Hinds v. Commissioner of Correction ( 2014 )

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WALTER HINDS v. COMMISSIONER
OF CORRECTION
(AC 35043)
(AC 35081)
Lavine, Alvord and Bishop, Js.
Argued March 11—officially released August 5, 2014
(Appeal from Superior Court, judicial district of
Tolland, Cobb, J.)
Erika L. Brookman, assistant state’s attorney, with
whom, on the brief, were Kevin D. Lawlor, state’s attor-
ney, Mary M. Galvin, former state’s attorney, and
Michael E. O’Hare, former senior assistant state’s attor-
ney, for the appellant-appellee (respondent).
Adele V. Patterson, senior assistant public defender,
for the appellee-appellant (petitioner).
Opinion
BISHOP, J. In this habeas corpus action, the peti-
tioner, Walter Hinds, appeals from the judgment dis-
missing the second count of his petition. In support,
the petitioner claims that the habeas court incorrectly
determined that the cumulative effect of the trial court’s
alleged errors in his underlying criminal trial did not
deprive him of a fair trial. The respondent, the Commis-
sioner of Correction (commissioner), in turn, appeals
from the judgment granting the petitioner a new trial
on the first count of the petition. The commissioner
claims that the habeas court incorrectly concluded that
the petitioner was not procedurally defaulted from
asserting his habeas claims and that the court, on the
merits, incorrectly determined that the petitioner was
denied a fair trial on the count in question. We affirm
the judgment of the habeas court.1
The following undisputed facts and procedural his-
tory are relevant to our consideration of the issues on
appeal. Following a trial to the jury, the petitioner was
found guilty of kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (A) and sexual
assault in the first degree in violation of General Stat-
utes § 53a-70 (a) (1). The petitioner was thereafter given
consecutive sentences of twenty years and twenty-five
years imprisonment for a total effective sentence of
forty-five years incarceration. The petitioner remains
in the custody of the commissioner.
Following the judgment of conviction and sentencing,
the petitioner appealed to this court, which, in turn,
affirmed the judgment. State v. Hinds, 86 Conn. App.
557, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915,
871 A.2d 372 (2005).2 In its opinion, this court recited the
following legally relevant factual history: ‘‘On August
28, 2000, sixteen year old high school student K was
working as a cashier at the Super Stop & Shop super-
market in Milford. After finishing work at approxi-
mately 9 p.m., K left the store and started on foot to a
friend’s apartment that was approximately five minutes
away. The route K followed required her to walk past
buildings adjacent to Super Stop & Shop, to cross See-
man’s Lane and to cut through the property of In-Line
Plastics Tool Company (In-Line Plastics). As she
crossed Seeman’s Lane, K noticed a pickup truck exit
the driveway of In-Line Plastics, reenter the parking
area and come to a stop. As she walked past the truck,
she turned around and observed that the driver had
exited the vehicle and was walking behind her. She
continued walking and, upon turning around again, she
saw that the driver was right behind her and wearing
only underwear and a sleeveless shirt. Although it was
nighttime, the area was lit by lights on the surrounding
buildings, enabling her to see the driver’s face.
‘‘At that point, K started to run. The [petitioner] ran
after K, grabbed her and put one of his hands around
her waist and his other hand over her mouth. He
instructed her not to scream or he would kill her. The
[petitioner] then threw K to the pavement and dragged
her by the legs into the bushes behind the In-Line Plas-
tics building. The [petitioner] sat on her chest with his
feet on the outside of her arms and instructed K to
open her mouth. He inserted his penis into her mouth
and forced her to perform fellatio on him, ejaculating
into her mouth. The [petitioner] then patted her on the
cheek and told her she could leave. Too afraid to move,
K remained where she was and, as the [petitioner]
walked back toward his truck, pleaded with him not
to kill her, telling him that she would not tell anybody
what had happened. The [petitioner] turned around and
looked at K, enabling her to see his face again. He then
entered his truck and drove away.’’ (Footnote omitted.)
Id., 559–60.
In 2008, following his conviction and unsuccessful
direct appeal, the petitioner brought a habeas corpus
petition in four counts. Hinds v. Warden, Superior
Court, judicial district of Tolland, Docket No. CV-03-
0823519-S (July 22, 2009). In the first count, the peti-
tioner set forth various allegations of trial counsel’s
purported ineffectiveness. Id. In count two, the peti-
tioner alleged that the trial judge made prejudicial com-
ments and erred in ordering that the petitioner remain
shackled during trial. Id. In count three, he alleged that
the cumulative errors of the trial court and his trial
counsel deprived him of a fair trial. Id. And, in count
four, he alleged that he was actually innocent of the
crimes for which he was convicted. Id. Following a
habeas trial, the court denied the petition. Id. On review,
this court dismissed the appeal. Hinds v. Commis-
sioner of Correction, 126 Conn. App. 905, 12 A.3d 1099,
cert. denied, 301 Conn. 901, 17 A.3d 1043 (2011).
On October 20, 2009, the petitioner brought this peti-
tion. In a two count amended petition, filed April 5,
2012, the petitioner alleged that (1) his conviction of
kidnapping in the first degree should be reversed due to
constitutional errors in the jury charge; and (2) multiple
errors by the trial court, deemed harmless on direct
review, had the cumulative effect of violating his rights
to due process of law and a fair trial. In response to
the amended petition, the commissioner filed a return
alleging, inter alia, that the petitioner’s claim regarding
the trial court’s jury instruction was procedurally
defaulted on the basis of the petitioner’s failure to raise
the jury instruction issue at trial and on direct appeal.
The commissioner asserted, as well, that the claim
regarding the purported cumulative effect of multiple
errors by the trial court was procedurally defaulted and
that a claim premised on the aggregation of nonconstitu-
tional errors is not cognizable at law.
In his reply to the return, the petitioner claimed, as
to the alleged instructional deficiency, that he should
not be procedurally defaulted. He further claimed that,
if the doctrine of procedural default applies, he can
demonstrate good cause for his failure to raise the
instructional claim at trial and that he was prejudiced
by the trial court’s failure to instruct the jury properly
regarding the kidnapping charge. In response to the
commissioner’s return regarding the second count, the
petitioner alleged that the claim regarding multiple
errors by the trial court did not arise until this court,
on direct review, found that multiple errors had taken
place. Additionally, the petitioner claimed that he
brought the second count to protect the record for
purposes of exhaustion and in the event of a future
change in the law regarding whether nonconstitutional
missteps by the trial court can be aggregated in
assessing whether they had the cumulative effect of
denying him a constitutionally fair trial.
Following a trial, the habeas court granted count one
of the petition, vacated the petitioner’s conviction and
sentence on the kidnapping charge and remanded the
case to the trial court for further proceedings. The
habeas court also denied the petitioner’s claim set forth
in the second count, which was premised on the cumu-
lative effect of trial court errors. Thereafter, the court
granted the commissioner’s petition for certification to
appeal from the judgment as to the first count and
granted the petitioner certification to appeal from the
denial of relief on the second count of the petition. This
consolidated appeal followed.
I
JURY INSTRUCTIONS
We review the court’s determination as to each count
in turn. As to the first count, regarding the trial court’s
jury instruction, the petitioner alleges that the court
failed to charge the jury in accordance with the jury
instruction set forth by our Supreme Court in State
v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). In
Salamon, the court held 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
court further stated: ‘‘[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 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. Consequently, when the
evidence reasonably supports a finding 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.’’ (Emphasis in original; footnote omitted.)
Id., 547–48.
The parties are in agreement that the jury in the
underlying criminal case was not charged in accordance
with the dictates of Salamon. This is not, of course,
a criticism of the trial court because the decision in
Salamon was issued several years after the petitioner’s
criminal trial. Indeed, the trial court charged the jury
in accordance with the then existing law regarding the
crime of kidnapping in the first degree. Specifically, the
court instructed the jury: ‘‘Count number one; kidnap-
ping in the first degree. A person is guilty of kidnapping
in the first degree when he abducts another person and
when he restrains the person abducted with intent to
inflict physical injury upon him or her, or violates or
abuses her sexually. The information informs, or
alleges, that [the petitioner] on or about the 28th day
of August, 2000, at approximately 9 p.m. in the area of
Bridgeport Avenue and Seeman’s Lane, the said [peti-
tioner] did abduct another person, and he restrained
the person abducted with intent to abuse that person
sexually, in violation of the Connecticut General Stat-
utes. And the person abducted and sexually abused
testified to in this courtroom by [K] as that person,
based upon the testimony if you so believe it.3
‘‘I shall now define for you the various terms used
in the statute. The first term is ‘abduct.’ Abduct means
to restrain a person with intent to prevent her liberation
either by secreting or hiding that person in a place
where she is not likely to be found or by using or
threatening to use physical force or intimidation.
That’s abduction.
‘‘The next term to be defined is ‘restrain.’ Restrain
means to restrict a person’s movement intentionally and
unlawfully in such a manner as to interfere substantially
with her liberty by moving her from one place to another
and by confining her in the place where the restrictions
first begin or in a place which she has been moved
without consent. Without consent includes, but is not
limited to, deception. As you can see, the abduction
and restraining must be intentional. There must be an
intent to interfere intentionally with the victim’s liberty.
Here, and I will use the word victim, I mean [K], and
with [K’s] liberty and an intent to prevent [K’s] liberation
either by secreting or hiding her in a place where she
is not likely to be found or by using or threatening to
use physical force or intimidation.
‘‘Intent; intent relates to the condition of mind of the
person who commits the act. His purpose in doing it;
as defined by our statute, a person acts intentionally
with respect to a result or to conduct when his con-
scious objective is to cause such result or to engage in
such conduct. What a person’s purpose, intention, or
knowledge has been is usually a matter to be deter-
mined by inference. No person is able to testify that he
looked into another’s mind and saw therein a certain
purpose or intention or a certain knowledge to do harm
to another. The only way in which a jury can ordinarily
determine what a person’s purpose, intention, or knowl-
edge was at any given time, aside from that person’s
own statements or testimony, is by determining what
that person’s conduct was and what the circumstances
were surrounding that conduct and from that infer what
his purpose, intention, or knowledge was. To draw such
an inference is not only the privilege, but also the proper
function of a jury. To provide, of course, that the infer-
ence drawn complies with the standards for inferences
as explained in connection with my instructions on
circumstantial evidence. Thus, either [K] must have
been moved from one place to another, or [K] had been
confined in the place where the restriction first began,
or in the place where she has been moved without
her consent. There is no special requirement that the
restraint be for any particular length of time, or that
[K] be moved over any particular distance. Any time
period of restraint and distance of moving of [K] is
sufficient to constitute these elements of kidnapping.
You may, however, consider the length of time and
distance together with all circumstances in determining
the question of intention. The law which makes kidnap-
ping criminal punishes interference with personal lib-
erty restricting the victim’s freedom of movement. So,
you cannot find kidnapping until you first find it estab-
lished that there was such restriction of movement and
that it has been done intentionally. That is, it has been
done without right or authority of law. That it has had
the effect of interfering substantially with the vic-
tim’s liberty.
‘‘Abduction may be established by satisfactory proof
that [K] had been unlawfully restrained and that with
intent to prevent her liberation, the [petitioner]
restrained her by using or threatening to use physical
force or intimidation. Abduction need not be proved
by establishing the use of force or intimidation if the
proof establishes that the [petitioner] threatened its use
in such a manner that [K] reasonably believed that force
would be applied to her if she sought to escape or to
thwart the abductor’s intention.’’
Notably, the trial court’s instruction did not advise
the jury that in order to find the petitioner guilty of
kidnapping, the jury would have to find that ‘‘the victim
[was] 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,’’ an instruction
made mandatory by Salamon’s holding. State v. Sala-
mon, supra, 287 Conn. 547.
As noted, the trial court’s instruction was entirely in
accord with the then long-standing judicial gloss on
the meaning of the language of our kidnapping statute.
Indeed, in State v. Chetcuti, 173 Conn. 165, 377 A.2d
263 (1977), our Supreme Court affirmed the conviction
of kidnapping in the first degree where a defendant
claimed, on appeal, that the trial court should have
instructed the jury that he should not be found guilty
of kidnapping when the abduction and restraint of the
victim were incidental to his attempted sexual assault
of the victim. Id., 169. In rejecting the defendant’s claim,
the court observed that the charge requested by the
defendant was not an accurate statement of Connecti-
cut law. Id., 171. The court continued: ‘‘In any event,
the legislature of this state has seen fit not to merge
the offense of kidnapping with sexual assault or with
any other felony. Nor has the legislature imposed any
time requirement for the restraint, nor any distance
requirement for the asportation to constitute the crime
of kidnapping. In view of the express terms of the stat-
ute and the fact that the defendant’s requests to charge
were not an accurate statement of the law of this state
. . . the court was not in error in denying the requests
to charge.’’ (Citation omitted; footnote omitted.) Id.,
170–71.
Chetcuti was not an outlier. To the contrary, its hold-
ing was expressly and routinely followed in ensuing
cases. See, e.g., State v. Lee, 177 Conn. 335, 343–44, 417
A.2d 354 (1979) (‘‘Kidnapping requires that there be
abduction. Abduction means restraint with the intent
to prevent liberation. Whether in a given case the
restraint is accompanied by the requisite intent, so as to
constitute kidnapping, or is merely incidental to another
felony, is ordinarily a question for the jury. . . . Where
the requisite intent is present, the fact that the perpetra-
tor’s underlying motive for the detention is the consum-
mation of another crime, the prevention of his
detection, or the facilitation of his flight, does not pre-
clude a conviction for kidnapping.’’ [Citations omit-
ted.]); see also State v. Briggs, 179 Conn. 328, 338–39,
426 A.2d 298 (1979) (‘‘The defendant urges us to adopt
the merger doctrine of People v. Levy, 15 N.Y.2d 159,
256 N.Y.S.2d 793, cert. denied, 381 U.S. 938, 85 S. Ct.
1770, 14 L. Ed. 2d 701 [1965], and its progeny which
would preclude the prosecution for a kidnapping which
is merely incidental to the sexual assault. . . . This
court recently considered the defendant’s argument in
State v. Lee, [supra, 335], and State v. DeWitt, 177 Conn.
637, 419 A.2d 861 [1979] where we held that the defen-
dant may be convicted of kidnapping in the second
degree in addition to a conviction for robbery even
though the convictions grew out of the same conduct as
long as the state was able to prove, beyond a reasonable
doubt, all of the essential elements of each crime. . . .
Where the intent required to constitute a kidnapping
in the second degree is present, the fact that the perpe-
trator’s underlying motive for the detention is the con-
summation of another crime . . . does not preclude a
conviction for kidnapping.’’ [Citations omitted; footnote
omitted; internal quotation marks omitted.]), cert.
denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862
(1980); State v. Vass, 191 Conn. 604, 614–15, 469 A.2d
767 (1983) (trial court did not err in refusing to instruct
jury that defendant could not be convicted on kidnap-
ping charge if it found kidnapping was ‘‘ ‘integral or
incidental’ ’’ to sexual assault; where, as here, state
proves all elements of kidnapping, defendant may be
convicted of that crime in addition to another felony
even though two offenses arose out of same course of
conduct); State v. Burak, 12 Conn. App. 613, 615, 533
A.2d 237 (1987) (‘‘[o]ur Supreme Court has rejected the
doctrine which would merge the act of kidnapping into
the other crime charged where the kidnapping was
merely incidental to such crime’’).
Finally, and pointedly, in State v. Luurtsema, 262
Conn. 179, 200, 811 A.2d 223 (2002), released on Decem-
ber 24, 2002, our Supreme Court rejected the defen-
dant’s claim that the movement of the victim from a
couch to the floor, the removal of her clothes, the forc-
ing of her legs apart and the manual choking of the
victim did not constitute an abduction and were acts
merely incidental to the sexual assault. In its response
to the defendant’s arguments, the court opined: ‘‘In light
of our conclusion that the kidnapping statute does not
require movement of the victim, the defendant’s argu-
ments are without merit. In rejecting the defendant’s
arguments, we emphasize that our legislature has not
seen fit to merge the offense of kidnapping with other
felonies, nor impose any time requirements for
restraint, nor distance requirements for asportation, to
the crime of kidnapping.’’ (Internal quotation marks
omitted.) Id., 202. The court continued: ‘‘Thus, any argu-
ment imputing a temporal requirement to the restraint
element or a distance requirement for abduction under
the kidnapping statute must fail. Furthermore, any argu-
ment that attempts to reject the propriety of a kidnap-
ping charge on the basis of the fact that the underlying
conduct was integral or incidental to the crime of sexual
assault also must fail. . . . The defendant’s interpreta-
tion of the kidnapping statute is simply not the law of
this state. . . . Accordingly, [t]he proper inquiry is not
whether the kidnapping was incidental to [other
offenses], but whether the restraint was accomplished
with the requisite intent to constitute kidnapping, as
well as the state of mind required for [the other
offenses].’’ (Citations omitted; internal quotation marks
omitted.) Id., 202–203.
From this brief survey of decisional law from 1979
through 2002, the year of the petitioner’s conviction, it
is manifest that the Supreme Court’s new interpretation
of the kidnapping statute, later set forth in 2008 in
Salamon, was not only not the law of this state at the
time of the petitioner’s criminal trial, but, the holding
embraced by Salamon was expressly and uniformly
rejected in a succession of cases originating with Chet-
cuti in 1977, and still in effect when the petitioner’s
criminal trial took place.
In sum, Salamon represented a substantive change
in the court’s interpretation of the language of the kid-
napping statute. As the court in Salamon stated: ‘‘Upon
examination of the common law of kidnapping, the
history and circumstances surrounding the promulga-
tion of our current kidnapping statutes and the policy
objectives animating those statutes, we now conclude
the following: Our legislature, in replacing a single,
broadly worked kidnapping provision with a gradated
scheme that distinguishes kidnappings from unlawful
restraints by the presence of an intent to prevent a
victim’s liberation, intended to exclude from the scope
of the more serious crime of kidnapping and its accom-
panying 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.
‘‘Our failure previously to recognize such an exclu-
sion largely has eliminated the distinction between
restraints and abductions and effectively has merged
the statutory scheme such that it now closely resembles
the provision that the scheme was intended to replace.
Unfortunately, that interpretation has afforded prosecu-
tors virtually unbridled discretion to charge the same
conduct either as kidnapping or as an unlawful restraint
despite the significant differences in the penalties that
attach to those offenses. Similarly, our prior construc-
tion of the kidnapping statutes has permitted prosecu-
tors—indeed, it has encouraged them—to include a
kidnapping charge in any case involving a sexual assault
or robbery. In view of the trend favoring reform of the
law of kidnapping that existed at the time that our
statutes were enacted, and in light of the [Commission
to Revise the Criminal Statutes’] stated goal of creating
a modern, informed and enlightened penal code, it is
highly likely that our legislature intended to embrace
that reform, thereby reducing the potential for
unfairness that had been created under this state’s prior
kidnapping statutes.’’ (Footnote omitted.) State v. Sala-
mon, supra, 287 Conn. 542–44.
And, as to the court’s more limited interpretation
of the kidnapping statute enunciated in Salamon, the
court, subsequently, adopted a guidepost for the retro-
active application of its holding. In Luurtsema v. Com-
missioner of Correction, 299 Conn. 740, 764, 12 A.3d
817 (2011), the court stated: ‘‘Accordingly, we adopt a
general presumption in favor of full retroactivity for
judicial decisions that narrow the scope of liability of a
criminal statute.’’ The court continued: ‘‘We emphasize
that in the Salamon context in particular, any excep-
tions to the general presumption in favor of full retroac-
tivity are likely to be few and far between.’’ Id.
Consistent with that reasoning, the court, in State v.
Fields, 302 Conn. 236, 239, 24 A.3d 1243 (2011), which
arose after Salamon, determined that the defendant
was entitled to a new trial on a kidnapping charge
because the trial court had failed to instruct the jury,
in accordance with Salamon, that if it found that the
restraint of the victim was merely incidental to the
defendant’s commission of the assault, it could not find
him guilty of kidnapping.
On the basis of our review of the record, we believe
the petitioner would be entitled to a new trial on the
kidnapping charge because of the court’s failure to
instruct the jury in accordance with the instructional
dictates of Salamon so long as he is not procedurally
defaulted from now making that claim in the habeas
context.
II
PROCEDURAL DEFAULT
We turn now to a consideration of the procedural
default doctrine. In essence, the procedural default doc-
trine holds that a claimant may not raise, in a collateral
proceeding, claims that he could have made at trial or
on direct appeal in the original proceeding and that if
the state, in response, alleges that a claimant should
be procedurally defaulted from now making the claim,
the claimant bears the burden of demonstrating good
cause for having failed to raise the claim directly, and
he must show that he suffered actual prejudice as a
result of this excusable failure. Our summary is eluci-
dated by the following history.
In the 1977 case of Wainwright v. Sykes, 433 U.S.
72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the United
States Supreme Court held that a petitioner’s failure to
timely object to certain statements at his criminal trial in
accordance with the applicable state court evidentiary
rule, absent a showing of cause for the failure to comply
with the evidentiary rule and some showing of actual
prejudice, would bar federal habeas corpus review of
his conviction. Id., 87. In Connecticut, the procedural
default rule set forth in Wainwright was adopted and
applied to state habeas corpus petitions in Johnson v.
Commissioner of Correction, 218 Conn. 403, 409, 589
A.2d 1214 (1991). Since Johnson, a habeas petitioner
is barred from asserting a claim in a habeas petition
that could have been raised in the underlying criminal
proceeding unless he is able to demonstrate good cause
for having failed to raise such a claim and actual preju-
dice resulting from the failure to raise the claim in the
criminal proceedings. Id., 419.
Cases decided since Wainwright and Johnson have
further elucidated the parameters of ‘‘cause’’ and ‘‘preju-
dice.’’ We turn first to a consideration of cause. In the
United States Supreme Court case of Reed v. Ross, 468
U.S. 1, 104 S. Ct. 2901, 82 L. Ed. 2d 1 (1984), the court
opined: ‘‘Because of the broad range of potential rea-
sons for an attorney’s failure to comply with a proce-
dural rule, and the virtually limitless array of contexts
in which a procedural default can occur, this court has
not given the term cause precise content. . . . Nor do
we attempt to do so here. Underlying the concept of
cause, however, is at least the dual notion that, absent
exceptional circumstances, a defendant is bound by the
tactical decisions of competent counsel . . . and that
defense counsel may not flout state procedures and
then turn around and seek refuge in federal court from
the consequences of such conduct . . . . A defense
attorney, therefore, may not ignore a State’s procedural
rules in the expectation that his client’s constitutional
claims can be raised at a later date in federal court.
. . . Similarly, he may not use the prospect of federal
habeas corpus relief as a hedge against the strategic
risks he takes in his client’s defense in state court. . . .
In general, therefore, defense counsel may not make a
tactical decision to forgo a procedural opportunity—
for instance, an opportunity to object at trial or to raise
an issue on appeal—and then, when he discovers that
the tactic has been unsuccessful, pursue an alternative
strategy in federal court. . . . On the other hand, the
cause requirement may be satisfied under certain cir-
cumstances when a procedural failure is not attribut-
able to an intentional decision by counsel made in
pursuit of his client’s interests. And the failure of coun-
sel to raise a constitutional issue reasonably unknown
to him is one situation in which the requirement is
met. If counsel has no reasonable basis upon which to
formulate a constitutional question, setting aside for
the moment exactly what is meant by reasonable basis
. . . it is safe to assume that he is sufficiently unaware
of the question’s latent existence that we cannot attri-
bute to him strategic motives of any sort.’’ (Citations
omitted; footnote omitted; internal quotation marks
omitted.) Id., 13–15. The court in Reed concluded:
‘‘Counsel’s failure to raise a claim for which there was
no reasonable basis in existing law does not seriously
implicate any of the concerns that might otherwise
require deference to a State’s procedural bar.’’ Id., 15.
From this language, we believe that counsel’s failure
to raise an issue for which there was no reasonable
basis may, indeed, satisfy the cause requirement. Our
Supreme Court, in Johnson v. Commissioner of Correc-
tion, supra, 218 Conn. 403, appears to have adopted a
similar approach. There, in rejecting the petitioner’s
appeal, the court commented: ‘‘From the viewpoint of
federal constitutional law at the time of the petitioners’
trials, it can hardly be contended that there was no
reasonable basis for challenging a jury array upon the
ground that a statute, such as [General Statutes] § 51-
220, might have a disproportionate impact on the avail-
ability of minority jurors. Such a claim had been made
prior to 1975 in State v. Townsend, [167 Conn. 539,
548–50, 356 A.2d 125, cert. denied, 423 U.S. 846, 96 S.
Ct. 84, 46 L. Ed. 2d 67 (1975)], before any of these
petitioners had been tried and was not categorically
rejected.’’ Johnson v. Commissioner of Correction,
supra, 422.
In the case at hand, in light of our Supreme Court’s
affirmation and reaffirmation of its holding in Chetcuti,
there was no reasonable basis for counsel to have asked
the court in the petitioner’s criminal trial for an instruc-
tion not then permitted and, indeed, expressly rejected
by then controlling decisional law. Moreover, given the
pre-Salamon status of the judicial gloss on the kidnap-
ping statute, there was good reason, based on profes-
sionalism, for counsel not to have sought a Salamon
instruction at trial and to have challenged on appeal
the absence of such a charge. This court has stated, in
regard to the practice of raising multiple claims on
appeal: ‘‘A shotgun approach does a disservice both to
this court and to the party on whose behalf it is pre-
sented. . . . Naturally, an appellate court is habitually
receptive to the suggestion that a lower court commit-
ted an error. But receptiveness declines as the number
of assigned errors increases. Multiplicity hints at lack
of confidence in any one [issue] . . . .’’ (Internal quota-
tion marks omitted.) Boccanfuso v. Conner, 89 Conn.
App. 260, 263 n.2, 873 A.2d 208, cert. denied, 275 Conn.
905, 882 A.2d 668 (2005). See also, to the same effect,
Kilduff v. Adams, Inc., 219 Conn. 314, 320 n.5, 593 A.2d
478 (1991), and Latham & Associates, Inc. v. William
Raveis Real Estate, Inc., 218 Conn. 297, 300, 589 A.2d
337 (1991). Because there was no reasonable basis for
trial counsel to have asked for a Salamon type charge
and, indeed, strong reason for counsel not to seek such
a charge in light of the then prevailing judicial gloss on
the kidnapping statute, we agree with the habeas court’s
conclusion that the petitioner satisfied the cause prong
of the cause and prejudice standard.
At the outset, we note that, on the issue of prejudice,
the habeas court stated that it was not clear beyond a
reasonable doubt that the verdict on the kidnapping
charge would have been the same even if the jury had
been properly instructed. To the extent that the habeas
court found that the commissioner has the burden of
proving the absence of prejudice, we disagree. The peti-
tioner has the burden of proving both cause and preju-
dice. Because the issue of whether the petitioner met
his burden of proving prejudice in order to avoid the
bar of procedural default involves a question of law,
however, we conduct our own analysis, on review, of
whether this legal standard has been met without the
necessity of remanding the case for the habeas court’s
determination. See Mish v. Commissioner of Correc-
tion, 133 Conn. App. 845, 849–51, 37 A.3d 179, cert.
denied, 305 Conn. 918, 47 A.3d 390 (2012). In making
his argument that the commissioner should bear the
responsibility to prove prejudice, the petitioner incor-
rectly attempts to draw an analogy between the scope of
appellate review accorded a defendant on direct appeal
and during the habeas process. On direct appeal, a
defendant may obtain review of an unpreserved claim
if the record is adequate for review of the claim and if
the claim is of constitutional magnitude. See State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
And, a defendant asserting a constitutional claim pursu-
ant to Golding may succeed if a constitutional violation
clearly took place and clearly deprived him of a fair
trial, unless the state, in response, is able to demonstrate
that the constitutional error was harmless beyond a
reasonable doubt. Id. The analogy, however, is not apt,
as there are sufficient reasons founded on public policy
regarding the due administration of justice as well as
fairness that justify the requirement that a petitioner,
in a habeas case, who failed to raise an issue in his
underlying criminal prosecution, should be required to
bear the burden of demonstrating his entitlement to
subsequent collateral review.
The differences in the lens of review between a direct
appeal and a collateral attack on a conviction were
recognized by our Supreme Court in Johnson v. Com-
missioner of Correction, supra, 218 Conn. 403. There,
our Supreme Court opined: ‘‘We have concluded, how-
ever, that our dictum in [Payne v. Robinson, 207 Conn.
565, 568–69, 541 A.2d 504, cert. denied, 488 U.S. 898,
109 S. Ct. 242, 102 L. Ed. 2d 230 (1988)] concerning the
applicability of the [State v. Evans, 165 Conn. 61, 327
A.2d 576 (1973)]4 standard of appellate review to consti-
tutional claims first raised in postconviction habeas
corpus proceedings was inappropriate. We failed to give
sufficient consideration to the special problems that
are likely to arise relating to the feasibility of a second
trial when a conviction is set aside by a habeas court
rather than by an appellate court. These problems are
related mainly to the more extended delay of the second
trial that frequently results from a reversal of a convic-
tion by a habeas court. There is no statute of limitation
or other time limit that would bar a habeas petition.
. . . Ordinarily the petition may not be filed until appel-
late remedies have been exhausted, lest the petitioner
be charged with a deliberate bypass of an appeal. An
additional record must be created in the habeas court,
which may require extensive testimony. If the petitioner
is successful in overturning his conviction, another
appeal is almost inevitable.
‘‘A direct appeal following a conviction, on the other
hand, is subject to strict time limits at each stage of
the proceeding. Except for extraordinary cases, an
appeal in this state is ordinarily determined within
approximately one year from the date it was filed. The
greater time lapse that results when a second trial is
ordered by a habeas court has a serious impact on
the availability of witnesses and other evidence for the
second trial. Memories fade with the passage of time,
exhibits are lost, and other evidence is less likely to be
available. Appellate counsel would have less incentive
to raise on appeal all arguable constitutional claims of
the defendant if another opportunity to raise such
claims were available in the habeas court. We are con-
vinced that these consequences would be sufficiently
harmful to the administration of justice in this state
as to require that we withdraw our dictum in Payne
concerning the applicability of the Evans standard for
appellate review to habeas corpus proceedings.’’ (Cita-
tion omitted; footnote altered.) Johnson v. Commis-
sioner of Correction, supra, 218 Conn. 415–16.
While the United States Supreme Court in Wain-
wright applied the doctrine of procedural default as a
bar to collateral attacks on criminal convictions, the
court expressly declined to elucidate the parameters
of cause and prejudice. Wainwright v. Sykes, supra,
433 U.S. 87. The court stated, however, that the preju-
dice must be actual and not merely speculative. Id.
Following Wainwright, the Supreme Court, in United
States v. Frady, 456 U.S. 152, 102 S. Ct. 1584, 71 L.
Ed. 2d 816 (1982), opined that, in order to satisfy the
prejudice component of the cause and prejudice doc-
trine, one must ‘‘shoulder the burden of showing, not
merely that the errors at his trial created a possibility
of prejudice, but that they worked to his actual and
substantial disadvantage, infecting his entire trial with
error of constitutional dimensions.’’ (Emphasis in origi-
nal.) Id., 170.
In the case at hand, we are satisfied that the petitioner
demonstrated actual prejudice and that the trial court’s
failure to instruct in accordance with the dictates of
Salamon significantly impacted the trial. From our
review of the record, it is clear that evidence of the
petitioner’s restraint and abduction of the victim indi-
cated that it was closely aligned in time and place to
his sexual assault of the victim. Put another way, the
record reveals that the state did not present evidence
that the petitioner’s restraint and abduction of the vic-
tim was sufficiently disconnected from his sexual
assault of the victim so as to render the absence of a
Salamon instruction harmless. To the contrary, given
the evidence regarding the proximity in time and loca-
tion of the restraint and abduction to the sexual assault,
there is a reasonable probability that the absence of the
Salamon instruction prejudiced the petitioner because
the presence of such a charge would have required the
jury, in order to find him guilty on the kidnapping count,
to determine that the restraint and abduction were not
merely incidental to the sexual assault, a conclusion it
was not asked to make on the basis of the law then
applicable.5 The failure to give a Salamon instruction,
under the facts presented at trial, substantially deprived
the petitioner of his constitutional right to have the jury
properly informed of the meaning of the language of
the kidnapping charge. For these reasons, the petitioner
is entitled to a new trial on the kidnapping count.
III
CUMULATIVE EFFECT
The petitioner claimed, as well, at the habeas trial
that he is entitled to a new trial on the second count of
his petition on the basis of his claim that the cumulative
effect of the trial court’s errors deprived him of a fair
trial. In response to this claim, the habeas court found
that the petitioner had not shown his entitlement to a
new trial because such a claim is not legally cognizable.
We agree.
In response to the petitioner’s claim, the commis-
sioner filed a return setting forth two special defenses:
(1) that this claim regarding the cumulative effect of
the trial court errors is procedurally defaulted; and (2)
such a claim is not recognizable at law. The court denied
relief on the second basis. Confronted with a similar
claim, this court has stated: ‘‘Our Supreme Court has
rejected a claim that a group of instructional claims of
error, none of which was found to constitute reversible
error, should be aggregated to form a separate basis
for a claim of a constitutional violation of a right to a
fair trial . . . and also rejected a claim that the cumula-
tive effect of a variety of alleged improprieties should
be the basis of a claim of constitutional violation . . . .
We also reject as untenable the creation of a new consti-
tutional claim in which the totality of alleged constitu-
tional error is greater than the sum of its parts.’’
(Citations omitted; internal quotation marks omitted.)
State v. Reddick, 33 Conn. App. 311, 338–39, 635 A.2d
848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38
(1994). To the same effect, our Supreme Court, in State
v. Samuels, 273 Conn. 541, 871 A.2d 1005 (2005), held
that the erroneous admission of the constancy of accu-
sation testimony of four witnesses could not be aggre-
gated to create a legally viable constitutional claim that
the cumulative effect of these nonconstitutional mis-
steps deprived the defendant of a fair trial. Id., 562. The
petitioner’s claim premised on the cumulative effect of
the trial court’s missteps is therefore without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Both parties individually appealed from the habeas court’s judgment.
The petitioner challenges the court’s dismissal of the second count of his
petition; the commissioner appealed from that portion of the judgment
granting the petition on the basis of the allegations in the first count. While
both appeals were pending, they were consolidated for reasons of judicial
economy. We now decide the consolidated appeal.
2
Because it may have some relevance to the claims made by the petitioner
in this habeas appeal, we note that, on direct appeal, this court found that
the trial court inappropriately gave a charge on consciousness of guilt, and
that the trial court failed to respond adequately to a note from the jury
during its deliberations, and abused its discretion in the admission of a
certain photograph of the petitioner. State v. Hinds, supra, 86 Conn. App.
568–69, 574. This court, however, found each of these errors harmless in
light of the strength of the state’s case. Id., 569, 574.
3
During its jury charge, the court referred to the victim by name because
she had been identified at trial. In this appeal, however, we follow the course
this court took on direct appeal in referring to the victim only as ‘‘K’’ for the
reasons set forth by this court on direct appeal and in similar circumstances.
Accordingly, although the trial court referred to the victim by name, we
substitute K as part of our recitation of the court’s instructions. State v.
Hinds, supra, 86 Conn. App. 559 n.1.
4
State v. Evans, supra, 165 Conn. 61, has since been superseded by State
v. Golding, supra, 213 Conn. 239–40, and stands, generally, for the same
proposition regarding the availability of appellate review of unpreserved
claims. See also State v. Elson, 311 Conn. 726, A.3d (2014), for the
Supreme Court’s most recent articulation of the Golding requirement.
5
It is noteworthy that at trial, the only seriously contested issue concerned
the adequacy and accuracy of the identification of the petitioner as the
perpetrator. There was no serious dispute as to whether both crimes had
been committed by a perpetrator as their statutory parameters were then
understood.