altering the applicable
standard at the eleventh hour. Thus, as we are not
required to decide this issue to adjudicate the petition-
er’s claims in the present case or the claims asserted
in the companion case, Bell v. Commissioner of Correc-
tion, 339 Conn. 79, A.3d (2021), also decided
today, I do not believe we should.
II
The majority having determined to reach the issue,
I also disagree with its resolution of the issue. The
majority properly notes that only twice have we had
occasion to apply Salamon in the habeas context and
contends that, in these two cases, we did not envision
that such claims would be evaluated under the more
petitioner friendly Neder standard. I disagree. I believe
this court’s retroactive application of the Salamon rule
to both pending and final cases has strongly suggested
that the Neder standard applies to all Salamon viola-
tions. Certainly, that has been the understanding of our
Appellate Court, our habeas courts, and the respondent,
the Commissioner of Correction. Further, unlike the
majority, I also find there to be countervailing policy
concerns that militate in favor of continuing to apply
the Neder standard for claims such as those of the peti-
tioner.
A
In Salamon, this court overruled our long-standing
interpretation of this state’s kidnapping statutes and
held that, when a criminal defendant is charged with
kidnapping in conjunction with another underlying
crime, such as rape or assault, the trial court must
instruct the jury that it cannot find the defendant guilty
of kidnapping if the restraint imposed on the victim
was merely incidental to that underlying crime. State
v. Salamon, supra, 287 Conn. 550. In so holding, we
relied heavily on ‘‘the common law of kidnapping, the
history and circumstances surrounding the promulga-
tion of our current kidnapping statutes and the policy
objectives animating those statutes . . . .’’ Id., 542. A
prominent concern at the time of the enactment of our
current kidnapping statutes was prosecutorial over-
charging: ‘‘Beginning in the 1950s . . . questions sur-
faced about the propriety of [our] expansively worded
kidnapping statutes. In particular, concerns were
expressed that the newly adopted kidnapping statutes
permitted the imposition of extremely severe sanctions
for a broad and ill defined range of behavior, including
relatively trivial types of restraint. . . . [E]xamples of
abusive prosecution for kidnapping [were] common,
[so the legislature sought] to restrict the scope of kid-
napping, as an alternative or cumulative treatment of
behavior whose chief significance is robbery or rape,
because the broad scope of this overlapping offense
has given rise to serious injustice . . . .’’ (Citations
omitted; internal quotation marks omitted.) Id., 538–39.
We noted in Salamon that, in drafting our current kid-
napping statute, the legislature ‘‘intended to create a
new statutory scheme that recognized varying degrees
of unlawful restrictions on a victim’s liberty by drawing
a distinction between a ‘restraint,’ which, standing
alone, comprises the crime of unlawful restraint, and an
‘abduction,’ which comprises the crime of kidnapping,’’
thereby intending ‘‘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.’’
Id., 541–42. Nevertheless, in interpreting our kidnapping
statutes prior to Salamon, this court failed to recognize
this exclusion. Id., 543. ‘‘Unfortunately, that interpreta-
tion has afforded prosecutors virtually unbridled discre-
tion to charge the same conduct either as a kidnapping
or as an unlawful restraint despite the significant differ-
ences in the penalties that attach to those offenses.
Similarly, our prior construction of the kidnapping stat-
utes has permitted prosecutors—indeed, it has encour-
aged them—to include a kidnapping charge in any case
involving a sexual assault or robbery.’’ Id., 543–44.
Subsequently, but with limited analysis, this court in
State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156(2008) (overruled in part on other grounds by State v.
DeJesus, 288 Conn. 418, 953 A.2d 45 (2008)),4 super-
seded in part after reconsideration en banc, 291 Conn.
574, 969 A.2d 710 (2009), applied the new rule in Sala-
mon retroactively to direct appeals pending at the time
Salamon was decided. State v. Sanseverino, supra, 287
Conn. 620 n.11. Not until approximately three years
after Salamon did this court address its applicability
to collateral attacks on final judgments, although we did
not have to address the proper standard for evaluating
harm because the retroactivity issue came to this court
by way of reserved question.
In Luurtsema v. Commissioner of Correction, supra,299 Conn. 740, we agreed with the petitioner that, ‘‘as
a matter of state common law, Salamon should be
afforded fully retroactive effect,’’ including as to collat-
eral attacks on final judgments by way of habeas peti-
tions. Id., 751 (plurality opinion). We explained that,
‘‘[a]s a matter of federal constitutional law, each juris-
diction is free to decide whether, and under what cir-
cumstances, it will afford habeas petitioners the
retroactive benefit of new judicial interpretations of the
substantive criminal law issued after their convictions
became final.’’ Id., 754 (plurality opinion). We recog-
nized that, ‘‘in the federal system, the United States
Supreme Court has adopted a per se rule that, when
federal courts reinterpret congressional legislation, new
interpretations of substantive criminal statutes must be
applied retroactively on collateral review.’’ Id., 754–55
(plurality opinion).
Our own determination of retroactivity in Luurtsema
focused on the purpose of habeas relief: ‘‘The principal
purpose of the writ of habeas corpus is to serve as a
bulwark against convictions that violate fundamental
fairness. . . . To mount a successful collateral attack
on his conviction, a prisoner must demonstrate . . . a
fundamental unfairness or miscarriage of justice
. . . .’’ (Internal quotation marks omitted.) Id., 758 (plu-
rality opinion). We reasoned that, ‘‘regardless of
whether one reads Salamon to be a change or clarifica-
tion of the law, the court in Salamon saw itself as
discerning the original legislative meaning of [General
Statutes] § 53a-92 (a) (2) (A). . . . If the legislature
never intended an assault to constitute kidnapping,
without evidence of the perpetrator’s independent
intent to restrain the victim, then the petitioner . . .
stands convicted of a crime that he arguably did not
commit. This conclusion raises serious due process
concerns. It is well settled that due process requires
the state to prove every element of the offense charged
beyond a reasonable doubt. . . . Under our system of
justice, considerations of finality simply cannot justify
the continued incarceration of someone who did not
commit the crime of which he stands convicted.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id.,
758–59 (plurality opinion). Thus, although we declined
the petitioner’s invitation to adopt a per se rule in favor
of full retroactivity, we concluded that, ‘‘when an appel-
late court provides a new interpretation of a substantive
criminal statute, an inmate convicted under a prior,
more expansive reading of the statute presumptively
will be entitled to the benefit of the new interpretation
on collateral attack.’’ Id., 760 (plurality opinion).
This court in Luurtsema proceeded at some length
to reject the ‘‘five rationales either for adopting a per
se rule against retroactive relief or for denying relief
in [that] case: (1) the fact that law enforcement relied
on the old interpretation of the kidnapping statutes
while trying the petitioner; (2) the fact that the retroac-
tive application of Salamon has no deterrent value or
remedial purpose; (3) the fear that our courts will be
‘flooded’ with habeas petitions from other inmates con-
victed [of kidnapping]; (4) the difficulty of retrying such
cases where significant time has elapsed since convic-
tion; and, perhaps most importantly (5) the concern
that victims will be retraumatized by again having to
testify and endure another round of judicial proceed-
ings.’’ Id., 765 (plurality opinion). In response to these
arguments, we explained that ‘‘many of the concerns
raised by the state in the habeas context apply with
equal force to direct appeals, in which it is undisputed
that appellants receive the benefit of retroactive appli-
cation of judicial decisions that narrow the scope of
liability under a criminal statute.’’ Id., 766 (plurality
opinion).5 Unlike the majority, I believe that this court’s
rejection of the state’s arguments in Luurtsema sup-
ports the Neder standard, not the Brecht standard.
First, although the Neder standard was not at issue
in Luurtsema, we signaled that it applies on collateral
review. It is not so, as the majority suggests, that ‘‘we
did not envision that such claims would be evaluated
under the stringent Neder standard’’ because ‘‘we
thought that many Salamon cases could be disposed
of summarily on the ground of harmless error . . . .’’
In Luurtsema, we emphasized that the state’s concerns
over applying Salamon retroactively to cases on collat-
eral review applied equally to our earlier determination
to apply Salamon retroactively to cases pending on
direct appeal when we decided Sanseverino. See Luurt-
sema v. Commissioner of Correction, supra, 299 Conn.
769–70 (plurality opinion). We went on to indicate that
error arising from the lack of a Salamon instruction in
cases brought before the court on collateral review
would be reviewed for harm; see id. (plurality opinion);
citing to State v. Hampton, 293 Conn. 435, 463–64, 978
A.2d 1089 (2009), which had applied the Neder harmless
error standard.
Subsequently, in Hinds v. Commissioner of Correc-
tion, supra, 321 Conn. 56, this court conceded that, by
including this citation to Hampton, we had ‘‘indicated
that the proper standard to make such an assessment
would be the harmless error standard applied on direct
appeal,’’ i.e., Neder. See id., 77. Thus, to the extent that
this court in Luurtsema ‘‘strongly suggested’’ anything
about the proper harmless error standard to apply on
collateral review, it has strongly suggested the Neder
standard.
In Hinds, this court was asked to address how the
retroactivity of Salamon on collateral review interacted
with our procedural default rule.6 Id., 60. We concluded
that ‘‘[the] retroactivity decision [in Luurtsema v. Com-
missioner of Correction, supra, 299 Conn. 740] compels
the conclusion that challenges to kidnapping instruc-
tions in criminal proceedings rendered final before
Salamon are not subject to the procedural default rule.’’
Hinds v. Commissioner of Correction, supra, 321 Conn.
61. In reaching this conclusion, this court examined
its reasoning in Luurtsema for applying the rule in
Salamon retroactively and determined that this reason-
ing was inconsistent with the procedural default rule:
‘‘[A]pplication of the procedural default bar to protect
finality of judgments seems inconsistent with the rea-
soning in [Luurtsema] that the interests of finality must
give way to the demands of liberty and a proper respect
for the intent of the legislative branch.’’ (Internal quota-
tion marks omitted.) Id., 73.
Particularly significant to the issue at hand, we specif-
ically noted in Hinds that, in Luurtsema, we did not
apply any heightened standard, such as the procedural
default doctrine’s heightened prejudice standard, to
keep any floodgates from swinging open.7 Id., 74–76.
Rather, we recognized that, in Luurtsema, we cited the
Neder harmless error standard for direct appeal. See
id., 75. Thus, this court already has rejected the applica-
tion of a heightened prejudice standard to Salamon
claims on collateral review. In Hinds, this court then
went on to discuss the applicable standard for determin-
ing harm. Again, we recognized that, ‘‘[i]n [Luurtsema],
the court indicated that the proper standard to make
such an assessment would be the harmless error stan-
dard applied on direct appeal [by citing to Hampton].’’
(Emphasis added.) Id., 77.
Only after deciding that ‘‘the petitioner [in Hinds was]
entitled to relief under our established harmless error
standard’’; id., 81; did we ‘‘note that this court has not
had the occasion to consider whether, even in the
absence of procedural default, a more stringent stan-
dard of harm should apply in collateral proceedings,’’
such as the Brecht standard.8 Id. Nevertheless, because
the dissenting justices’ conclusion in Hinds that the
petitioner was ‘‘not entitled to a new trial due to his
failure to establish the actual prejudice to overcome
a procedurally defaulted claim appear[ed] to signal a
retreat from our holdings in Salamon and [Luurtsema],
we . . . explain[ed] why the petitioner [in Hinds]
would prevail even under the more stringent standard’’
the dissenting justices applied. Id., 83.
Although we decided Luurtsema on a reservation for
advice and a stipulation of facts, and our language in
Hinds regarding Brecht might arguably be considered
dictum,9 we noted in Hinds that Neder was ‘‘the stan-
dard that was applied by the habeas court in [that] case
and ha[d] been applied in several other cases. See, e.g.,
Eric M. v. Commissioner of Correction, 153 Conn. App.
837, 845, 108 A.3d 1128 (2014), cert. denied, 315 Conn.
915, 106 A.3d 308 (2015); St. John v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-11-
4003987-S (March 7, 2013); see also Epps v. Commis-
sioner of Correction, 153 Conn. App. 729, 738, 740,
104 A.3d 760 (2014) (determining that petitioner must
overcome procedural default but applying direct appeal
harmless error standard in prejudice analysis); Nogueira
v. Warden, Superior Court, judicial district of Tolland,
Docket No. CV-XX-XXXXXXX-S (June 10, 2015) (same);
Smith v. Warden, Superior Court, judicial district of
Tolland, Docket No. CV-XX-XXXXXXX-S (September 13,
2011) (same).’’ Hinds v. Commissioner of Correction,
supra, 321 Conn. 77. Hinds does not indicate that a
contrary standard might apply. Although limited, this
court’s prior case law applying the rule in Salamon
retroactively on collateral review suggests that the
Neder standard is the proper standard for determining
harm, although the parties did not explicitly raise, and
this court did not explicitly address, this issue.
The majority’s contention that our prior case law
‘‘strongly suggests’’ the adoption of the Brecht standard
is belied by the plain language of these cases and sug-
gests that these cases have been misunderstood by both
our habeas courts and the Appellate Court, which, con-
sistent with the signals this court gave in Hinds, have
uniformly applied the Neder standard to Salamon viola-
tions raised in a collateral proceeding. See Palmer v.
Commissioner of Correction, 202 Conn. App. 902, 242
A.3d 1084 (2021) (per curiam affirmance of judgment
of habeas court, which applied Neder harmless error
standard to Salamon claim); John B. v. Commissioner
of Correction, 194 Conn. App. 767, 774, 222 A.3d 984(2019) (applying Neder harmless error standard to Sala-
mon claim raised in habeas appeal, citing to Hinds as
support), cert. denied, 334 Conn. 919, 222 A.3d 513(2020); Britton v. Commissioner of Correction, 185
Conn. App. 388, 400, 197 A.3d 895 (2018) (same), peti-
tion for cert. filed (Conn. November 26, 2018) (No.
180266); Pereira v. Commissioner of Correction, 176
Conn. App. 762, 768, 171 A.3d 105 (same), cert. denied,
327 Conn. 984, 175 A.3d 43 (2017); White v. Commis-
sioner of Correction, 170 Conn. App. 415, 427, 154 A.3d
1054 (2017) (same); Nogueira v. Commissioner of Cor-
rection, 168 Conn. App. 803, 814, 149 A.3d 983 (same),
cert. denied, 323 Conn. 949, 169 A.3d 792 (2016); Farmer
v. Commissioner of Correction, 165 Conn. App. 455,
460, 139 A.3d 767 (same), cert. denied, 323 Conn. 905,
150 A.3d 685 (2016); Coltherst v. Commissioner of Cor-
rection, Docket No. CV-XX-XXXXXXX-S, 2019 WL 7425147,
*10–12 (Conn. Super. November 19, 2019) (applying
Neder standard and finding lack of Salamon instruction
harmless). I do not mean to suggest that this court
should not correct errors by lower courts or not clarify
ambiguous case law. But I do not believe that this is
what the majority is doing in its analysis. Rather, the
majority has decided for policy reasons to reverse
course and to adopt a standard inconsistent with our
prior case law.
In fact, even as late as 2014, in Epps v. Commissioner
of Correction, 153 Conn. App. 729, 738, 740, 104 A.3d
760 (2014), appeal dismissed, 327 Conn. 482, 175 A.3d
558 (2018), the respondent was arguing in habeas cases
involving the failure to give a Salamon instruction that
the Neder standard for harmless error applied, a stan-
dard he did not prevail on in the Appellate Court in
Epps. Only before this court in Epps did the respondent
begin to argue that the Brecht standard should govern.10
Since the Appellate Court decided Epps, the respondent
has relied on the Neder standard in multiple cases
before the Appellate Court in which a Salamon violation
was raised, not even mentioning Brecht in appellate
briefs. See, e.g., Nogueira v. Commissioner of Correc-
tion, supra, 168 Conn. App. 814; Farmer v. Commis-
sioner of Correction, supra, 165 Conn. App. 460. From
my research, it appears that the first habeas case in
which the respondent challenged the Neder standard
before the Appellate Court was White v. Commissioner
of Correction, supra, 170 Conn. App. 427, which was
not decided until 2017. Thus, not only the courts, but
also the respondent has interpreted Hinds as applying,
if not adopting, the Neder standard, which is reasonable
given our analysis in that case.
B
Having made clear in Luurtsema that the retroactiv-
ity of new judicial interpretations of substantive crimi-
nal law on collateral review is a ‘‘matter of state
common law,’’ and that we are not bound by federal
law, the determination of the appropriate standard to
apply for analyzing harm is likewise a matter of state
common law and a policy question for this court to
determine. I do not read the majority opinion to suggest
otherwise. See, e.g., Schilberg Integrated Metals Corp.
v. Continental Casualty Co., 263 Conn. 245, 255, 819
A.2d 773 (2003) (determination of proper burden of
proof based on certain policy considerations); Albert
Mendel & Son, Inc. v. Krogh, 4 Conn. App. 117, 124, 492
A.2d 536 (1985) (‘‘The proper allocation of the burden
of proof may be distilled to a question of policy and
fairness based on experience in different situations.
. . . A number of variables are considered in determin-
ing where the burden properly lies. One consideration
is which party has readier access to knowledge about
the fact in question.’’ (Citations omitted; footnote omit-
ted.)). I would come to a different policy determination
than the majority does.
Brecht concerned a federal court’s collateral review
of a state court criminal judgment pursuant to 28 U.S.C.
§ 2254. See Brecht v. Abrahamson, supra, 507 U.S. 626.
The court in Brecht and in later cases emphasized that
the choice to apply a more government friendly harm-
lessness standard was driven in large part by concerns
unique to federal habeas review of state court judg-
ments—namely, that the application of a petitioner
friendly standard as in Neder would (1) invade state
sovereignty over criminal matters (i.e., federalism and
comity), (2) undercut the historic limitation of habeas
relief to those ‘‘ ‘grievously wronged,’ ’’ (3) infringe on
a state’s interest in finality, and (4) impose significant
societal costs. Id., 633–38; see also Fry v. Pliler, 551
U.S. 112, 117, 127 S. Ct. 2321, 168 L. Ed. 2d 16 (2007).
Notwithstanding significant differences between fed-
eral habeas review of state criminal judgments and the
situation we confront upon a finding of a Salamon
violation, the majority’s own rationale in opting for the
Brecht standard is still driven by these policies in signifi-
cant part. This is where I disagree most pointedly with
the court’s opinion.
First,11 unlike the majority, I see no need for this
standard to be ‘‘consistent with how we handle other
claims of error in habeas actions.’’ A Salamon violation
is unlike many other claims of error in habeas actions:
it is a determination that the state, in prosecuting a
defendant, was unconstitutionally relieved of proving
an essential element of the crime of kidnapping. In both
Salamon and Luurtsema, this court indicated that a
reinterpretation of the language of our kidnapping stat-
ute was long overdue and that the legislature never
intended to criminalize conduct that this court had erro-
neously interpreted the statute to capture, i.e., a
restraint of a victim merely incidental to the commis-
sion of a separate crime. For nearly one-half century,
interpreting the statute broadly had led to prosecutors
overcharging and juries finding defendants guilty on
allegations the legislature never intended to punish.
A Salamon claim is traditionally the kind of claim
that should have been raised on direct appeal and is
not permitted to be raised in a habeas action unless
the petitioner can satisfy the procedural default rule.
See Jackson v. Commissioner of Correction, 227 Conn.
124, 131–32, 629 A.2d 413 (1993). Similar claims about
the proper interpretation of our kidnapping statutes
had been made and rejected several times in the thirty
years preceding Salamon. See State v. Salamon, supra,287 Conn. 531 (‘‘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. (Internal
quotation marks omitted.) State v. Pelletier, 209 Conn.
564, 567, 552 A.2d 805 (1989). Until one day, this
court agreed.
For reasons of fairness, as discussed previously, this
court in Luurtsema and Hinds held that Salamon
claims raised for the first time in a habeas action are
unique—the byproduct of the retroactivity exception
to the general rule against these kinds of claims being
raised on collateral review, along with the procedural
default rule being forgiven. For this reason, I do not
see why there is any need for us to apply a standard
consistent with that employed in other habeas cases.
Rather, if this court is trying to create consistency, the
same standard should be used for Salamon claims both
on direct review and collateral review, as there is no real
distinction between the claims other than the temporal
relation of the case to our decision in Salamon, which
is merely a matter of good or bad fortune.
Further, this court, our Appellate Court, and habeas
courts consistently have applied the Neder standard
to Salamon claims on collateral review. See Hinds v.
Commissioner of Correction, supra, 321 Conn. 77; see
also id. (citing cases). So, not only would the petitioner
in this case be afforded less protection than defendants
whose cases were pending or were initiated after Sala-
mon, but he will be afforded less protection than other
habeas petitioners who have raised Salamon claims
on collateral review in the years since Luurtsema and
Hinds but prior to our decision in the present case. I
am not suggesting that these lower court cases bind
our analysis. I am suggesting that these cases demon-
strate the unfairness of adopting the Brecht standard
at this late date, a clearly appropriate policy consider-
ation in determining whether this court should alter the
applicable standard.
The majority defends this arbitrariness by rationaliz-
ing that ‘‘the somewhat scattershot nature of harmless
error jurisprudence, with standards varying by the type
of error at issue, the stage of review, and the jurisdiction
in which the claim is reviewed, means that whichever
standard we apply to Salamon errors in state habeas
cases may appear to be unfair or incongruous from one
vantage or another.’’ Choosing the Brecht standard over
the Neder standard seems to me to be little more than
an attempt to counterbalance this court’s determination
to apply Salamon retroactively to collateral challenges
and to forgive the procedural default rule by giving the
respondent a break on the harmlessness standard. The
majority reasons: ‘‘It certainly will not seem unjust from
the respondent’s standpoint to require a showing that
there is some reasonable likelihood that the failure to
give the jury a Salamon instruction had a substantial
and injurious effect or influence on the outcome before
requiring the state to retry the petitioner for crimes that
were committed more than twenty-five years ago.’’
In my view, this reasoning misses the mark and loos-
ens Luurtsema and Hinds from their jurisprudential
moorings. The twenty-five years since the date of the
petitioner’s trial should of course play no role in this
analysis but merely provide color. To the extent that
the majority’s rationale reflects a concern about finality,
this court has already indicated that that interest ‘‘must
give way to the demands of liberty and a proper respect
for the intent of the legislative branch.’’ (Internal quota-
tion marks omitted.) Hinds v. Commissioner of Correc-
tion, supra, 321 Conn. 73; see also Luurtsema v.
Commissioner of Correction, supra, 299 Conn. 759 (plu-
rality opinion) (‘‘considerations of finality simply can-
not justify the continued incarceration of someone who
did not commit the crime of which he stands con-
victed’’). It is not the petitioner’s fault that this court
awakened late to the fact that the legislature never
intended for the present language of our kidnapping
statute to extend as broadly as it had been construed,
more than one decade after his criminal trial and eight
years after his direct appeal became final. Although the
majority is correct that it is not the state’s fault, either,
that this court reinterpreted our kidnapping statutes
when it did, the state surely benefited more from a
jurisprudential regime that relieved it of having to prove
an essential element than did those defendants accused
of the kidnappings.12
In holding that Salamon applies retroactively to cases
that are already final, this court recognized that older
cases may need to be retried, accepting this as a neces-
sary consequence of correcting injustices that had
occurred as a result of prosecutorial overcharging and
this court’s failure to construe our statutes properly so
as to curb that practice. See Luurtsema v. Commis-
sioner of Correction, supra, 299 Conn. 766–67, 772–73
(plurality opinion). The fact that the state must now
deal with these consequences should not come at the
expense of the petitioner, especially when limiting the
petitioner’s protection out of fairness to the state would
contradict the purpose of our holdings in Luurtsema
and Hinds. Moreover, this consequence is not unique
to collateral review, as this court noted in Luurtsema
when it recognized that cases pending on direct appeal
at the time of Salamon might also require retrial years
after the initial criminal trial. Id., 766–67 (plurality
opinion).
There is perhaps no better way to summarize my
concerns regarding the fairness of the court’s rationale
in the present case than that of the sage author of
the majority opinion (whose collegiality and guidance
I already miss): ‘‘[T]o apply Brecht in the present case
would be unfair to the petitioner and to others similarly
situated. That this court opted to revisit and revise our
interpretation of the state’s kidnapping laws following
his conviction is no more the fault of the petitioner
than of the state. Although would-be offenders were on
notice in 1995 that they could be charged with kidnap-
ping solely on the basis of the restraint inherent in
robberies or assaults, they, like the state, did not have
any reason to try their cases with the Salamon distinc-
tion in mind. Moreover, it may seem discrepant to assess
the impact of the instructional error according to the
more forgiving Brecht standard when, if we had decided
Salamon one decade earlier, while the petitioner’s
direct appeal was pending, the state would have borne
the burden of proving that the error was harmless
beyond a reasonable doubt.’’
III
Which brings me back to my original point: Why are
we deciding this issue at this late date? By declining to
‘‘enter the fray’’ and answer this question; Hinds v.
Commissioner of Correction, supra, 321 Conn. 83; we
would not, in my view, be ‘‘shrink[ing] from our duty’’
any more than this court already has to date in declining
to answer this unique question in Hinds. Footnote 6 of
the majority opinion. This court, the Appellate Court,
and habeas courts, consistent with the signals this court
gave in Hinds, have been applying the Neder standard
to Salamon claims raised on collateral review, and both
petitioners and the respondent have managed to prevail
under that standard. The parties have provided us with
no data regarding how many potential cases remain to
which the Brecht standard would apply, especially as
it appears that some cases have been resolved by agree-
ment. See footnote 3 of this opinion. The number cannot
be infinite. Most evidence points to the fact that it is
likely a very small number, and obviously shrinking. It
is of course true that a lower court cannot bind this
court and that courts of last resort, such as the United
States Supreme Court, may allow issues to ‘‘percolate’’
before deciding them. But it must be rare for a court
to allow an issue to percolate to the point of virtual
extinction and to decide it only after giving strong sig-
nals as to the correct outcome, and after the lower
courts have uniformly decided the issue that way.
Given that the outcome of this appeal would be the
same regardless of the standard applied, and that the
majority’s holding will possibly have little to no effect
going forward, I believe it is imprudent to address and
decide this issue. In my view, if there are in fact any
cases left in this shrinking universe to which today’s
announcement will apply, it is unfortunate that the
court is now changing its mind about the standard that
will govern harmlessness. It is also ironic given that
the fallout from Salamon itself has concerned the appli-
cation of retroactivity rules fairly to a change of this
court’s mind.
Policy considerations support this view. The peti-
tioner in the present case and any petitioners going
forward, assuming there are any, will receive less pro-
tection than those who happened to have their habeas
petitions decided before today’s decision. This appears
to be a matter of pure chance and perpetuates the
unfairness that Salamon and its progeny have
attempted to correct. Every petitioner to have brought
a collateral Salamon challenge has had appointed coun-
sel. We have no understanding about how the public
defender’s office prioritizes inmate cases or whether
and to what extent inmates might understand that they
had a Salamon claim. Finally, I am concerned that, by
needlessly ‘‘enter[ing] the fray’’; Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 83; regarding
which standard to apply, this court might not realize
how its decision to adopt the Brecht standard in the
context of a Salamon claim might have possible ramifi-
cations in contexts we have yet to anticipate.
Accordingly, I respectfully concur.
1
I agree fully with then Judge Keller’s well reasoned dissenting opinion in
the Appellate Court that the absence of a Salamon instruction was harmless
beyond a reasonable doubt under the Neder standard. Banks v. Commis-
sioner of Correction, 184 Conn. App. 101, 132–33, 194 A.3d 780 (2018) (Keller,
J., dissenting). The majority likewise agrees with Judge Keller that ‘‘the
petitioner could not prevail on his claim even, if we agreed with him that
the respondent [the Commissioner of Correction] was required to establish
harmlessness beyond a reasonable doubt.’’ Footnote 16 of the majority
opinion.
2
I note that Luurtsema was a plurality decision. Nevertheless, the plurali-
ty’s analysis in that case belies the majority’s contention that this case
supports the adoption of the Brecht standard. Additionally, the court in
Hinds, which was a majority decision, relied heavily on Luurtsema, treating
it as controlling law, and, thus, I do the same. See Hinds v. Commissioner
of Correction, supra, 321 Conn. 61 (‘‘we conclude that [the] retroactivity
decision [in Luurtsema v. Commissioner of Correction, supra, 299 Conn.
740] compels the conclusion that challenges to kidnapping instructions in
criminal proceedings rendered final before Salamon are not subject to the
procedural default rule’’ (emphasis added)).
3
In Epps v. Commissioner of Correction, 327 Conn. 482, 175 A.3d 558(2018), the petitioner’s counsel represented in the petitioner’s brief: ‘‘There
are no records of cases by type of claim kept by the court or public defender,
but a repeated canvass of appointed counsel turned up only three cases
with potential to present Luurtsema-Salamon issues for decision by the
habeas court. Counsel also have resolved by agreement a number of Salamon
habeas cases without necessitating trial of the case.’’ Epps v. Commissioner
of Correction, Conn. Supreme Court Briefs & Appendices, November Term,
2017, Petitioner’s Brief p. 25 n.23. Counsel for the respondent, the Commis-
sioner of Correction, in Epps did not contradict this representation. Our
own databases show no present cases pending in our court or the Appellate
Court other than Britton v. Commissioner of Correction, 185 Conn. App.
388, 197 A.3d 895 (2018) (Salamon violation was harmless beyond reasonable
doubt under Neder), petition for cert. filed (Conn. November 26, 2018) (No.
180266). The parties have provided this court with no data regarding how
many cases our decision in this case will affect. With perhaps the exception
of Britton, the present case and the companion case, Bell v. Commissioner
of Correction, 339 Conn. 79, A.3d (2021), which we also decided
today, might very well be the only cases in which this new standard will
be applied. Moreover, as I discuss in greater detail in part II of this opinion,
both the Appellate Court and habeas courts consistently have relied on
Luurtsema and Hinds as holding that the Neder standard is the proper
standard, thereby not only belying the majority’s contention that these cases
‘‘strongly [suggest]’’ that the Brecht standard is more appropriate, but also
showing that all but a very few remaining Salamon claims raised on collateral
review will be subject to the Brecht standard.
4
In DeJesus, this court overruled Sanseverino to the extent that Sansever-
ino held that a judgment of acquittal, rather than a new trial, could serve
as a proper remedy for a Salamon violation.
5
We pointed out in Luurtsema that State v. Sanseverino, supra, 287 Conn.
620 n.11, provided an instructive case in point: ‘‘The crimes charged in
[Sanseverino] commenced in June or July of 1998 . . . a mere two to three
months after the incident for which the petitioner in [Luurtsema] was
convicted. Whereas the petitioner’s conviction became final in 2003, how-
ever, Sanseverino was still under review when we decided Salamon in 2008.
Any concerns regarding prosecutorial reliance and the burdens associated
with retrying a ten year old crime apply to Sanseverino no less than to
[Luurtsema].’’ (Citation omitted.) Luurtsema v. Commissioner of Correc-
tion, supra, 299 Conn. 766–67 (plurality opinion).
Also, more specifically as to the respondent’s third rationale regarding
the opening of the floodgates, this court acknowledged that ‘‘[t]here is little
doubt that some petitioners will come forward contending that they are
serving substantially longer sentences than are prescribed by the [Penal]
[C]ode, as properly construed. In [his] brief, however, the [respondent] has
identified only five such petitions that have been filed in the more than two
years since we decided Salamon and Sanseverino. At oral argument before
this court, the [respondent] declined to provide additional information as
to the number of present inmates who might have a colorable claim under
Salamon. Of the 1.5 percent of . . . inmates incarcerated for kidnapping
or unlawful restraint, one can reasonably assume that only a small subset
will fall within the ambit of Salamon. Of those, we expect that courts will
be able to dispose summarily of many cases where it is sufficiently clear from
the evidence presented at trial that the petitioner was guilty of kidnapping,
as properly defined, that any error arising from a failure to instruct the jury
in accordance with the rule in Salamon was harmless. See, e.g., State v.
Hampton, 293 Conn. 435, 463–64, 978 A.2d 1089 (2009). Likewise, we doubt
the [respondent] will expend the resources to retry cases [when] it is reason-
ably clear that a petitioner could not have been convicted of kidnapping
under the correct interpretation of the statute.’’ (Footnote omitted.) Luurt-
sema v. Commissioner of Correction, supra, 299 Conn. 769–70 (plurality
opinion).
6
‘‘[W]e have adopted the procedural default standard prescribed in Wain-
wright v. Sykes, [433 U.S. 72, 87, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)].
. . . Under this standard, the petitioner must demonstrate good cause for
his failure to raise a claim at trial or on direct appeal and actual prejudice
resulting from the impropriety claimed in the habeas petition. . . . [T]he
cause and prejudice test is designed to prevent full review of issues in
habeas corpus proceedings that counsel did not raise at trial or on appeal
for reasons of tactics, inadvertence or ignorance . . . .’’ (Citations omitted;
internal quotation marks omitted.) Hinds v. Commissioner of Correction,
supra, 321 Conn. 71.
7
Specifically, in reaching our conclusion in Hinds, we explained: ‘‘Other
aspects of the court’s reasoning [in Luurtsema also] bolster our conclusion
that this holding was not intended to afford relief to only those petitioners
who could avoid or overcome the procedural default bar. The court in
[Luurtsema] extensively considered limitations on its retroactivity ruling,
but did not cite procedural default as such a limitation. Availability of that
doctrine and its heightened prejudice standard would have been a natural
response to the [respondent’s] floodgates argument had the court intended
the doctrine to apply. Instead, the court responded [by explaining that] . . .
one can reasonably assume that only a small subset will fall within the
ambit of Salamon. . . . One particular aspect of this response is telling.
The court cited the harmless error standard for direct appeal—a standard
wholly inconsistent with the actual prejudice standard for procedurally
defaulted claims—as the limiting mechanism for colorable but ultimately
nonmeritorious claims.’’ (Citations omitted; footnotes omitted; internal quo-
tation marks omitted.) Hinds v. Commissioner of Correction, supra, 321
Conn. 74–75.
8
‘‘In Brecht v. Abrahamson, supra, 507 U.S. 623, a bare majority of the
United States Supreme Court departed from its history of more than 200
years of parity between direct appeals and habeas corpus proceedings for
constitutional claims. . . . Citing federalism, comity, finality and other pru-
dential considerations, the court determined that habeas proceedings require
a standard that imposes a less stringent burden on the state when the
constitutional error is not structural. . . . Brecht and its progeny have raised
numerous questions as to the precise standard to be applied in determining
whether a particular type of error is harmless, and what degree of certainty
as to whether that standard has been met.’’ (Citations omitted.) Hinds v.
Commissioner of Correction, supra, 321 Conn. 81–82.
9
It is at best arguable that Hinds’ use of the Neder standard was dictum.
In fact, because nothing in the majority’s opinion in Hinds suggests that
Brecht is the proper standard, and because the majority in Hinds explained
that it analyzed the petitioner’s claim in that case under the Brecht standard
only to respond to the arguments of the dissenting justices, it is more
accurate to say that any discussion of the Brecht standard was dictum.
10
After this court released its decision in Hinds, in Epps v. Commissioner
of Correction, 327 Conn. 482, 175 A.3d 558 (2018), we permitted the respon-
dent, whose petition for certification to appeal was pending at the time, ‘‘to
file an amended petition for certification. Over the petitioner’s objection,
this court granted the respondent’s amended petition, which raised the
question ‘left unresolved’ by Hinds regarding the proper measurement of
harm in collateral proceedings like the . . . one [in Epps] and the question
of whether, irrespective of which standard applied, harm had been estab-
lished in the petitioner’s criminal case.’’ Id., 484. This court, however, subse-
quently dismissed the appeal on the ground that certification was
improvidently granted because ‘‘[t]he respondent had squarely argued to
the habeas court that the petition should be assessed under the harmless
beyond a reasonable doubt standard. The respondent never argued in the
alternative that a higher standard of harmfulness should apply to collateral
proceedings even if the petitioner’s claim was not subject to procedural
default, despite federal case law applying a higher standard since 1993.
Accordingly, we conclude[d] that this [was] not the proper case in which
to fairly address this consequential issue . . . .’’ Id., 485.
11
Obviously, federalism and comity do not inform our determination of
the proper standard to apply. Thus, I am not persuaded by the fact that
federal courts have adopted the Brecht standard as the proper harmlessness
standard for collateral review of a state conviction for constitutional errors
or by the fact that a number of sister state courts have followed suit. As
mentioned previously, we are not bound by federal law in determining the
retroactivity of new judicial interpretations of substantive criminal law on
collateral review, which is a matter of state law. Also, as the majority
concedes, many jurisdictions, if not the majority of jurisdictions, apply the
Neder standard on collateral as well as on direct review of state convictions
for constitutional errors. See, e.g., In re Martinez, 3 Cal. 5th 1216, 1225,
407 P.3d 1, 226 Cal. Rptr. 3d 315 (2017); Guam v. Ojeda, Docket No. CRA10-
011, 2011 WL 6937376, *13 (Guam December 23, 2011); Hill v. State, 615
N.W.2d 135, 140–41 (N.D. 2000).
Moreover, the present case, involving state court collateral review of a
state conviction, is more akin to federal court collateral review of a federal
conviction for constitutional error, than to federal court collateral review
of a state conviction for constitutional error. There is currently a split among
the federal courts of appeals regarding whether the Brecht standard applies
to federal habeas review of federal court convictions, thereby suggesting
that Brecht is not clearly the proper standard to apply in this case. See
James v. United States, 217 Fed. Appx. 431, 435 (6th Cir. 2007) (‘‘State court
convictions are examined on collateral review to determine whether an
error ‘had substantial and injurious effect or influence in determining the
jury’s verdict.’ . . . This standard does not apply to collateral review of
[federal court] convictions, as [state court] convictions are entitled to special
deference.’’ (Citations omitted.)). But see United States v. Smith, 723 F.3d
510, 516 (4th Cir. 2013) (noting that United States Supreme Court has not
decided this issue and applying Brecht standard because ‘‘society has the
same interest in the finality of federal convictions as it does in state convic-
tions’’), cert. denied, 572 U.S. 1043, 134 S. Ct. 1774, 188 L. Ed. 2d 610 (2014).
12
It makes sense for the respondent to bear the heavier burden of proving
harmlessness on collateral review, such as in the present case, as the state
not only was relieved of having to bear its burden of proving an element
at the underlying criminal trial, but it was more likely to establish, even
pre-Salamon, the underlying facts regarding the kidnapping, such as the
timing and length of the restraint. In other words, although the state may
have asked additional questions of the witnesses in light of Salamon, it was
more likely to have put forth all of its admissible evidence regarding the
crime, including the length of the restraint and when the restraint occurred
in relation to other conduct, than the defendant was to have defended on
grounds relevant to Salamon. The state typically attempts to provide the
fact finder with a complete picture of the crime, whereas the defendant
would have had no motivation, pre-Salamon, to ask questions and to offer
evidence regarding the length and timing of the restraint that were unneces-
sary pre-Salamon.