Banks v. Commissioner of Correction ( 2018 )

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MARK BANKS v. COMMISSIONER OF CORRECTION
(AC 39830)
DiPentima, C. J., and Keller and Prescott, Js.
Syllabus
The petitioner, who had been convicted of kidnapping in the first degree,
robbery in the first degree, and criminal possession of a pistol or revolver
in connection with robberies at two stores, sought a writ of habeas
corpus, claiming that the trial court’s jury instruction on kidnapping
violated his due process right to a fair trial. In one instance, he locked
two individuals in a bathroom with something propped against the door,
and in the other, he told two individuals to get into the bathroom and
lock themselves in. At the petitioner’s criminal trial, the court failed to
provide a jury instruction in accordance with State v. Salamon (287
Conn. 509), in which our Supreme Court held that a defendant may be
convicted of both kidnapping and another substantive 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 has independent criminal
significance, that is, the victim was restrained in an extent exceeding
that which was necessary to accomplish or complete the other crime.
Salamon also set forth factors for purposes of making the determination
of whether a criminal defendant’s movement or confinement of a victim
was necessary or incidental to the commission of another crime. The
petitioner claimed that the failure to instruct the jury in accordance
with Salamon deprived the jury of the opportunity to consider whether
his brief restraints of the individuals were incidental to his robberies and,
therefore, were not kidnappings. The habeas court rendered judgment
denying the habeas petition and, thereafter, granted the petition for
certification to appeal, and the petitioner appealed to this court. He
claimed that the habeas court improperly determined that the lack of
a Salamon jury instruction concerning the intent and conduct necessary
to find the petitioner guilty of kidnapping was harmless beyond a reason-
able doubt. Held that the habeas court improperly concluded that the
absence of the Salamon jury instruction constituted harmless error: the
first three Salamon factors—the nature and duration of the victim’s
movement or confinement, whether that movement or confinement
occurred during the commission of the separate offense, and whether
the restraint was inherent in the nature of the separate offense—weighed
in the petitioner’s favor, as the movement to the bathrooms in both
cases was brief in distance and the duration of movement and confine-
ment lasted only a few minutes, the restraint occurred extremely close
in time to the robberies, it was conceivable that jurors could view the
fact that the petitioner moved the individuals into the bathrooms so
that he could escape as being part and parcel of the robberies, and the
habeas court improperly concluded that the movement and confinement
of the four individuals at the two stores occurred after the robberies
had been committed in that the crime of robbery does not necessarily
terminate with the taking of anther’s property, and because the jury
could have found that the movement of the individuals to the bathrooms
and confinement therein was inherent to the nature of the robberies at
the two stores, in the absence of a Salamon instruction, there was
nothing that prevented the jury from finding the petitioner guilty of
kidnapping even if it had concluded that the restraint was incidental to
the robberies; moreover, although the remaining Salamon factors did
not afford the petitioner support, the significance of the factors that
weighed in his favor outweighed the significance of those that supported
a claim of harmless error, and the respondent Commissioner of Correc-
tion did not meet the considerable burden to persuade the court beyond
a reasonable doubt that the absence of the Salamon jury instruction
did not contribute to the jury verdict regarding the kidnapping counts,
as the question of the petitioner’s intent in the movement and confine-
ment of the individuals was not uncontested or supported by overwhelm-
ing evidence, and, thus, the respondent failed to prove that the absence
of a Salamon instruction was harmless beyond a reasonable doubt.
(One judge dissenting)
Argued October 23, 2017—officially released August 7, 2018
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, Sferrazza, J.; judgment
denying the petition, from which the petitioner, on the
granting of certification, appealed to this court.
Reversed; judgment directed; further proceedings.
Pamela S. Nagy, assistant public defender, for the
appellant (petitioner).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Jo Anne Sulik, supervisory assis-
tant state’s attorney, for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The dispositive issue in this appeal
is whether the absence of a jury instruction required
by our Supreme Court’s seminal decision in State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and
subject to a retroactive application in a subsequent
collateral proceeding; see Luurtsema v. Commissioner
of Correction, 299 Conn. 740, 12 A.3d 817 (2011); consti-
tuted harmless error. See Hinds v. Commissioner of
Correction, 321 Conn. 56, 136 A.3d 596 (2016). This
court recently articulated the issue as follows: ‘‘[A]
defendant who has been convicted of kidnapping may
collaterally attack his kidnapping conviction on the
ground that the trial court’s jury instructions failed to
require that the jury find that the defendant’s confine-
ment or movement of the victim was not merely inciden-
tal to the defendant’s commission of some other crime
or crimes.’’ Wilcox v. Commissioner of Correction, 162
Conn. App. 730, 736, 129 A.3d 796 (2016). Further, a
reviewing court must conclude, beyond a reasonable
doubt, that the absence of the Salamon instruction did
not contribute to the kidnapping conviction. White v.
Commissioner of Correction, 170 Conn. App. 415, 428,
154 A.3d 1054 (2017).
In this case, the respondent, the Commissioner of
Correction, bears the arduous burden of demonstrating
that the omission of an instruction on incidental
restraint did not contribute to the verdict. See, e.g.,
id., 428–29. Accordingly, our task is not to determine
whether sufficient evidence existed in the record to
support a conviction of kidnapping or ‘‘whether a jury
likely would return a guilty verdict if properly
instructed; rather, the test is whether there is a reason-
able possibility that a properly instructed jury would
reach a different result.’’ (Emphasis added.) State v.
Flores, 301 Conn. 77, 87, 17 A.3d 1025 (2011). We con-
clude that, under the facts and circumstances of this
case, as well as the analysis established in our appellate
precedent, the absence of the Salamon instruction was
not harmless beyond a reasonable doubt. Accordingly,
we reverse the judgment of the habeas court denying
the petitioner’s petition for a writ of habeas corpus, and
remand the case with direction to vacate his kidnapping
convictions and to order a new trial with respect to
those charges.
The petitioner, Mark Banks, appeals from the judg-
ment of the habeas court denying his amended petition
for a writ of habeas corpus. On appeal, he claims that
the decision of the habeas court violated his due process
right to a fair trial pursuant to the fifth and fourteenth
amendments to the United States constitution. Specifi-
cally, he contends that the court improperly determined
that the lack of a jury instruction in his underlying
criminal case concerning the intent and conduct neces-
sary to find the petitioner guilty of kidnapping in accor-
dance with State v. Salamon, supra, 287 Conn. 509, was
harmless beyond a reasonable doubt. We agree with
the petitioner.
The following facts and procedural history are rele-
vant to this appeal. In 1997, following a jury trial, the
petitioner was convicted of four counts of kidnapping
in the first degree in violation of General Statutes § 53a-
92 (a) (2) (B),1 four counts of robbery in the first degree
in violation of General Statutes § 53a-134 (a) (4), and
two counts of criminal possession of a pistol or revolver
in violation of General Statutes § 53a-217c.2 The trial
court sentenced the petitioner to a total effective sen-
tence of twenty-five years incarceration3 consecutive
to any sentence the petitioner was presently serving.4
In 2000, following a direct appeal, this court affirmed
the judgments of conviction, setting forth the following
facts that a reasonable jury could have found concern-
ing the petitioner’s crimes: ‘‘Michael Kozlowski and
Howard Silk were working [on the evening of August
30, 1995] at the Bedding Barn store in Newington. The
[petitioner], posing as a customer, entered the store
shortly before closing at 9 p.m.; there were no other
customers in the store. Kozlowski approached the [peti-
tioner] and began to show him some king-size beds.
The [petitioner] pulled a large silver gun from a bag
he was holding. The gun had a round cylinder. The
[petitioner], while pointing the gun at Silk, ordered Koz-
lowski to open the cash register. After taking money
from the register, the [petitioner] requested the store’s
bank bag or safe. The [petitioner] then asked Silk and
Kozlowski for the money from their wallets. He then
took money from Silk, but not from Kozlowski. Silk
and Kozlowski were then locked in the bathroom with
something propped against the door and told not to
leave or they would be shot. A short time later, when
Silk and Kozlowski heard the doorbell in the store ring,
they assumed the robber had left, pushed open the
bathroom door and called the police.’’ State v. Banks,
59 Conn. App. 112, 116, 755 A.2d 951, cert. denied, 254
Conn. 950, 762 A.2d 904 (2000).
‘‘Kelly Wright was working [on the evening of Septem-
ber 13, 1995] at the Bedding Barn store in Southington.
Shortly before 9 p.m., while Wright’s roommate, Idelle
Feltman, was waiting to take her home, the [petitioner]
and an unknown woman, posing as customers, entered
the store. The [petitioner] pulled a gun from a bag he
was carrying, held it to Feltman’s temple, and asked
her to open the cash register and to give him money.
The [petitioner] then requested the bank bag, which
Feltman gave him. The [petitioner] then told Wright and
Feltman to get into the bathroom and lock themselves
in. Shortly thereafter, Feltman and Wright heard the
door buzzer and surmised that the [petitioner] had left
the store. They exited the bathroom and called the
police.’’ Id., 116–17.
On January 13, 2014, the petitioner filed the petition
for a writ of habeas corpus underlying the present
appeal, which he amended on August 12, 2016, alleging
a violation of his due process right to a fair trial. In
his amended petition, the petitioner challenged his two
kidnapping convictions on the ground that the instruc-
tions given to the jury were not in accordance with
State v. Salamon, supra, 287 Conn. 509. On October 14,
2016, the respondent filed his return to the amended
petition. On October 17, 2016, both sides stipulated to
a trial on the papers.5
On October 20, 2016, the court issued a memorandum
of decision denying the petition. In its memorandum
of decision, the court set forth a detailed version of
events based on the transcript from the petitioner’s
criminal trial.6 The habeas court concluded that the
respondent demonstrated that the absence of a Sala-
mon instruction at the petitioner’s criminal trial consti-
tuted harmless error because the ‘‘movements and
confinements [of the employees] were perpetrated after
the crimes of robbery were committed and cannot con-
ceivably be regarded as coincidental with or necessary
to complete the substantive crimes of robbery. Depriv-
ing someone of their freedom of movement by imprison-
ing them in a bathroom subsequent to acquiring their
money, although convenient for the robber, is not inher-
ent in the crime of robbery. It is crystal clear that the
petitioner’s intent and purpose for locking up his rob-
bery victims was to postpone their summoning of assis-
tance and reporting of the crime to police, thus
facilitating the petitioner’s escape from the scene and
delaying detection of his crime, identity, and/or where-
abouts. Also, the petitioner extended the period of
infliction of duress and distress for the victims by
restraining them beyond the time of fulfillment of his
quest, i.e., seizure of cash.’’ (Emphasis in original.) The
habeas court subsequently granted the petitioner’s cer-
tification to appeal on October 27, 2016. This appeal
followed.
The petitioner claims that the habeas court improp-
erly determined that the lack of a jury instruction in
his underlying criminal case concerning the intent and
conduct necessary to find the petitioner guilty of kid-
napping in accordance with State v. Salamon, supra,
287 Conn. 509, was harmless beyond a reasonable
doubt. We agree.
The determination of whether the trial court’s failure
to provide a Salamon instruction constitutes harmless
error is a question of law subject to plenary review.
Farmer v. Commissioner of Correction, 165 Conn. App.
455, 459, 139 A.3d 767, cert. denied, 323 Conn. 905, 150
A.3d 685 (2016); see also Hinds v. Commissioner of
Correction, supra, 321 Conn. 65; Nogueira v. Commis-
sioner of Correction, 168 Conn. App. 803, 814, 149 A.3d
983, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016).
A review of the evolution of our kidnapping jurispru-
dence will facilitate the analysis in this case. Following
the petitioner’s criminal trial and direct appeal, our
Supreme Court issued several significant decisions with
respect to the crime of kidnapping. See State v. Sala-
mon, supra, 287 Conn. 542–550; see also State v.
DeJesus, 288 Conn. 418, 430–34, 438, 953 A.2d 45 (2008);
State v. Sanseverino, 287 Conn. 608, 620–26, 949 A.2d
1156 (2008), overruled in part by State v. DeJesus, supra,
437, and superseded in part after reconsideration by
State v. Sanseverino, 291 Conn. 574, 969 A.2d 710
(2009).
‘‘In Salamon, we reconsidered our long-standing
interpretation of our kidnapping statutes, General Stat-
utes §§ 53a-91 through 53a-94a. . . . The defendant
had assaulted the victim at a train station late at night,
and ultimately was charged with kidnapping in the sec-
ond degree in violation of § 53a-94, unlawful restraint
in the first degree, and risk of injury to a child. . . .
At trial, the defendant requested a jury instruction that,
if the jury found that the restraint had been incidental
to the assault, then the jury must acquit the defendant
of the charge of kidnapping. . . . The trial court
declined to give that instruction. . . .
‘‘[W]e [thus] reexamined our long-standing interpre-
tation of the kidnapping statutes 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 ultimately con-
cluded that [o]ur legislature . . . intended to exclude
from the scope of the more serious crime of kidnapping
and its accompanying severe penalties those confine-
ments or movements of a victim that are merely inciden-
tal to and necessary for the commission of another
crime against that victim. Stated otherwise, to commit
a kidnapping in conjunction with another crime, a
defendant must intend to prevent the victim’s libera-
tion for a longer period of time or to a greater degree
than that which is necessary to commit the other
crime. . . .
‘‘We explained in Salamon that a defendant may be
convicted of both kidnapping and another substantive
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 relevant factors,
including the nature and duration of the victim’s move-
ment or confinement by the defendant, whether that
movement or confinement occurred during the commis-
sion of the separate offense, whether the restraint was
inherent in the nature of the separate offense, whether
the restraint prevented the victim from summoning
assistance, whether the restraint reduced the defen-
dant’s risk of detection and whether the restraint cre-
ated a significant danger or increased the victim’s risk
of harm independent of that posed by the separate
offense.’’ (Citations omitted; emphasis added; internal
quotation marks omitted.) State v. Hampton, 293 Conn.
435, 459–60, 988 A.2d 167 (2009); see also White v.
Commissioner of Correction, supra, 170 Conn. App.
423–24; Wilcox v. Commissioner of Correction, supra,
162 Conn. App. 742.
Next, in Luurtsema v. Commissioner of Correction,
supra, 299 Conn. 742, our Supreme Court considered
whether its decisions in State v. Salamon, supra, 287
Conn. 509, State v. Sanseverino, supra, 287 Conn. 608,
and State v. DeJesus, supra, 288 Conn. 418, applied
retroactively to collateral attacks on final judgments.
It ultimately concluded that ‘‘when an appellate court
provides a new interpretation of a substantive criminal
statute, an inmate convicted under a prior, more expan-
sive reading of the statute presumptively will be entitled
to the benefit of the new interpretation on collateral
attack. We decline, however, the petitioner’s invitation
to adopt a per se rule in favor of full retroactivity.’’ Id.,
760; see also Farmer v. Commissioner of Correction,
supra, 165 Conn. App. 459–460; Eric M. v. Commis-
sioner of Correction, 153 Conn. App. 837, 844–45, 108
A.3d 1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d
308 (2015); Epps v. Commissioner of Correction, 153
Conn. App. 729, 735, 104 A.3d 760 (2014) (‘‘[o]ur
Supreme Court later ruled that its holding in Salamon
is retroactive’’), appeal dismissed, 327 Conn. 482, 175
A.3d 558 (2018) (certification improvidently granted).
Finally, in Hinds v. Commissioner of Correction,
supra, 321 Conn. 61, our Supreme Court held that the
procedural default rule does not apply to claims that
the trial court failed to instruct the jury in accordance
with State v. Salamon, supra, 287 Conn. 509, in cases
rendered final before that decision was issued. The
court also addressed the proper standard for determin-
ing when the failure to provide the jury with a Salamon
instruction requires a new trial. Id., 76. It reasoned that
the failure to instruct the jury in accordance with Sala-
mon is considered to be an omission of an essential
element of kidnapping, and thus, rises to the level of
constitutional error. Id., 78.
‘‘[T]he test for determining whether a constitutional
error is harmless . . . is whether it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained. . . . A jury instruc-
tion that improperly omits an essential element from the
charge constitutes harmless error [only] if a reviewing
court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict
would have been the same absent the error . . . .’’
(Internal quotation marks omitted.) Id., 77–78; see also
Luurtsema v. Commissioner of Correction, supra, 299
Conn. 770; White v. Commissioner of Correction, supra,
170 Conn. App. 427–28; Nogueira v. Commissioner of
Correction, supra, 168 Conn. App. 812–13; see generally
State v. Fields, 302 Conn. 236, 245–46, 24 A.3d 1243
(2011) (on direct appeal, jury instruction that omits
essential element from charge constitutes harmless
error only if reviewing court concluded, beyond reason-
able doubt, that omitted element was uncontested and
supported by overwhelming evidence such that jury
verdict would have been same absent error); State v.
Flores, supra, 301 Conn. 83 (on direct appeal, test for
determining whether constitutional error in jury
instruction is harmless is whether it appears beyond
reasonable doubt that error complained of did not con-
tribute to verdict).7 We emphasize that to prevail on
his habeas claim that the absence of a Salamon instruc-
tion did not constitute harmless error, the petitioner is
not required to establish that there was insufficient
evidence to convict him or that a properly instructed
jury likely would find him guilty. Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 85; State v. Flo-
res, supra, 301 Conn. 87.
We now turn to the petitioner’s claim, and the disposi-
tive issue,8 that is, whether the respondent failed to
establish that the absence of a Salamon instruction
constituted harmless error. Specifically, the petitioner
argues that, on the basis of the evidence presented at
his criminal trial, ‘‘it would have been reasonable for
jurors to conclude that the brief restraint that occurred
during the commission of the robbery was incidental
to the robbery, and therefore, was not a kidnapping.
Because the petitioner was deprived of the opportunity
of having the jurors consider this issue, which was
susceptible to more than one interpretation, the respon-
dent did not prove the error was harmless beyond a
reasonable doubt.’’
The respondent counters that the habeas court prop-
erly concluded that the absence of the Salamon instruc-
tion constituted harmless error because ‘‘[t]he
petitioner had completed the robberies without need
for, and prior to, moving and restraining the [employ-
ees], and he moved and restrained them simply to facili-
tate his escape without detection.’’ We agree with the
petitioner.
‘‘To answer the question of whether the absence of
the Salamon standard constituted harmless error
requires us to examine the factors and principles enun-
ciated in that case.’’ Nogueira v. Commissioner of Cor-
rection, supra, 168 Conn. App. 840. ‘‘[A] defendant may
be convicted of both kidnapping and another substan-
tive 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 has 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.’’ (Emphasis added.)
State v. Salamon, supra, 287 Conn. 547–48. We iterate
that ‘‘to commit a kidnapping 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.’’ Id., 542.
The Salamon court set forth a list of factors ‘‘[f]or
purposes of making [the] determination [of whether a
criminal defendant’s movement or confinement of a
victim was necessary or incidental to the commission
of another crime; specifically] the jury should be
instructed to consider the various relevant factors,
including [1] the nature and duration of the victim’s
movement or confinement by the defendant, [2]
whether that movement or confinement occurred dur-
ing 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 defendant’s risk of detection and [6]
whether the restraint created a significant danger or
increased the victim’s risk of harm independent of that
posed by the separate offense.’’ Id., 548.
With respect to the first Salamon factor, the nature
and duration of the victim’s movement or confinement,
the petitioner argues: ‘‘The movement to the bathroom
in both cases was brief in distance and the duration
of the movement and confinement lasted only a few
minutes. In addition, the restraint occurred extremely
close in time to the robbery and it is conceivable that
jurors would view the fact that [the] petitioner moved
the employees into the bathroom so that he could
escape as being part and parcel of the robbery.’’ The
respondent counters that ‘‘[o]n the facts of this case,
the nature and duration of the movements and confine-
ments reinforce their independent significance.’’ We
agree with the petitioner that this factor weighs in
his favor.
Analysis of this factor is guided by our decision in
White v. Commissioner of Correction, supra, 170 Conn.
App. 430–432, where we observed: ‘‘[I]n Hinds v. Com-
missioner of Correction, supra, 321 Conn. 92–93, our
Supreme Court attempted to categorize various Sala-
mon incidental restraint cases with differing degrees
of confinement or movement: Although no minimum
period of restraint or degree of movement is necessary
for the crime of kidnapping, an important facet of cases
where the trial court has failed to give a Salamon
instruction and that impropriety on appellate review
has been deemed harmless error is that longer periods
of restraint or greater degrees of movement demarcate
separate offenses. See State v. Hampton, supra, 293
Conn. 463–64 (defendant confined victim in a car and
drove her around for approximately three hours before
committing sexual assault and attempted murder);
State v. Jordan, [129 Conn. App. 215, 222–23, 19 A.3d
241] (evidence showed the defendant restrained the
victims to a greater degree than necessary to commit
the assaults even though assaultive behavior spanned
entire forty-five minute duration of victims’ confine-
ment) [cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011)];
State v. Strong, [122 Conn. App. 131, 143, 999 A.2d 765]
(defendant’s prolonged restraint of victim while driving
for more than one hour from one town to another not
merely incidental to threats made prior to the restraint)
[cert. denied, 298 Conn. 907, 3 A.3d 73 (2010)]; and State
v. Nelson, [118 Conn. App. 831, 860–62, 986 A.2d 311]
(harmless error when defendant completed assault and
then for several hours drove victim to several locations)
[cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010)].
Thus, as these cases demonstrate, multiple offenses
are more readily distinguishable—and, consequently,
more likely to render the absence of a Salamon instruc-
tion harmless—when the offenses are separated by
greater time spans, or by more movement or restric-
tion of movement.
‘‘Conversely, multiple offenses occurring in a much
shorter or more compressed time span make the same
determination more difficult and, therefore, more
likely to necessitate submission to a jury for it to
make its factual determinations regarding whether
the restraint is merely incidental to another, separate
crime. In those scenarios, [in which] kidnapping and
multiple offenses occur closer in time to one another,
it becomes more difficult to distinguish the confinement
or restraint associated with the kidnapping from
another substantive crime. The failure to give a proper
Salamon instruction in those scenarios is more likely
to result in harmful error precisely because of the diffi-
culty in determining whether each crime has indepen-
dent criminal significance. See State v. Thompson, [118
Conn. App. 140, 162, 983 A.2d 20 (2009)] (within fifteen
minutes defendant entered victim’s car, pushed her
behind a building and sexually assaulted her) [cert.
denied, 294 Conn. 932, 986 A.2d 1057 (2010)]; State v.
Flores, [supra, 301 Conn. 89] (defendant’s robbery of
victim in her bedroom lasted between five and twenty
minutes); State v. Gary, [120 Conn. App. 592, 611, 992
A.2d 1178] (defendant convicted of multiple sexual
assaults and an attempted sexual assault that were in
close temporal proximity to the defendant’s restraint of
the victim; thus court determined evidence reasonably
supports a finding that the restraint merely was inciden-
tal to the commission of other crimes, namely, sexual
assaults and attempted sexual assault; lack of Salamon
instruction harmful error) [cert. denied, 297 Conn. 910,
995 A.2d 637 (2010)].’’ (Emphasis added; internal quota-
tion marks omitted.); see generally Wilcox v. Commis-
sioner of Correction, supra, 162 Conn. App. 743 (review
of appellate decisions reveals that absence of Salamon
instruction is generally more prejudicial where kidnap-
ping related actions were closely aligned in time, place
and manner to other criminal acts and these factors
are particularly crucial).
In the present case, at the criminal trial, the state
presented testimony that the length of the entire store
in Newington was ‘‘maybe thirty yards.’’ In response to
a question regarding the distance from the counter to
the bathroom, Kozlowski stated: ‘‘[The bathroom is]
actually right behind [the counter] but there is a wall.
I mean, you’d have to walk maybe twelve, twenty, about
twenty-four feet, basically a square.’’ Silk testified that
the two employees and the petitioner remained by the
counter for approximately four to five minutes.
After moving the two employees to the bathroom,
the petitioner then placed a mop handle behind the
door. A few minutes later, the employees heard a bell
that sounded when someone entered or exited the store.
The employees then pushed open the door to the bath-
room and called the police. Silk specifically indicated
that the two employees remained in the bathroom for
a period of time ‘‘[u]nder two minutes. Maybe even
under a minute.’’
With respect to the criminal activity at the South-
ington store, Wright testified that the entire proceed-
ings, from the time the petitioner entered the store until
he left, lasted five to ten minutes. Feltman indicated
that her encounter with the petitioner in front of the
cash register lasted four to five minutes. Feltman also
noted that a narrow hallway, with three doors, con-
nected the main showroom to the bathroom area.
Wright and Feltman testified that they remained in the
bathroom for a few minutes before exiting and calling
the police.
In each instance, the petitioner’s criminal conduct
occurred at a single location. See White v. Commis-
sioner of Correction, supra, 170 Conn. App. 432. Fur-
thermore, the robberies and purported kidnappings
were not separated by a significant time period or dis-
tance. Id., 432–33. Under these facts, it is difficult to
determine whether each crime had independent crimi-
nal significance. Id., 431. Given the ‘‘close temporal
proximity to the alleged kidnapping and [the fact that]
any confinement/movement was limited in nature and
distance,’’ this factor supports the petitioner’s con-
tention that the lack of a Salamon instruction was not
harmless error. Id., 432–33; see also Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 79–80 (petition-
er’s actions were continuous, uninterrupted course of
conduct and lasted a few minutes where he pursued,
grabbed, threatened and sexually assaulted victim);
State v. Flores, supra, 301 Conn. 87 (Supreme Court
noted that where victim neither was bound nor moved
physically, but was restrained on bed for no more than
five minutes, failure to provide jury with Salamon
instruction was not harmless); Epps v. Commissioner
of Correction, supra, 153 Conn. App. 741 (evidence nei-
ther overwhelming nor undisputed regarding restriction
of victim’s movements during assault); cf. State v.
Hampton, supra, 293 Conn. 464 (passage of substantial
amount of time clearly showed defendant’s intent to
prevent victim’s liberation for longer period of time or
to greater degree than necessary to commit subsequent
crimes); Nogueira v. Commissioner of Correction,
supra, 168 Conn. App. 841 (absence of Salamon instruc-
tion harmless where, inter alia, criminal conduct lasted
for nearly two hours and was interrupted by actions
of third party and victim’s escape efforts); Eric M. v.
Commissioner of Correction, supra, 153 Conn. App.
846–47 (failure to give Salamon instruction harmless
where victim had been sexually assaulted for few
minutes and restrained for five hours); State v. Nelson,
supra, 118 Conn. App. 860–61 (court noted significance
of substantial length of restraint and that five hour
period of restraint constituted overwhelming evidence
of intent to prevent liberation for longer period of time
than necessary to commit assault).
Next, we consider the second Salamon factor, that
is, whether the confinement or movement of the three
store employees and Feltman occurred during the com-
mission of the robberies. See, e.g., White v. Commis-
sioner of Correction, supra, 170 Conn. App. 433. The
habeas court determined that ‘‘[t]hese movements and
confinements were perpetrated after the crimes of rob-
bery were committed and cannot conceivably be
regarded as coincidental with or necessary to complete
the substantive crimes of robbery. Depriving someone
of their freedom of movement by imprisoning them
in a bathroom subsequent to acquiring their money,
although convenient for the robber, is not inherent in
the crime of robbery.’’ (Emphasis in original.) The
respondent agrees with the habeas court’s statement
that the crime of robbery had been completed prior
to the movement and confinement of the three store
employees and Feltman, which supports the contention
that the absence of the Salamon instruction was harm-
less. The petitioner maintains that the jury could have
concluded that the placing of the three store employees
and Feltman in the bathrooms was part of the robberies
and that the robberies did not end as soon as the peti-
tioner took the money. Again, we agree with the peti-
tioner.
Initially, we address whether the robberies ended as
soon as the petitioner took the money. At common law,
robbery was defined as ‘‘the felonious taking of personal
property from the person or custody of another by force
or intimidation.’’ State v. Reid, 154 Conn. 37, 39, 221
A.2d 258 (1966). In the present case, the petitioner was
convicted of violating § 53a-134 (a) (4), which provides:
‘‘A person is guilty of robbery in the first degree when,
in the course of the commission of the crime of robbery
as defined in section 53a-133 or of immediate flight
therefrom, he or another participant in the crime . . .
(4) displays or threatens the use of what he represents
by his words or conduct to be a pistol, revolver, rifle,
shotgun, machine gun or other firearm . . . .’’ (Empha-
sis added.) General Statutes § 53a-133, in turn, defines
a robbery as follows: ‘‘A person commits robbery when,
in the course of committing a larceny, he uses or threat-
ens the immediate use of physical force upon another
person for the purpose of: (1) Preventing or overcoming
resistance to the taking of the property or to the reten-
tion thereof immediately after the taking; or (2) compel-
ling the owner of such property or another person to
deliver up the property or to engage in other conduct
which aids in the commission of the larceny.’’ See also
State v. Wallace, 56 Conn. App. 730, 740–41, 745 A.2d
216, cert. denied, 253 Conn. 901, 753 A.2d 939 (2000).
The petitioner continued to display and threaten the
use of a firearm after he had used or threatened the
use of physical force in the act of committing a larceny
at the Newington and Southington stores.9 In other
words, the jury could have determined that the peti-
tioner continued to violate § 53a-134 (a) as he comman-
deered the three store employees and Feltman into
the bathrooms and that the robbery offenses had not
concluded with his taking of the money from each store.
See also 67 Am. Jur. 2d, Robbery § 4 (2018) (‘‘[r]obbery
has been described as a continuing offense, or a contin-
uous transaction, that is ongoing until the robber has
won his or her way to a place of temporary safety.’’
[Footnotes omitted.]); 77 C.J.S., Robbery § 1 (2018)
(‘‘[r]obbery is not confined to any fixed locus, but is
frequently spread over a considerable distance and var-
ying periods of time. Accordingly, robbery may be char-
acterized as a continuing offense which is not complete
until the robbers reach a place of temporary safety.’’
[Footnote omitted.]).
Our determination that the crime of robbery may
continue after the taking of the property finds support
in our case law. For example, in State v. Ghere, 201
Conn. 289, 290, 513 A.2d 1226 (1986), the defendant
challenged his conviction of attempt to commit robbery
in the first degree as an accessory on the basis of insuffi-
cient evidence. Specifically, the defendant claimed that
the state had failed to prove that he had ‘‘used or threat-
ened to use force ‘in the course of’ attempting the lar-
ceny under . . . § 53a-133 and that, as a result, he
could not be found guilty of attempted robbery in the
first degree.’’ Id., 296–97. In Ghere, the defendant and
another man approached the victim in a supermarket
parking lot, blocked him from proceeding into the store
and asked for money. Id., 291–92. After a brief verbal
exchange, the victim refused to give the defendant
money. Id., 292. The defendant stepped toward the vic-
tim and displayed a blackjack. Id. The defendant then
struck the victim in the face with the weapon, and then
punched him several times in the stomach. Id. After the
victim pretended to be unconscious, the defendant and
his companion quickly departed from the parking lot
without searching the victim. Id.
In rejecting the defendant’s insufficiency claim, our
Supreme Court stated: ‘‘We cannot agree with the defen-
dant’s position . . . that the use of force was not ‘in the
course of’ the attempted robbery because the assault
of the victim occurred subsequent to the demand for
money. It is well established that, under . . . § 53a-
133, if the use of force occurs during the continuous
sequence of events surrounding the taking or
attempted taking, even though some time immediately
before or after, it is considered to be ‘in the course
of’ the robbery or the attempted robbery within the
meaning of the statute. . . . In the present case,
although the defendant could have assaulted the victim
for any number of reasons, including frustration, anger,
fear or desire to keep the victim from pursuing him,
the assault occurred within seconds of the demand
for money. The blackjack was also apparently in the
defendant’s hand while the demand was made. From
these facts the jury could reasonably have concluded
that the force used ‘was within the sequence of events
directly connected with the attempted robbery.’ ’’ (Cita-
tions omitted; emphasis added.) Id., 297–98; see also
State v. Moore, 100 Conn. App. 122, 129–130, 917 A.2d
564 (2007) (well within province of jury to find that
defendant’s threat was made during continuous
sequence of events surrounding theft of property).
We applied this reasoning in State v. Cooke, 89 Conn.
App. 530, 874 A.2d 805, cert. denied, 275 Conn. 911, 882
A.2d 677 (2005). In Cooke, the defendant claimed on
appeal that, inter alia, there was insufficient evidence
to support his conviction of felony murder. Id., 533.
The defendant, along with two others, conducted an
armed robbery of a ‘‘garage party’’ in Bridgeport, taking
money, jewelry and other items from the guests. Id.,
533–34. Police officers arrived and a shootout ensued.
Id., 534. The victim, a guest at the party, died as a
result of a bullet fired from a gun carried by one of the
defendant’s fellow perpetrators. Id.
On appeal, the defendant argued that by the time the
victim had been killed, the robbery had been completed,
and therefore there was insufficient evidence for the
jury to conclude that ‘‘the use of force was within the
sequence of events directly connected to the robbery.’’
(Internal quotation marks omitted.) Id., 535. In rejecting
this argument, we relied on the reasoning in State v.
Ghere, supra, 201 Conn. 297, and determined there was
evidence for the jury to conclude that use of force, i.e.,
shooting at the police, was part of an effort to retain
the stolen property and elude capture. State v. Cooke,
supra, 89 Conn. App. 536–37. Additionally, there was
evidence before the jury that the victim had made an
effort to stop the defendant and his fellow perpetrators,
and was shot and killed as a result thereof. Id., 537.
Thus, there was sufficient evidence that the use of force
had occurred during the continuous sequence of events
related to the taking of property, even though some
time had elapsed after the actual taking, so as to be
considered in the course of the robbery. Id., 536–37.
For these reasons, we conclude that the habeas court
improperly concluded that the movement and confine-
ment of the three store employees and Feltman in both
the Newington and Southington stores occurred after
the robberies had been committed and could not ‘‘con-
ceivably be regarded as coincidental with or necessary
to complete the substantive crimes of robbery.’’ We
further disagree that it is ‘‘crystal clear’’ that the intent
and purpose of the petitioner was to delay the three
store employees and Feltman from summoning assis-
tance and reporting his crimes to the police, thereby
aiding in the petitioner’s escape.10 The jury reasonably
could have determined that the confinement and move-
ment of the three store employees and Feltman after
the taking of the money was part of the course of events
of the robberies.
We again are guided by our decision in White v. Com-
missioner of Correction, supra, 170 Conn. App. 415. In
that case, the petitioner, Phillip White III, had been
convicted of kidnapping in the second degree with a
firearm and burglary in the second degree with a fire-
arm. Id., 419–20. White’s conviction stemmed from his
actions on June 24, 2003. Id., 417. On that day, White
rang the doorbell of a home in Fairfield and told the
teenage complainant who answered the door that he
was selling magazines to earn money for college. Id.
The complainant informed White that her parents were
not home and that he should return later. Id. White
requested to use the bathroom and entered the home
without receiving permission from the complainant. Id.
White made a second sales effort, but the complainant
again declined to purchase any magazines. Id., 418.
White then closed the front door, placed his hand in
his rear pocket, and informed the complainant that he
had a gun. Id. After ordering her to sit on the couch,
he learned that no one else was present in the home.
Id. After a few minutes, White stated that he wanted
to go upstairs and placed his hand on the complainant’s
elbow. Id. Upon this physical contact, the complainant
began to cry and scream; in response, White instructed
her to be quiet. Id. White also prevented the complain-
ant’s attempt to exit the home via the front door. Id. The
complainant continued to scream, and White ‘‘suddenly
stopped and said that he was just playing. [White] then
called the complainant a ‘scaredy-ass,’ opened the front
door and ran out of the house.’’ Id., 418–19.
The court granted White’s motion for summary judg-
ment with respect to his habeas petition, concluding
that he was entitled to a Salamon instruction and the
absence of that instruction was not harmless. Id., 422.
On appeal, we affirmed the summary judgment ren-
dered in favor of the petitioner. Id., 439. In that case,
the respondent claimed, with respect to the second
Salamon factor, that the burglary had been completed
prior to White’s conduct that comprised the kidnapping,
specifically, that the burglary had been completed once
White had entered the home and informed the complain-
ant that he had a gun. Id., 433. According to the respon-
dent, White’s subsequent actions, such as compelling
the complainant to sit on the couch, telling her to go
upstairs and touching her arm, were unnecessary to
accomplish the completed crime of burglary. Id.
We did not ‘‘find this unduly legalistic line of reason-
ing persuasive. The respondent’s syllogism fail[ed] to
recognize that the jury could have viewed [White’s]
actions . . . as a continuous, uninterrupted course of
conduct all relating to the burglary offense.’’ (Emphasis
added.) Id. In support, we cited authority that a burglary
continues until all parties participating in that crime
have left the property. Id., 434. Acknowledging the pro-
priety of the responent’s argument that sufficient evi-
dence for the burglary conviction attached at the point
when White stated that he had a gun while in the home
of the complainant, we nevertheless concluded that
‘‘the jury could have deemed the burglary to be in prog-
ress for the entirety of the ten minutes in which he was
at the residence because he remained on the premises
with the intent to commit a crime. . . . This is espe-
cially true under the facts of this case because the
underlying crime that formed the basis of [White’s]
intent for his burglary charge was never completed,
and, thus, the jury reasonably could have found that
his intent to ‘commit a crime therein’ was ongoing up
until the point at which he abruptly left the residence.’’
(Citation omitted; emphasis omitted; footnote omitted.)
Id., 434–35.11 Ultimately, we were unable to conclude
that had the jury been given a Salamon instruction, it
would have found that White’s actions confining or
moving the complainant had not occurred during the
commission of the burglary. Id., 435; see also State v.
Flores, supra, 301 Conn. 87 (where victim was
restrained on bed for brief time while defendant and
accomplices searched bedroom for valuables and was
released after perpetrators left house, Supreme Court
could not conclude failure to provide jury with Salamon
instruction was harmless).
Similarly, in the present case, we are unable to con-
clude that a properly instructed jury would have neces-
sarily determined that the actions of the petitioner
moving the three store employees and Feltman to the
bathrooms and confining them therein took place after
a completed robbery. As we previously noted, the crime
of robbery does not necessarily terminate with the tak-
ing of another’s property. The jury reasonably could
have determined that petitioner’s actions following his
receipt of the money from the cash registers were part
of a continuous sequence of events directly connected
to the robberies of the Newington and Southington
stores. Accordingly, the second Salamon factor sup-
ports the petitioner.
Next, we consider the third Salamon factor, that is,
whether the restraint was inherent in the nature of the
separate offense of robbery. The respondent recognizes
that in State v. Fields, supra, 302 Conn. 247–48, our
Supreme Court specifically rejected the argument that
when restraint is not an element of the underlying
crime, a Salamon instruction is not required and instead
determined that the jury must decide whether the
restraint was merely incidental to the underlying crime
or had independent criminal significance.12 Stated dif-
ferently, because restraint is not an element of § 53a-134
(a) (4), the proper question is whether the petitioner’s
restraint of the three employees and Feltman was inher-
ent to the robbery of the stores. See White v. Commis-
sioner of Correction, supra, 170 Con. App. 436. The
respondent argues that the restraint here was not inci-
dental to the robberies, which, in the respondent’s view,
had been completed. We disagree.
We previously have rejected the respondent’s argu-
ment that the robberies at the Newington and South-
ington stores had been completed at the time of the
movement and confinement of the three employees and
Feltman. Furthermore, we iterate that the jury could
have found that the movement of the three store
employees and Feltman from the sales floor to the bath-
rooms, and confinement therein, was inherent to the
nature of the robberies at the two stores. See id., 435–37.
In the absence of a Salamon instruction, there was
nothing to prevent the jury from finding the petitioner
guilty of kidnapping even if it had concluded that the
restraint was incidental to the robberies. State v. Fields,
supra, 302 Conn. 252. Accordingly, we conclude that the
third Salamon factor weighs in favor of the petitioner.
The remaining Salamon factors, whether the
restraint prevented the three employees and Feltman
from summoning assistance, whether the restraint
reduced the risk of detection and whether the restraint
created a significant danger or increased the risk of
harm to the victim independent of that posed by the
robbery, afford the petitioner little, if any, support. See,
e.g., White v. Commissioner of Correction, supra, 170
Conn. App. 437–38. We disagree with the statement
in the petitioner’s brief that the confinement in the
bathroom did not prevent the three employees and Felt-
man from summoning assistance or reduce the risk
of detection.
Nevertheless, the 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. See White v. Com-
missioner of Correction, supra, 170 Conn. App. 437–38
(certain Salamon factors cut in favor of respondent,
but did not trump significance of others that weighed
in favor of petitioner); see also Hinds v. Commissioner
of Correction, supra, 321 Conn. 92–93 (noting that
where confinement or restraint associated with kidnap-
ping occurs in close time frame to other offense, failure
to provide Salamon instruction more likely to result
in harmful error because of difficulty in determining
whether each crime had independent criminal signif-
icance).
We emphasize the respondent’s considerable burden
in this appeal. First, as we previously have explained
in some detail, the law of kidnapping has evolved signifi-
cantly since the time of the petitioner’s criminal trial.
These developments apply retroactively to his convic-
tions. Following a concession that the petitioner was
entitled to a Salamon instruction at the criminal trial,
the respondent is required under our law to persuade
this court beyond a reasonable doubt that the absence
of the instruction did not contribute to the jury verdict
regarding the kidnapping counts. State v. Field, supra,
302 Conn. 245–46; State v. Flores, supra, 301 Conn. 83;
see also Hinds v. Commissioner of Correction, supra,
321 Conn. 77–78 (jury instruction that improperly omit-
ted essential element from charge constitutes harmless
error only if reviewing court concludes beyond reason-
able doubt that omitted element was uncontested and
supported by overwhelming evidence such that verdict
would have been same absent error). After considering
and applying the Salamon factors, and guided by the
precedent of our appellate courts, we are not satisfied
that the question of the petitioner’s intent in the move-
ment and confinement of the three employees and Felt-
man in the Newington and Southington stores was
uncontested or supported by overwhelming evidence.
A jury provided with a Salamon instruction reason-
ably could determine that the petitioner’s movement
and confinement of the three employees and Feltman
in the bathrooms was done in furtherance of the August
30, 1995 and September 13, 1995 robberies.13 See, e.g.,
State v. Flores, supra, 301 Conn. 87 (test is not whether
jury would return a guilty verdict if properly instructed,
but rather whether it was reasonably possible that jury,
instructed in accordance with Salamon might find peti-
tioner’s conduct constituted robbery but did not rise
to level of kidnapping). Put differently, considering the
de minimis movement and confinement14 of the three
employees and Feltman after the petitioner took the
money from cash registers, as well as the uncertainty
in ascertaining whether the movement and confinement
of these individuals in the bathrooms was a continuous,
uninterrupted course of conduct related to the robber-
ies or an independent criminal act, we cannot conclude
that the respondent satisfied his heavy burden in this
case. See Hinds v. Commissioner of Correction, supra,
321 Conn. 92–93 (where kidnapping and other offenses
occur closer in time to one another, it becomes more
difficult to distinguish confinement or restraint associ-
ated with kidnapping from other crimes and lack of
Salamon instruction more likely to result in harmful
error because of difficulty in determining whether each
crime had independent criminal significance); Wilcox
v. Commissioner of Correction, supra, 162 Conn. App.
743 (absence of Salamon instruction is generally more
prejudicial in cases where perpetrator’s kidnapping
related actions were closely aligned in time, place and
manner to other criminal acts). Thus, because the
respondent has not proven that the absence of a Sala-
mon instruction was harmless beyond a reasonable
doubt, the petitioner is entitled to the remedy of the
reversal of the kidnapping convictions and a remand
for a new trial on those offenses. See State v. DeJesus,
supra, 288 Conn. 434–39.
The judgment of the habeas court is reversed and
the case is remanded with direction to render judgment
granting the petition for a writ of habeas corpus, vacat-
ing the petitioner’s convictions under § 53a-92 (a) (2)
(B) and ordering a new trial on those offenses.
In this opinion PRESCOTT, J., concurred.
1
General Statutes § 53a-92 provides in relevant part: ‘‘(a) 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
The petitioner was convicted under two separate criminal cases, docket
numbers CR-XX-XXXXXXX-T and CR-XX-XXXXXXX-T, that were consolidated
for trial.
3
The petitioner received a total effective sentence of fifteen years incarcer-
ation in CR-XX-XXXXXXX-T. In CR-XX-XXXXXXX-T, the petitioner was sentenced
to a total effective sentence of ten years incarceration to be served consecu-
tively to the sentence imposed in CR-XX-XXXXXXX-T.
4
At oral argument before this court, the respondent asserted, and the
petitioner’s counsel concurred, that at the time of his convictions, the peti-
tioner was serving a sentence imposed in an unrelated case.
5
In its decision, the habeas court noted that the respondent had conceded
that ‘‘had the holding of State v. Salamon, supra, [287 Conn. 509], prevailed
in 1997, the petitioner would have been entitled to a jury instruction conform-
ing to that holding.’’ The issue of whether a Salamon instruction was required
at the petitioner’s criminal trial is not part of our consideration or analysis
in this case. See, e.g., State v. Jordan, 129 Conn. App. 215, 220, 19 A.3d 241
(where state failed to argue that Salamon did not apply, reviewing court
need only determine whether error was harmful to defendant), cert. denied,
302 Conn. 910, 23 A.3d 1248 (2011). We also note that ‘‘in State v. Fields,
302 Conn. 236, 24 A.3d 1243 (2011), our Supreme Court indicated that
whenever kidnapping and another substantive offense are charged, a Sala-
mon instruction ordinarily must be given.’’ White v. Commissioner of Correc-
tion, supra, 170 Conn. App. 425; cf. Pereira v. Commissioner of Correction,
176 Conn. App. 762, 777–78, 171 A.3d 105 (Salamon instruction not required
in case where kidnapping had been completed, and therefore was not inci-
dental to murder of victim), cert. denied, 327 Conn. 984, 175 A.3d 43 (2017).
6
On appeal, the petitioner challenges certain factual findings made by
the habeas court. Under the procedural circumstances of this case, we note
our standard of review would differ from the usual standard due to the
absence of live witnesses in the habeas trial. ‘‘Although we generally review
a trial court’s factual findings under the clearly erroneous standard, when
a trial court makes a decision based on pleadings and other documents,
rather than on the live testimony of witnesses, we review its conclusions
as questions of law. Morton Buildings, Inc. v. Bannon, 222 Conn. 49, 53–54,
607 A.2d 424 (1992) (In this case, the trial court’s determinations were based
on a record that consisted solely of a stipulation of facts, written briefs,
and oral arguments by counsel. The trial court had no occasion to evaluate
the credibility of witnesses or to assess the intent of the parties in light of
additional evidence first presented at trial. The record before the trial court
was, therefore, identical with the record before this court. In these circum-
stances, the legal inferences properly to be drawn from the parties’ definitive
stipulation of facts raise questions of law rather than of fact.); Giorgio v.
Nukem, Inc., 31 Conn. App. 169, 175, 624 A.2d 896 (1993) ([i]f . . . [t]he
trial court’s conclusions as to intent were based not on such factors as the
credibility of witnesses, or on the testimony of live witnesses as to the
meaning of documents or as to circumstances surrounding the execution
of those documents . . . but were instead based on the intent expressed in
the contract itself and the affidavits submitted with the motion for summary
judgment considered in the light of their surrounding circumstances . . .
[t]hen the legal inferences to be drawn from the documents raise questions
of law rather than of fact . . .).’’ (Internal quotation marks omitted.) State
v. Lewis, 273 Conn. 509, 516–17, 871 A.2d 986 (2005); see also State v.
Kallberg, 326 Conn. 1, 17–18, 160 A.3d 1034 (2017); C. R. Klewin Northeast,
LLC v. Bridgeport, 282 Conn. 54, 87, 919 A.2d 1002 (2007) (when trial court
makes decision based on pleadings on other documents, rather than on live
testimony of witnesses, appellate court reviews its conclusions as questions
of law and employs plenary review); cf. State v. Lawrence, 282 Conn. 141,
155–57, 920 A.2d 236 (2007) (improper for appellate court to supplement
credibility determinations of fact finder, regardless of whether fact finder
relied on cold printed record to make such determinations).
Thus, were we to review the factual findings challenged by the petitioner,
we would employ the plenary, rather than the clearly erroneous, standard
of review. We need not, however, determine whether the habeas court made
factual findings that were improper as a matter of law. Instead, we conclude
that the habeas petition should have been granted because the respondent
failed to demonstrate that the absence of the Salamon instruction was
harmless beyond a reasonable doubt regardless of whether the challenged
findings were proper.
7
After oral argument, we stayed the present appeal, sua sponte, until the
final disposition of Epps v. Commissioner of Correction, supra, 153 Conn.
App. 729. Our Supreme Court granted certification in Epps to determine,
inter alia, ‘‘[w]hether . . . in a collateral proceeding, where the petitioner
claims that the trial court erred by omitting an element of the criminal
charge in its final instructions to the jury, is harm measured in accordance
with Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed.
2d 353 (1993), or is harm measured in accordance with Neder v. United
States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999)?’’ Epps v.
Commissioner of Correction, 323 Conn. 901, 150 A.3d 679 (2016).
Under the Brecht standard, reversal of a criminal conviction is warranted
when error at the petitioner’s underlying criminal trial had a ‘‘substantial
and injurious effect or influence in determining the jury’s verdict.’’ (Internal
quotation marks omitted.) Brecht v. Abrahamson, supra, 507 U.S. 637. Under
the Neder standard, a petitioner is not entitled to habeas relief if ‘‘a reviewing
court concludes beyond a reasonable doubt that the omitted element was
uncontested and supported by overwhelming evidence, such that the jury
verdict would have been the same absent the error, the erroneous instruction
is properly found to be harmless.’’ Neder v. United States, supra, 527 U.S. 17.
Our Supreme Court dismissed Epps 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.’’ Epps v. Commissioner of Correction, 327 Conn. 482, 485, 175
A.3d 558 (2018). In the present case, at the habeas trial, there was no request
that the Brecht standard apply.
Following the release of Epps v. Commissioner of Correction, supra, 327
Conn. 482, we afforded the parties an opportunity to file supplemental briefs
addressing the question of the appropriate standard for assessing harm. The
parties filed supplemental briefs with this court on February 2, 2018. The
petitioner contends that we should follow the path of our Supreme Court
in Hinds v. Commissioner of Correction, supra, 321 Conn. 56, and Luurt-
semma v. Commissioner of Correction, supra, 299 Conn. 740, and apply
the harmlessness beyond a reasonable doubt standard. The respondent
claims that the petitioner’s claim fails under either standard or, in the alterna-
tive, this court should adopt the Brecht standard.
‘‘It is axiomatic that, [a]s an intermediate appellate court, we are bound
by Supreme Court precedent and are unable to modify it . . . . [W]e are
not at liberty to overrule or discard the decisions of our Supreme Court but
are bound by them. . . . [I]t is not within our province to reevaluate or
replace those decisions.’’ (Internal quotation marks omitted.) State v. Mad-
era, 160 Conn. App. 851, 861–62, 125 A.3d 1071 (2015). Accordingly, we will
employ the test set forth in Hinds v. Commissioner of Correction, supra,
321 Conn. 56, and Luurtsemma v. Commissioner of Correction, supra, 299
Conn. 740.
8
The dissent centers its analysis on State v. Salamon, supra, 287 Conn.
509. In that case, our Supreme Court reconsidered the interpretation of
our kidnapping statutes and required the jury instruction if the evidence
reasonably supports the finding that the restraint in a particular case was
not merely incidental to the commission of another crime. Id., 547–48.
Salamon, of course, is the necessary starting point for these types of
cases. The law, however, has developed beyond the rule established in
Salamon. As we have discussed in greater detail, the Salamon rule retroac-
tively applies to collateral proceedings on judgments rendered final prior
to Salamon. See Luurtsema v. Commissioner of Correction, supra, 299
Conn. 740. Furthermore, in habeas proceedings, such as the present case,
where a petitioner was entitled to a Salamon instruction, the burden of
establishing harmlessness beyond a reasonable doubt lies with the respon-
dent with respect to the omitted jury instruction. See Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 56. Our review of the present case,
therefore, must include the Salamon principles as considered in the context
of a habeas proceeding where the question is limited to whether the respon-
dent proved to this court that the absence of the jury instruction was
harmless beyond a reasonable doubt. See, e.g., id.; White v. Commissioner
of Correction, supra, 170 Conn. App. 415; Nogueira v. Commissioner of
Correction, supra, 168 Conn. App. 803.
9
General Statutes § 53a-119 provides in relevant part that ‘‘[a] person
commits larceny when, with intent to deprive another of property or to
appropriate the same to himself or a third person, he wrongfully takes,
obtains or withholds such property from an owner. . . .’’
10
We also conclude that the respondent’s reliance on our decision in State
v. Golder, 127 Conn. App. 181, 14 A.3d 399, cert. denied, 301 Conn. 912, 19
A.3d 180 (2011), is misplaced. In that case, the defendant entered the victim’s
Greenwich home for the purpose of stealing jewelry. Id., 183–84. He grabbed
the victim, picked her up and asked where he could find the jewelry. Id.,
184. The defendant grabbed the victim in a ‘‘bear hug’’ and carried her to
kitchen, where he seized a bag of jewelry. (Internal quotation marks omitted.)
Id. He then told the victim that he would place her in the basement; however,
after she informed him of her asthma and claustrophobia, he instead took
her to the bedroom and tied her to the bed with her husband’s neckties. Id.
The defendant then took her car keys and departed. Id. After approximately
twenty-five minutes, the victim freed herself and called the police. Id.,
184–185.
The defendant subsequently was convicted of various kidnapping, larceny
and burglary offenses. Id., 187. In his direct appeal, the defendant claimed
that the failure to provide the jury with a Salamon instruction constituted
reversible error. Id., 187–88. We disagreed. ‘‘Here, the victim was restrained
to an extent exceeding that which was necessary to accomplish or to com-
plete the other crime, and restraining [the victim] was not necessary for
the defendant to accomplish any crime. Therefore, the holding of Salamon
does not control this case.’’ (Footnote omitted.) Id., 190. Specifically, we
reasoned that the crime of burglary had been completed when he entered
the victim’s home with the intent to take the jewelry. Id. After the completion
of that crime, the defendant then moved the victim to the bedroom and tied
her to the bed with her husband’s neckties. Id. ‘‘While this restraint facilitated
the defendant’s escape, it was not necessary to accomplish the burglary,
which already had been completed. We conclude that the restraint that
occurred after the defendant took the jewelry from the kitchen closet had
its own independent significance.’’ Id., 190–91.
Golder is distinguishable from the present case. In the former, we deter-
mined that the underlying crime of burglary had been completed, and there-
fore the subsequent restraint of the victim constituted the independent crime
of kidnapping. Furthermore, the restraint in that case lasted for a greater
period of time, approximately twenty-five minutes, as compared to the
relatively brief time periods in the present case. The defendant in Golder
also physically moved the victim among several rooms and tied her to the
bed. Id., 184–85. This level of restraint stands in marked contrast to the
present case, where the petitioner moved the employees from areas near
the cash register to bathrooms, from which they easily escaped following
the petitioner’s departure. Cf. Nogueira v. Commissioner of Correction,
supra, 168 Conn. App. 842 (petitioner’s asportation of victim to window
well, essentially a deep hole, limited her escape options and acted as second
level of restraint). Because the jury reasonably could conclude that the
movement and confinement of the employees were part of the robberies of
the two stores, the failure to provide a Salamon instruction constituted
harmful error, and the respondent’s reliance on Golder is misplaced.
11
The dissent misreads White v. Commissioner of Correction, supra, 170
Conn. App. 433–35, to suggest that ‘‘there cannot be a finding of harmless
error so long as the underlying crime is still ongoing and continuing . . . .’’
We do not read White so broadly. The discussion in White about the duration
of the underlying burglary was in response to the particular arguments
raised by the respondent in that case. See id.
12
In Fields, our Supreme Court stated: ‘‘On the contrary [to the state’s
argument], restraint may be used in the commission of the underlying
offense, including assault, as in the present case, even though it is not an
element of that offense. Thus, depending on the facts of the underlying
crime, the fact finder reasonably might conclude that the kidnapping was
merely incidental to the underlying crime irrespective of whether that crime
requires the use of restraint. A Salamon instruction is necessary in such
cases to ensure that the defendant is convicted of kidnapping only when
the restraint that forms the basis of the kidnapping charge has criminal
significance separate and apart from that used in connection with the under-
lying offense.’’ State v. Fields, supra, 302 Conn. 248.
13
The dissent contends that we have expanded ‘‘the definition of the
word ‘necessary’ to apply to conduct that was unnecessary to complete the
robberies, but simply made their completion easier.’’ As we discuss in greater
detail in Bell v. Commissioner of Correction, 184 Conn. App. 150, 171–72
n.11, A.3d (2018), the asportation of the victim in Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 80, was not necessary for the comple-
tion of sexual assault. Nevertheless, our Supreme Court determined that
the petitioner in that case was entitled to a new trial based on consideration
of the Salamon factors, primarily minimal movement of the victim and the
fact that the multiple offenses occurred in a compressed time span. Id., 93–94.
14
Our use of the phrase ‘‘de minimis’’ refers to the brief distance and
relatively short period of time between the robbery and the restraint and
confinement of the three employees and Feltman by the petitioner, when
compared to other cases addressing a conviction for kidnapping and another
crime. See, e.g., State v. Hampton, supra, 293 Conn. 463–64 (defendant
confined victim in car and drove her around for three hours prior to sexual
assault). We do not ignore or minimize the increased fear experienced by
the four victims in this case at the hands of the petitioner. See Hinds v.
Commissioner of Correction, supra, 321 Conn. 80 n.15; State v. Flores,
supra, 301 Conn. 88.