White v. Commissioner of Correction ( 2017 )

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PHILLIP WHITE III v. COMMISSIONER
OF CORRECTION
(AC 38453)
Alvord, Prescott and Mihalakos, Js.
Argued October 18, 2016—officially released January 31, 2017
(Appeal from Superior Court, judicial district of
Tolland, Oliver, J.)
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Susann E. Gill, former supervisory assistant
state’s attorney, Craig P. Nowak, senior assistant state’s
attorney, and Yamini Menon, special deputy assistant
state’s attorney, for the appellant (respondent).
Wade Luckett, assigned counsel, with whom, on the
brief, was Walter C. Bansley IV, assigned counsel, for
the appellee (petitioner).
Opinion
PRESCOTT, J. The respondent, the Commissioner of
Correction, appeals from the summary judgment ren-
dered by the habeas court in favor of the petitioner,
Phillip White III, granting his amended petition for a
writ of habeas corpus.1 On appeal, the respondent
claims that the habeas court improperly granted the
petition after concluding that the jury in the petitioner’s
underlying criminal case should have been instructed
on the intent and conduct necessary to find the peti-
tioner guilty of kidnapping in accordance with State v.
Salamon, 287 Conn. 509, 550, 949 A.2d 1092 (2008).
Having thoroughly reviewed the record, we conclude
that the habeas court properly granted the amended
petition for a writ of habeas corpus, and, accordingly,
we affirm the judgment.
The following facts, as set forth by this court in the
petitioner’s direct criminal appeal, and procedural his-
tory are relevant to this appeal. ‘‘On June 24, 2003, the
[teenage] complainant was alone inside her parents’
home in the town of Fairfield. At approximately 4 p.m.,
the [petitioner] approached the front door and rang the
doorbell. The complainant answered the door, and the
[petitioner] informed her that he was selling magazine
subscriptions to earn money for college. The [peti-
tioner] asked the complainant to look at a brochure to
determine if she was interested in purchasing any of
the magazines. The complainant informed the [peti-
tioner] that she could not purchase anything because
her parents were not home. She recommended that he
return sometime around 6 p.m. when her parents would
be home from work.
‘‘The [petitioner] asked the complainant if he could
use the bathroom. The complainant hesitated. The [peti-
tioner] explained that he really had to use the bathroom.
Without invitation, the [petitioner] brushed by the com-
plainant, who was standing in the doorway, and walked
straight down the hallway of the foyer toward the bath-
room located off the kitchen. The [petitioner] remained
in the bathroom for approximately thirty seconds. When
he emerged from the bathroom, the [petitioner] walked
slowly toward the complainant. While the [petitioner]
was in the bathroom, the complainant did not hear
the bathroom door shut or the water running from the
bathroom plumbing. The complainant remained near
the front doorway while the [petitioner] was in the
bathroom.
‘‘The [petitioner], again, asked the complainant to
look at the magazine brochure. The complainant briefly
looked at the brochure, handed it back to the [peti-
tioner] and told him that she had not heard of any of
the magazines on the list. The [petitioner] took the
brochure, walked toward the [front] door and closed
[it]. Placing his hand in the rear pocket of his trousers,
the [petitioner] told the complainant that he had a gun
and ordered her to sit on a couch in the den adjacent
to the foyer. The complainant entered the den and sat
on the couch closest to the foyer. The [petitioner] asked
her what time her parents would arrive home. Though
the complainant had told him earlier that her parents
would be home at approximately 6 p.m., this time she
told the [petitioner] that they would arrive at approxi-
mately 5:30 p.m., hoping that he would believe that
her parents would arrive sooner. The [petitioner] then
asked if anyone else was home, and she told him that
no one else was home at the time.
‘‘After approximately three minutes, the [petitioner]
told the complainant to stand up because he wanted
to go upstairs. Walking sideways facing the complain-
ant, the [petitioner] slowly approached the stairwell
just off the den. After taking several slow steps, the
[petitioner] placed his hand on the complainant’s elbow
to hurry her along. As the [petitioner] touched the com-
plainant’s arm, she began to scream and cry. The [peti-
tioner] told the complainant to be quiet, and she
attempted to leave the house via the front door. The
[petitioner] blocked the doorway, as the complainant
continued to scream. The [petitioner] suddenly stopped
and said that he was just playing. The [petitioner] then
called the complainant a ‘scaredy-ass,’ opened the front
door and ran out of the house. Approximately ten
minutes elapsed from the time the [petitioner] first
arrived at the home to the time that he departed.
‘‘The complainant closed the door and locked it. She
immediately called a friend, who lived up the street,
to warn her that the [petitioner] was running in her
direction. She was unable to contact her friend. The
complainant then unsuccessfully called both of her par-
ents. Finally, she reached her boyfriend by telephone
and told him what had happened. She then called the
police and gave a brief description of the [petitioner].
‘‘Within approximately ten minutes, Officer Joseph
Kalson of the Fairfield police department arrived at the
home. The complainant again gave a description of the
[petitioner], and Kalson broadcast over the police radio
that the original description was correct. Officer Chris-
topher Ioli of the Fairfield police department also
responded to the call. Ioli observed the [petitioner] jog-
ging on a street. By the time that Ioli had turned his
vehicle around and turned down that street, the [peti-
tioner] was sitting on the front lawn of a house.
According to Ioli, the [petitioner] was sweating and
appeared slightly nervous. Ioli conducted a patdown
search for weapons but found none. The complainant
was transported to that location, where she identified
the [petitioner], and the [petitioner] was taken into cus-
tody.’’ State v. White, 97 Conn. App. 763, 766–68, 906
A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476
(2006).
Following a jury trial, the petitioner was convicted
of kidnapping in the second degree with a firearm in
violation of General Statutes § 53a-94a (a)2 and burglary
in the second degree with a firearm in violation of
General Statutes § 53a-102a (a).3 He was sentenced by
the trial court to fifteen years incarceration on the kid-
napping charge and ten years incarceration on the bur-
glary charge, both sentences to run concurrently, for a
total effective sentence of fifteen years. On direct
appeal, this court affirmed the petitioner’s kidnapping
conviction, but reversed the petitioner’s burglary con-
viction on the ground that the trial court improperly
declined to instruct the jury on the lesser included
offense of criminal trespass in the second degree. State
v. White, supra, 97 Conn. App. 765. After this court
remanded the case for a new trial on the burglary
charge, the state, on January 25, 2007, nolled that
charge.
The petitioner subsequently filed his first habeas
action, in which he alleged ineffective assistance of
counsel. After a trial, the habeas court denied in part
and granted in part the petition for a writ of habeas
corpus, restoring the petitioner’s right to sentence
review. White v. Warden, Superior Court, judicial dis-
trict of Tolland, Docket No. CV-04-4000100-S (October
15, 2007). On appeal, this court affirmed that judgment
of the habeas court. White v. Commissioner of Correc-
tion, 113 Conn. App. 901, 964 A.2d 1261, cert. denied,
293 Conn. 904, 976 A.2d 705 (2009). After the petitioner
applied for sentence review, his sentence was affirmed.
State v. White, Superior Court, judicial district of Fair-
field, Docket No. CR-03-190578-T (February 2, 2009).
On January 5, 2015, in a second habeas action, the
petitioner filed an amended petition, alleging a violation
of his due process rights under our federal and state
constitutions in light of our Supreme Court’s decisions
in State v. Salamon, supra, 287 Conn. 509, and Luurt-
sema v. Commissioner of Correction, 299 Conn. 740,
12 A.3d 817 (2011). The petitioner claimed that the trial
court did not properly instruct the jury as to the charge
of kidnapping because, pursuant to Salamon, a defen-
dant cannot be convicted of kidnapping in conjunction
with another crime if the confinement or movement
necessary to support the kidnapping charge is merely
incidental to the commission of the other crime.4 State
v. Salamon, supra, 546–47.
On February 5, 2015, the petitioner filed a motion for
summary judgment on his amended petition pursuant
to Practice Book § 23-37,5 which was accompanied by
a memorandum of law in support. On March 9, 2014,
the respondent filed an objection to the motion. Oral
argument on the motion was heard on June 1, 2015,
and both sides stipulated to the habeas court treating
the June 1 argument as a full habeas trial on the papers.6
Thereafter, the habeas court granted the petitioner’s
motion for summary judgment and, in turn, his amended
petition for a writ of habeas corpus. In its memorandum
of decision dated September 10, 2015, the court sum-
marily concluded that the petitioner was entitled to an
instruction on the kidnapping charge in a manner that
comports with Salamon, and, in a more lengthy analy-
sis, concluded that the lack of the proper instruction
was not harmless error. The habeas court subsequently
granted the respondent’s petition for certification to
appeal, and this appeal followed.
The respondent claims that the habeas court improp-
erly concluded that the petitioner was entitled to an
incidental restraint instruction on the kidnapping
charge in accordance with Salamon. The respondent
then argues that, even if an incidental restraint instruc-
tion should have been given, the habeas court improp-
erly concluded that the trial court’s failure to give the
instruction was harmful error. We disagree.
As an initial matter, we set forth the applicable stan-
dard of review and principles of law. ‘‘Practice Book
§ 23-37 provides in relevant part that a habeas court
may grant summary judgment if the pleadings, affidavits
and any other evidence submitted show that there is
no genuine issue of material fact between the parties
requiring a trial and the moving party is entitled to
judgment as a matter of law. On review from the grant-
ing of a motion for summary judgment, our task is to
determine whether the court correctly determined that
the moving party was entitled, as a matter of law, to
summary judgment on the basis of the absence of any
genuine issues of material fact requiring a trial. Because
this inquiry requires a legal determination, our review
is plenary.’’ (Internal quotation marks omitted.) Eric
M. v. Commissioner of Correction, 153 Conn. App. 837,
842–43, 108 A.3d 1128 (2014), cert. denied, 315 Conn.
915, 106 A.3d 308 (2015).
‘‘In Salamon, [our Supreme Court] reconsidered our
long-standing interpretation of our kidnapping statutes,
General Statutes §§ 53a-91 through 53a-94a. . . . The
defendant [in Salamon] had assaulted the victim at a
train station late at night, and ultimately was charged
with kidnapping in the second 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. . . .
‘‘[Our Supreme Court thus] reexamined our long-
standing interpretation of the kidnapping statutes to
encompass even restraints that merely were incidental
to and necessary for the commission of another sub-
stantive offense, such as robbery or sexual assault. . . .
[Our Supreme Court] ultimately concluded that [o]ur
legislature . . . intended to exclude from the scope of
the more serious crime of kidnapping and its accompa-
nying severe penalties those confinements or move-
ments of a victim that are merely incidental 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 liberation for a longer
period of time or to a greater degree than that which
is necessary to commit the other crime.’’ (Citations
omitted; internal quotation marks omitted.) State v.
Hampton, 293 Conn. 435, 459–60, 988 A.2d 167 (2009).
The court in Salamon explained that ‘‘a defendant
may be convicted of both kidnapping and another sub-
stantive crime if, at any time prior to, during or after
the commission of that other crime, the victim is moved
or confined in a way that had independent criminal
significance, that is, the victim was restrained to an
extent exceeding that which was necessary to accom-
plish or complete the other crime. Whether the move-
ment or confinement of the victim is merely incidental
to and necessary for another crime will depend on the
particular facts and circumstances of each case. Conse-
quently, when the evidence reasonably supports a find-
ing that the restraint was not merely incidental to the
commission of some other, separate crime, the ultimate
factual determination must be made by the jury.’’
(Emphasis omitted; footnote omitted.) State v. Sala-
mon, supra, 287 Conn. 547–48.
At the close of evidence in the petitioner’s underlying
criminal case, and in accordance with our pre-Salamon
case law, the trial court instructed the jury in relevant
part: ‘‘A person is guilty of kidnapping in the second
degree with a firearm when he commits kidnapping in
the second degree and in the commission of such
offense he represents by his words and conduct that
he possesses a firearm. A person is guilty of kidnapping
in the second degree when he abducts another person.
. . . Abduct means to restrain a person with intent to
prevent her liberty by either secreting or by hiding her
in a place where she is not likely to be found or by using
or threatening to use physical force or intimidation.
Restrain means to restrict a person’s movement inten-
tionally or unlawfully in such a manner as to interfere
substantially with her liberty by moving her from one
place to another or by confining her either in the place
where the restriction commences or to a place to which
she has been moved without consent. . . . There is
no special requirement that the restraint be for any
particular length of time or that the victim be moved
over any particular distance.’’ No instruction setting
forth the principle of incidental restraint, namely, an
instruction designed to ensure that the defendant could
be convicted of kidnapping only if the restraint that
formed the basis of the kidnapping charge had criminal
significance separate and apart from that necessarily
used in connection with the burglary offense, was given
to the jury.7
In this appeal, the respondent claims in his brief,
and asserted at oral argument, that the habeas court
improperly concluded that a Salamon incidental
restraint instruction was required under the particular
facts of this case. In doing so, the respondent relies
upon State v. Golder, 127 Conn. App. 181, 14 A.3d 399,
cert. denied, 301 Conn. 912, 19 A.3d 180 (2011), a case in
which this court held that the evidence did not warrant a
Salamon instruction on the kidnapping charge because
the restraint used by the defendant was not necessary
or incidental to the other charged offense of burglary.
Id., 190–91. We are not persuaded by this argument for
two reasons.
First, in State v. Fields, 302 Conn. 236, 24 A.3d 1243
(2011), our Supreme Court indicated that whenever kid-
napping and another substantive offense are charged,
a Salamon instruction ordinarily must be given. Id.,
247; see also State v. Hampton, supra, 293 Conn. 462
(implicitly accepting defendant’s argument that Sala-
mon instruction required when defendant is charged
with both kidnapping and offense separate from kidnap-
ping). Thus, because the petitioner here was charged
with both kidnapping as well as the substantive offense
of burglary, Fields instructs us to conclude that the
Salamon instruction should have been given automati-
cally to the jury. We note that this court in Golder did
not have the guidance of our Supreme Court’s decision
in Fields because Fields was decided approximately
five months after we officially released our decision in
Golder. See State v. Fields, supra, 237 (officially
released August 30, 2011); State v. Golder, supra, 127
Conn. App. 181 (officially released March 8, 2011).
Second, Golder is distinguishable from the present
case on its facts. In Golder, the defendant entered the
victim’s residence with the intent to steal her jewelry.
State v. Golder, supra, 127 Conn. App. 183–84. Upon
unexpectedly encountering the victim inside the resi-
dence as she walked toward her bedroom, the defen-
dant grabbed her, moved her to the kitchen while
holding her in a ‘‘ ‘bear hug,’ ’’ released her, and took
a bag of jewelry from the closet. Id., 184. At that point,
the defendant told the victim that he was going to have
to put her in the basement, but changed his mind and
moved her instead to the bedroom after the victim told
him she was claustrophobic and asthmatic. Id. The
defendant then ‘‘asked if she had any rope. [The victim]
responded that she did not have any, so the defendant
took some neckties belonging to [the victim’s] husband
and ‘hog-tied’ her to the bed. The defendant then asked
[the victim] where she kept her car and where the keys
for it were located. [The victim] told him the keys were
in her pocketbook, and the defendant went into the
kitchen. [The victim] attempted to release herself from
the bed, and the defendant returned to ask [the victim]
if the car had an alarm. When the defendant left for the
second time, [the victim] freed herself and called 911.
[The victim] was tied to the bed for a total of twenty
to twenty-five minutes.’’ Id., 184–85.
In Golder, the nature and duration of the victim’s
movement and confinement that occurred after the
defendant stole the jewelry from the kitchen closet is
far more significant than that which occurred in the
case at hand. The victim in Golder was physically moved
between several different rooms in the house, and ulti-
mately was forced to have all of her limbs bound and
tied to the bed while the defendant escaped the resi-
dence, leaving her to her own fate. In contrast, the
complainant in the instant case was only briefly, and
not aggressively, physically touched by the petitioner,
and was ordered to sit on a couch for a brief period of
time. Moreover, the total length of time that the victim
in Golder was hog-tied to the bed, which does not even
account for the length of time beforehand that the
defendant spent moving her around the residence and
stealing her jewelry, was more than twice the length
of time that the petitioner in the present case spent
inside the complainant’s residence from start to finish.
Accordingly, it is much less clear here, as opposed
to the facts in Golder, that the restraint used by the
petitioner had its own ‘‘independent criminal signifi-
cance, that is, the victim was restrained to an extent
exceeding that which was necessary to accomplish or
complete the [burglary].’’ State v. Salamon, supra, 287
Conn. 547. For all of these reasons, we conclude that
the habeas court properly concluded that the petitioner
was entitled to a Salamon incidental restraint instruc-
tion on the kidnapping charge.
Having decided that the habeas court properly deter-
mined that the petitioner was entitled to a jury instruc-
tion on incidental restraint, we next turn to whether
the failure to give such an instruction was harmful. ‘‘In
[Luurtsema v. Commissioner of Correction, supra, 299
Conn. 770], the court indicated that the proper standard
to [assess whether the omission of a Salamon instruc-
tion requires reversal of the petitioner’s kidnapping con-
viction] would be the harmless error standard applied
on direct appeal. . . . On direct appeal, [i]t is well
established that a defect in a jury charge which raises
a constitutional question is reversible error if it is rea-
sonably possible that, considering the charge as a
whole, the jury was misled. . . . [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.8 . . . A jury instruction that improp-
erly omits an essential element from the charge consti-
tutes harmless error [only] if a reviewing court
concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelm-
ing evidence, such that the jury verdict would have
been the same absent the error. . . . The failure to
charge in accordance with Salamon is viewed as an
omission of an essential element . . . and thus gives
rise to constitutional error. . . . [T]his standard
imposes the burden of persuasion exclusively on the
state . . . .’’ (Citations omitted; emphasis altered; foot-
note added; internal quotation marks omitted.) Hinds
v. Commissioner of Correction, 321 Conn. 56, 77–78,
136 A.3d 596 (2016).
Salamon makes clear that if the evidence regarding
the perpetrator’s intent—that is, whether he or she
intended ‘‘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’’—is susceptible
to more than one interpretation, that question is one
for the jury. State v. Salamon, supra, 287 Conn. 542.
As previously mentioned, ‘‘[a] defendant may be con-
victed of both kidnapping and another substantive
crime if, at any time prior to, during or after the commis-
sion 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 accomplish or complete
the other crime. Whether the movement 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. . . . For purposes of mak-
ing that determination, the jury should be instructed
to consider the various relevant factors, including the
nature and duration of the victim’s movement or con-
finement by the defendant, whether that movement or
confinement occurred during the commission 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 defendant’s risk of
detection and whether the restraint created a significant
danger or increased the victim’s risk of harm indepen-
dent of that posed by the separate offense.’’ (Footnote
omitted.) Id., 547–48.
On the basis of our review of the record in the present
case, we conclude that the improper instruction was
not harmless, because the respondent has failed to per-
suade us beyond a reasonable doubt that the omission
of an instruction on incidental restraint did not contrib-
ute to the verdict. In doing so, we consider the various
relevant factors set forth in Salamon.9
With regard to the first relevant factor, the respon-
dent argues that the petitioner’s confinement and move-
ment of the complainant was not de minimus. The
petitioner disagrees with the respondent’s contention,
citing that the confinement lasted only a matter of
minutes and that any movement took place over a short
distance. We agree with the petitioner that this factor
weighs in his favor.
We first note that in Hinds v. Commissioner of Cor-
rection, supra, 321 Conn. 92–93, our Supreme Court
attempted to categorize various Salamon 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 (2011)] (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 instruction
harmless—when the offenses are separated by greater
time spans, or by more movement or restriction 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 substan-
tive crime. The failure to give a proper Salamon instruc-
tion in those scenarios is more likely to result in harmful
error precisely because of the difficulty in determining
whether each crime has independent criminal signifi-
cance. 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, [301 Conn. 77,
89, 17 A.3d 1025 (2011)] (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)].’’ (Internal quotation marks
omitted.)
The instant case resembles the latter line of cases,
rather than the former, in that the burglary was commit-
ted in close temporal proximity to the alleged kidnap-
ping and any confinement/movement was limited in
nature and distance. The complainant’s encounter with
the petitioner in this case, from the time he first
appeared at her front door until the time he ran out of
the residence, lasted about ten minutes. As for the
nature of the restraint, the complainant testified that
she was confined to the couch for approximately three
minutes after the petitioner indicated he had a gun and
ordered her to sit, and that the only physical contact
between her and the petitioner occurred when he
briefly, and without much force, touched her elbow in
an effort to ‘‘hurry [her] along upstairs.’’ At that point,
the complainant began crying and screaming, and the
contact stopped. Moreover, the events took place in a
single location—the complainant’s residence—and the
distance over which the complainant testified she was
ordered by the petitioner to move consisted of mere
feet.10 Given that the two offenses were not separated
by a significant time span or by much movement, it is
difficult for us to conclude that the jury would have
necessarily made the factual determination that the
restraint involved in the alleged kidnapping was not
merely incidental or de minimus to the separate crime
of burglary.
We next address the second relevant Salamon factor,
that is, whether the movement or confinement occurred
during the commission of the separate offense. The
respondent argues that the absence of a Salamon
instruction did not contribute to the kidnapping verdict
here because the burglary had been completed prior
to the petitioner’s conduct comprising the kidnapping.
More specifically, he argues that the offense of second
degree burglary was completed ‘‘once there [was] an
unlawful entering or remaining in a building with the
intent to commit a crime [therein]’’; (internal quotation
marks omitted) State v. Ayala, 133 Conn. App. 514, 522,
36 A.3d 274, cert. denied, 304 Conn. 913, 40 A.3d 318
(2012); and ‘‘the petitioner gestured to his back pocket
and told the [complainant] he had a gun.’’ Therefore,
he argues, any additional action the petitioner took
after he represented by his words or conduct that he
possessed a firearm—e.g., ordering the complainant to
sit on the couch, instructing her to move upstairs, touch-
ing her elbow in an attempt to get her to move faster—
was not necessary to accomplish the already concluded
offense of burglary. We do not find this unduly legalistic
line of reasoning persuasive.
The respondent’s syllogism fails to recognize that the
jury could have viewed the petitioner’s actions here
as a continuous, uninterrupted course of conduct all
relating to the burglary offense. See Hinds v. Commis-
sioner of Correction, supra, 321 Conn. 79 (holding fail-
ure to give Salamon instruction harmful when
petitioner’s actions were ‘‘a continuous, uninterrupted
course of conduct’’). As this court recently emphasized
in a related context, ‘‘although liability for a burglary
premised on an unlawful entry attaches upon a defen-
dant crossing the threshold; see State v. Little, [194
Conn. 665, 675, 485 A.2d 913 (1984)] . . . ; authority
exists that a burglary, once begun, continues until all
parties participating in the burglary have left the prop-
erty. See 12A C.J.S. 207, Burglary § 55 (2014) (‘burglary
does not end when a burglar enters the premises, but
continues for as long as the burglar is on the premises
with the intent to commit the crime’), citing Flanders
v. Meachum, 13 F.3d 600, 603 (2d Cir. 1994) (applying
Connecticut law); see also 12A C.J.S., supra, p. 138
(liability of aider or abetter ‘is consider[ed] ongoing
during the time that the perpetrator remains inside the
structure’); 40 C.J.S. 481, Homicide § 62 (2014) (‘[a]
burglary is deemed to be in progress, for purposes of
a felony-murder charge, while the burglar is on the
premises’).’’ (Emphasis altered.) State v. Johnson, 165
Conn. App. 255, 293, 138 A.3d 1108, cert. denied, 322
Conn. 904, 138 A.3d 933 (2016).11
In the instant case, although the respondent’s argu-
ment regarding the point in time at which all the ele-
ments for burglary were satisfied and thus criminal
liability attached may technically be true,12 the jury
could have deemed the burglary to be in progress 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. See id. This is especially
true under the facts of this case because the underlying
crime that formed the basis of the petitioner’s intent
for his burglary charge was never completed,13 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. In fact,
the state implied as much during closing arguments,
stating: ‘‘[T]o determine his intention at the time that
he remained in the home, look at his actions. Look at
the [petitioner] ordering [the complainant] into the den.
Look at his statement to her, ‘Be quiet or I’ll shoot.’
Look at his statement, ‘I want to go upstairs now.’ Look
at his actions in taking her by the elbow and leading her
toward the stairs. And that is how, ladies and gentlemen,
you determine someone’s intent.’’ (Emphasis added.)
Accordingly, we are unable to conclude that, had the
jury been instructed properly, it would have made the
factual determination that the petitioner’s actions in
confining or moving the complainant did not occur dur-
ing the commission of the burglary.
With regard to the third relevant Salamon factor,
namely, whether the restraint was inherent in the nature
of the separate offense, the respondent argues that the
petitioner actually utilized no restraint in the course of
committing the burglary. In response, the petitioner
argues that the jury could have found that restraint was
inherent in the nature of the burglary here. We, again,
agree with the petitioner that this factor weighs in
his favor.
In State v. Fields, supra, 302 Conn. 236, 247–48, in
which the defendant was charged in relevant part with
kidnapping and assault, our Supreme Court expressly
rejected the notion that the rationale of Salamon is not
implicated merely because restraint of the victim is not
an essential element of the other substantive offense
charged along with kidnapping. Our Supreme Court
stated: ‘‘On the contrary, restraint may be used in the
commission of the [other substantive] offense . . .
even though it is not an element of that offense. Thus,
depending on the facts of the [other substantive] crime,
the fact finder reasonably might conclude that the kid-
napping was merely incidental to the [other substantive]
crime irrespective of whether that crime [inherently]
requires the use of restraint. . . . Although it is true,
of course, that not every assault involves an appreciable
restraint of the victim, many do, and, in those circum-
stances, we see no reason why a defendant should be
denied the benefit of a Salamon instruction simply
because the state is not required to prove restraint of the
victim as an element of the assault.’’ (Citations omitted.)
Id., 248–49.
Because restraint is not an essential element of bur-
glary in the second degree with a firearm; see General
Statutes §§ 53a-102a (a) and 53a-102 (a); the relevant
question becomes whether restraint was inherent in
the nature of the burglary in this particular case. As
previously mentioned, the crime underlying the charge
of burglary was never identified at trial,14 much less
ever completed by the petitioner. Because it is not clear
what underlying crime the petitioner intended to com-
mit when he unlawfully entered the house, the jury
conceivably could have interpreted the petitioner’s con-
finement and movement of the complainant in several
different ways. For instance, the jury may have viewed
the petitioner’s attempt to have the complainant go
upstairs with him as an indication that he wanted to
sexually assault her, or as an indication that he wanted
to rob her of jewelry.15 The jury could have concluded
that either of these underlying offenses inherently
involved restraint by virtue of its nature. In short, with-
out knowing the jury’s specific theory of the case on
which it convicted the petitioner of burglary, we have
no way of determining whether the jury would have
found that the restraint used here was inherent in the
crime underlying the burglary.
With regard to the remaining Salamon factors, the
respondent argues that the restraint utilized by the peti-
tioner here prevented the complainant from summoning
assistance, reduced the petitioner’s risk of detection,
and created a significant danger or increased the com-
plainant’s risk of harm independent of that posed by
the separate offense. As to the final factor, that is,
whether the restraint created a significant danger or
increased the complainant’s risk of harm independent
of that posed by the separate offense, it does not appear
likely that the jury could conclude that the restraint
here was especially dangerous, as the restraint was
generally not physical or aggressive in nature, there
was no proof the petitioner actually possessed a gun,
the restraint did not persist for a long period of time,
and the restraint took place in a single location—the
complainant’s own home. On the other hand, assuming
that the jury credited the entirety of the complainant’s
trial testimony, we agree with the respondent that the
additional two factors—whether the restraint utilized
by the petitioner prevented the complainant from sum-
moning assistance and reduced the petitioner’s risk of
detection—do not weigh in the petitioner’s favor, given
that the complainant ‘‘attempt[ed] to go toward the
front door to get away’’ but was unable to escape
because the petitioner had blocked the exit. To the
extent that these cut in favor of the respondent, how-
ever, they do not trump the significance of the
remaining factors that weigh in favor of the petitioner.
In light of all of these considerations, we cannot con-
clude ‘‘beyond a reasonable doubt that the omitted ele-
ment was uncontested and supported by overwhelming
evidence, such that the jury verdict would have been
the same absent the error . . . .’’ (Internal quotation
marks omitted.) Hinds v. Commissioner of Correction,
supra, 321 Conn. 79. In other words, a properly
instructed jury reasonably could conclude that the peti-
tioner’s intention in confining and moving the complain-
ant was merely in furtherance of his commission of
the crime of burglary. Under the deficient instruction,
however, the jury effectively was compelled to con-
clude that the petitioner committed kidnapping once
it credited the complainant’s account. Ultimately, the
respondent has not proven that the omission of the
Salamon instruction was harmless beyond a reasonable
doubt. See id., 77–78. Accordingly, the petitioner is enti-
tled to relief under our established harmless error
standard.16
Finally, we acknowledge that the habeas court, in
fashioning a remedy, ordered that the burglary charge
against the petitioner be reinstated. Because a nolle on
the burglary charge was previously entered by the state
nearly ten years ago, this raises significant double jeop-
ardy concerns on remand.17 Those concerns, however,
are beyond the scope of the present appeal. We, there-
fore, leave resolution of that issue to further proceed-
ings in the trial court.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The habeas court granted the respondent’s petition for certification to
appeal from the judgment.
2
General Statutes § 53a-94a (a) provides in relevant part: ‘‘A person is
guilty of kidnapping in the second degree with a firearm when he commits
kidnapping in the second degree, as provided in section 53a-94, and in the
commission of such offense he uses or is armed with and threatens the use
of or uses or displays or represents by his words or conduct that he possesses
a pistol, revolver, machine gun, shotgun, rifle or other firearm. . . .’’ In turn,
General Statutes § 53a-94 provides in relevant part: ‘‘(a) A person is guilty
of kidnapping in the second degree when he abducts another person. . . .’’
3
General Statutes § 53a-102a (a) provides in relevant part: ‘‘A person is
guilty of burglary in the second degree with a firearm when he commits
burglary in the second degree as provided in section 53a-102, and in the
commission of such offense he uses or is armed with and threatens the use
of or displays or represents by his words or conduct that he possesses a
pistol, revolver, rifle, shotgun, machine gun or other firearm. . . .’’ In turn,
General Statutes § 53a-102 (a) provides: ‘‘A person is guilty of burglary in
the second degree when such person enters or remains unlawfully in a
dwelling, while a person other than a participant in the crime is actually
present in such dwelling, with intent to commit a crime therein.’’
4
Our Supreme Court in Luurtsema held that the rule announced in Sala-
mon retroactively applied to collateral attacks on final judgments. See Luurt-
sema v. Commissioner of Correction, supra, 299 Conn. 773. Because the
petitioner in the instant case was convicted of kidnapping in 2004, and the
Salamon decision was not released until 2008, the rule would have to be
applied retroactively in this case.
5
Practice Book § 23-37 provides: ‘‘At any time after the pleadings are
closed, any party may move for summary judgment, which shall be rendered
if the pleadings, affidavits and any other evidence submitted show that there
is no genuine issue of material fact between the parties requiring a trial and
the moving party is entitled to judgment as a matter of law.’’
6
The parties also agreed to stipulate to, and admit as full exhibits, the
criminal trial transcripts dated January 12 and 13, 2004, from the petitioner’s
underlying criminal case.
7
Moreover, during closing arguments, the prosecutor did not attempt to
clearly distinguish for the jury the timing of all the acts comprising the
offense of burglary from the timing of all the acts comprising the offense
of kidnapping, stating: ‘‘There is no time requirement under the law, and
His Honor will so instruct you. The length of time does not lessen the trauma
of these events to [the complainant]. Use your common sense. When you
are held at gunpoint, presumably gunpoint, for one minute or twenty minutes,
it doesn’t erase the fact of the crime. There is no time element.’’
8
Although the respondent recognizes that this court is bound by this
standard in determining the present claim; see Hinds v. Commissioner of
Correction, 321 Conn. 56, 77–78, 136 A.3d 596 (2016); the respondent dis-
agrees with the application of the ‘‘harmless beyond a reasonable doubt’’
standard on collateral review, and expressly preserves an objection to this
standard in such cases. We recognize that our Supreme Court recently
granted certification to appeal in Epps v. Commissioner of Correction, 153
Conn. App. 729, 104 A.3d 760 (2014), cert. granted, 323 Conn. 901, A.3d
(2016), limited, in part, to determining the proper harmless error standard
in a claim regarding the failure of the trial court to provide a Salamon
incidental restraint instruction. At present, however, we are bound to apply
the ‘‘harmless beyond a reasonable doubt’’ standard in accordance with
Supreme Court precedent. See Stuart v. Stuart, 297 Conn. 26, 45–46, 996
A.2d 259 (2010) (‘‘it is manifest to our hierarchical judicial system that [our
Supreme Court] has the final say on matters of Connecticut law and that
the Appellate Court . . . [is] bound by [its] precedent’’).
9
Although we recognize that the factors enumerated in Salamon are not
intended to constitute an exhaustive list of the possible factors that may
be relevant in a given case, the parties have not identified any other factors
relevant to the present case, and, thus, we limit our discussion to those
factors expressly identified in Salamon.
10
Specifically, during her direct examination, the following exchange took
place between the complainant and the prosecutor:
‘‘Q. What happened after that time . . . ?
‘‘A. He asked me to stand up because he wanted to go upstairs.
‘‘Q. Okay. And did you stand up?
‘‘A. Yes. . . .
‘‘Q. Did you move toward the upstairs?
‘‘A. Yes, yeah, slowly. . . .
‘‘Q. And do you recall approximately how many steps you took?
‘‘A. About four. . . .
‘‘Q. . . . And where—how far did you get toward the upstairs?
‘‘A. Not far at all. I didn’t take a step upstairs.
‘‘Q. And did the [petitioner] at all take any steps toward the upstairs?
‘‘A. Yes.
‘‘Q. How many, if you know?
‘‘A. One.’’
11
Although the respondent attempts to distinguish Johnson from the pre-
sent case solely on the basis of the fact that the present case does not
involve a felony murder charge, we see no reason why this principle should
not also apply to the facts at hand. In the case of felony murder, an issue
for the factfinder to determine is whether the murder occurred immediately
before or during the commission of the predicate felony, and in the case
of incidental restraint, an issue for the factfinder to consider is whether the
kidnapping occurred during the commission of the other charged offense.
See State v. Johnson, supra, 165 Conn. App. 290–91; State v. Salamon, supra,
287 Conn. 548.
12
Although we acknowledge that the burglary charge against the petitioner
is no longer pending given that the state entered a nolle on that charge
following our reversal of the burglary conviction and remand on direct
appeal; see State v. White, supra, 97 Conn. App. 783; this has no bearing on
our analysis of the claim at present. ‘‘[A]s with any jury instruction claim,
we must examine the issue or issues before the jury, including what was
undisputed, and examine the charge ‘in view of the factual posture of the case
[at that time].’ ’’ State v. Madigosky, 291 Conn. 28, 40, 966 A.2d 730 (2009).
13
As the respondent aptly points out in his brief, we note here that ‘‘the
fact that no underlying crime has occurred does not bar a conviction for
burglary,’’ and that even ‘‘[i]f a defendant changes his mind after entering
a building and does not, in fact, commit the intended crime, a burglary has
occurred nonetheless.’’ State v. Flowers, 85 Conn. App. 681, 691, 858 A.2d
827 (2004), rev’d on other grounds, 278 Conn. 533, 543, 898 A.2d 789 (2006).
14
The prosecutor asserted during closing arguments that the state had
successfully proven that the petitioner intended to commit some crime,
although it could not identify which crime, stating: ‘‘[Defense] counsel claims
that there is no evidence whatsoever of the defendant’s intention to commit
a crime. . . . [However] there is more than sufficient evidence from which
you can infer that the defendant intended to either take money, property,
assault, or sexually assault [the complainant] . . . .’’
15
Notably, the respondent concedes in his brief to this court that ‘‘if
the petitioner’s intent had been to steal from the [complainant], and his
representation that he was armed constituted both the threat of force needed
to carry out a robbery and a restraint of the [complainant] while he . . .
search[ed] [for] valuables, then the petitioner and the habeas court would
be correct that the restraint and threat of force elements overlapped to such
an extent that a jury would need to determine whether the kidnapping was
merely incidental to the robbery.’’ Given the evidence presented at trial and
how little we know about the jury’s view of the case, however, the jury
plausibly could have believed that the petitioner intended to commit a
robbery when he entered the residence unlawfully. See General Statutes
§ 53a-133 (‘‘A person commits robbery when, in the course of committing
a larceny, he uses or threatens 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 retention thereof immediately after
the taking; or [2] compelling 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 footnote 14 of this opinion.
16
‘‘[T]he appropriate remedy for the instructional impropriety identified
in Salamon is to reverse the defendant’s kidnapping conviction and to
remand the case to the trial court for a new trial. It is well established that
instructional impropriety constitutes ‘trial error’ for which the appropriate
remedy is a new trial, rather than a judgment of acquittal.’’ State v. DeJesus,
288 Conn. 418, 434–37, 953 A.2d 45 (2008).
17
We note that the petitioner did not raise this as a claim of error on appeal.