Pereira v. Commissioner of Correction

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RICARDO PEREIRA v. COMMISSIONER
OF CORRECTION
(AC 39401)
DiPentima, C. J., and Alvord and Bear, Js.
Syllabus
The petitioner, who had been convicted of murder and kidnapping in the
first degree, sought a writ of habeas corpus, claiming that his due process
rights were violated as a result of his kidnapping conviction. The peti-
tioner claimed that, in light of the reinterpretation of this state’s kidnap-
ping statutes in State v. Salamon (287 Conn. 509), which was decided
after his conviction, his kidnapping conviction should be vacated. Pursu-
ant to Salamon, to commit 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. The petitioner’s conviction stemmed from
an incident in which he was in a parked car with the victim when he
became enraged, and punched and strangled her. The victim fought
back and fled from the car, after which the petitioner drove the car into
her, ran over her, dragged her along the road, and then exited the car
and kicked her numerous times, resulting in her death. The petitioner
claimed that, because the events inside the car were a separate,
uncharged assault against the victim, he was entitled to a jury instruction
pursuant to Salamon because the petitioner’s restraint of the victim
was incidental to the uncharged assault. He also claimed that there was
a single, continuous crime, starting when he first struck the victim inside
the car and ending with her death, and that, because he was charged
with kidnapping and murder, he was entitled to a Salamon instruction.
The habeas court rendered judgment denying the petition and, thereafter,
denied the petition for certification to appeal, and the petitioner appealed
to this court. Held that the habeas court did not abuse its discretion in
denying the petition for certification to appeal, and, accordingly, the
appeal was dismissed: the petitioner’s claim regarding the kidnapping
charge and the uncharged assault while the petitioner and the victim
were inside the car was not reviewable, as the petitioner failed to raise
the claim in his posttrial brief, in his habeas petition, or in his petition
for certification to appeal, and the habeas court did not address the
issue in its memorandum of decision; moreover, the petitioner could
not prevail on his claim that he was entitled to a Salamon instruction
on the ground that the restraint that occurred in the car was merely
incidental to the commission of the murder, as the petitioner’s restraint
of the victim inside the car was completed before the petitioner engaged
in the conduct that caused the victim’s death, and, thus, the restraint
inside the car, which had criminal significance independent of the events
that occurred after the victim escaped from the car, was not necessary
to complete the murder, and this court was not persuaded that this
issue was debatable among jurists of reason, that it could have been
resolved by a court in a different manner, or that it presented a question
that was adequate to deserve encouragement to proceed further.
Argued May 22—officially released September 26, 2017
Procedural History
Amended petition for a writ of habeas corpus,
brought to the Superior Court in the judicial district
of Tolland and tried to the court, Fuger, J.; judgment
denying the petition; thereafter, the court denied the
petition for certification to appeal, and the petitioner
appealed to this court. Appeal dismissed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Brian Preleski, state’s attorney, and
Jo Anne Sulik, supervisory assistant state’s attorney,
for the appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Ricardo Pereira,
appeals following the denial of his petition for certifica-
tion to appeal from the judgment of the habeas court
denying his petition for a writ of habeas corpus. On
appeal, the petitioner claims that the habeas court (1)
abused its discretion in denying his petition for certifica-
tion to appeal from the denial of his habeas petition and
(2) improperly denied his habeas petition. We conclude
that the habeas court did not abuse its discretion in
denying certification to appeal. Accordingly, we dismiss
the petitioner’s appeal.
The following facts and procedural history are rele-
vant to our discussion. In March, 2000, the petitioner
was convicted of murder in violation of General Statutes
§ 53a-54a (a) and kidnapping in the first degree violation
of General Statutes § 53a-92 (a) (2) (A). The court,
Espinosa, J., sentenced the petitioner to sixty years
incarceration on the murder charge and fifteen years
incarceration on the kidnapping charge, with the sen-
tences to be served consecutively, for a total effective
sentence of seventy-five years incarceration. This court
affirmed his conviction on direct appeal. State v. Per-
eira, 72 Conn. App. 545, 805 A.2d 787 (2002), cert.
denied, 262 Conn. 931, 815 A.2d 135 (2003).
The petitioner filed his first habeas action on October
24, 2003. Following a trial, the first habeas court denied
the habeas petition, and this court dismissed the appeal.
Pereira v. Commissioner of Correction, 101 Conn. App.
397, 921 A.2d 665, cert. denied, 283 Conn. 906, 927 A.2d
918 (2007).1 The petitioner commenced the present
habeas action on May 2, 2013, and filed the operative
petition on January 21, 2016. The petitioner alleged,
inter alia, that his due process rights had been violated
as a result of his kidnapping conviction. Specifically,
he relied on our Supreme Court’s decision in State v.
Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), which
was released nearly one decade after the petitioner’s
conviction. He argued that as a result of Salamon’s
reinterpretation of our kidnapping statutes, his convic-
tion of kidnapping should be vacated.
At the February 2, 2016 habeas trial, the parties
agreed that certain documents, mostly transcripts,
would be entered into evidence by stipulation in lieu of
testimony. The parties further agreed to submit posttrial
briefs in lieu of oral argument.2 The court, Fuger, J.,
issued its memorandum of decision on May 12, 2016.
It denied the petition for a writ of habeas corpus, con-
cluding that the petitioner was not entitled to a Salamon
instruction3 and that even if he was entitled to such an
instruction, its absence constituted harmless error. The
habeas court subsequently denied the petition for certi-
fication to appeal. This appeal followed. Additional
facts will be set forth as necessary.
The petitioner claims that the habeas court abused
its discretion in denying his petition for certification to
appeal. After reviewing the record and the applicable
law, we conclude that the habeas court’s denial of the
petition for certification to appeal did not constitute
an abuse of discretion. Accordingly, we dismiss the
petitioner’s appeal.
As an initial matter, we set forth our standard of
review. ‘‘Faced with a habeas court’s denial of a petition
for certification to appeal, a petitioner can obtain appel-
late review of the dismissal of his petition for habeas
corpus only by satisfying the two-pronged test enunci-
ated by our Supreme Court in Simms v. Warden, 229
Conn. 178, 640 A.2d 601 (1994), and adopted in Simms
v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994).
First, [the petitioner] must demonstrate that the denial
of his petition for certification constituted an abuse of
discretion. . . . Second, if the petitioner can show an
abuse of discretion, he must then prove that the deci-
sion of the habeas court should be reversed on the
merits. . . . To prove that the denial of his petition for
certification to appeal constituted an abuse of discre-
tion, the petitioner must demonstrate that the [resolu-
tion of the underlying claim involves issues that] are
debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the
questions are adequate to deserve encouragement to
proceed further. . . .
‘‘In determining whether the habeas court abused
its discretion in denying the petitioner’s request for
certification, we necessarily must consider the merits of
the petitioner’s underlying claims to determine whether
the habeas court reasonably determined that the peti-
tioner’s appeal was frivolous. In other words, we review
the petitioner’s substantive claims for the purpose of
ascertaining whether those claims satisfy one or more
of the three criteria . . . adopted by [our Supreme
Court] for determining the propriety of the habeas
court’s denial of the petition for certification.’’ (Cita-
tions omitted; internal quotation marks omitted.) Sand-
ers v. Commissioner of Correction, 169 Conn. App. 813,
821–22, 153 A.3d 8 (2016), cert. denied, 325 Conn. 904,
156 A.3d 536 (2017); see also Bridges v. Commissioner
of Correction, 169 Conn. App. 742, 747, 152 A.3d 71
(2016), cert. denied, 324 Conn. 917, 154 A.3d 1008
(2017).
The claim presented by the petitioner, aptly described
by the habeas court as ‘‘relatively narrow and focused,’’
is that the absence of the Salamon instruction consti-
tuted a violation of his right to due process. In reviewing
this issue, we are mindful that the facts found by the
habeas court are subject to the clearly erroneous stan-
dard of review. Farmer v. Commissioner of Correction,
165 Conn. App. 455, 458, 139 A.3d 767, cert. denied, 323
Conn. 905, 150 A.3d 685 (2016). ‘‘The applicability of
Salamon and whether the court’s failure to give a Sala-
mon instruction was harmless error are issues of law
over which our review is plenary.’’ Id., 459.
Next, we briefly summarize the evolution of our kid-
napping law. At the time of the petitioner’s conviction,
our Supreme Court had established that ‘‘all that is
required under the [kidnapping] statute is that the
defendant have abducted the victim and restrained her
with the requisite intent. . . . Under the aforemen-
tioned definitions, the abduction requirement is satis-
fied when the defendant restrains the victim with the
intent to prevent her liberation through the use of physi-
cal force. . . . Nowhere in this language is there a
requirement of movement on the part of the victim.
Rather, we read the language of the statute as allowing
the restriction of movement alone to serve as the basis
for kidnapping. . . . [O]ur 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. . . . Furthermore, any argument that
attempts to reject the propriety of a kidnapping charge
on the basis of the fact that the underlying conduct was
integral or incidental to the crime of sexual assault also
must fail.’’ (Citation omitted; internal quotation marks
omitted.) Luurtsema v. Commissioner of Correction,
299 Conn. 740, 745–46, 12 A.3d 817 (2011).
Subsequent to the petitioner’s conviction of murder
and kidnapping, ‘‘our Supreme Court reinterpreted the
intent element of our kidnapping statutes. In State v.
Salamon, supra, 287 Conn. 542, it stated: Our legisla-
ture, in replacing a single, broadly worded 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 accompanying severe penalties
those confinements or movements of a victim that are
merely incidental to and necessary for the commission
of another crime against that victim. Stated otherwise,
to commit a 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 Supreme Court further noted that [w]hen that
confinement or movement is merely incidental to the
commission of another crime, however, the confine-
ment or movement must have exceeded that which was
necessary to commit the other crime. [T]he guiding
principle is whether the [confinement or movement]
was so much the part of another substantive crime that
the substantive crime could not have been committed
without such acts . . . . In other words, the test . . .
to determine whether [the] confinements or movements
involved [were] such that kidnapping may also be
charged and prosecuted when an offense separate from
kidnapping has occurred asks whether the confine-
ment, movement, or detention was merely incidental to
the accompanying felony or whether it was significant
enough, in and of itself, to warrant independent prose-
cution. . . . Conversely, 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.’’ (Internal quotation marks omitted.)
Robles v. Commissioner of Correction, 169 Conn. App.
751, 754–55, 153 A.3d 29 (2016), cert. denied, 325 Conn.
901, 157 A.3d 1146 (2017). Finally, we note that in Luurt-
sema v. Commissioner of Correction, supra, 299 Conn.
773, our Supreme Court adopted a general presumption
of retroactivity for Salamon in collateral proceedings.
See also Nogueira v. Commissioner of Correction, 168
Conn. App. 803, 808, 149 A.3d 983, cert. denied, 323
Conn. 949, A.3d (2016).
Next, we turn to the facts underlying the petitioner’s
conviction. ‘‘At the time of the incident giving rise to
his convictions, the [petitioner] was distraught because
his former girlfriend had terminated their relationship.
The [petitioner] still wanted to be with [her, but] she
didn’t want anything to do with [him]. In the wake of
this loss, the [petitioner] spent a great deal of his free
time at William MacLellan’s small basement apartment
in Waterbury. Through MacLellan, the [petitioner] met
the victim, Lisa Orgnon, in October, 1997. Over the
course of approximately one month, the [petitioner]
and the victim socialized at drinking establishments
in the Waterbury area a couple of times. The victim,
MacLellan and the [petitioner] planned to spend the
evening of November 18, 1997, together.’’ (Internal quo-
tation marks omitted.) State v. Pereira, supra, 72 Conn.
App. 547.
Beginning at approximately 9 p.m., the victim, the
petitioner and MacLellan went to two drinking estab-
lishments and consumed alcohol. Id., 547–48. After
returning to MacLellan’s apartment, the petitioner
asked the victim to accompany him to a movie theater
near his former girlfriend’s home in Southington, while
MacLellan elected to remain at his apartment. Id., 548.
The petitioner, who knew that the theater would be
closed, feigned surprise at this fact and asked the victim
to ‘‘ ‘drive around,’ ’’ but withheld information regarding
their destination. Id. They ultimately drove to the neigh-
borhood where his former girlfriend lived and parked
on an adjacent street. Id. The petitioner ‘‘did not inform
the victim that his former girlfriend lived in the area.’’ Id.
‘‘Although the reasons are unclear, the [petitioner]
suddenly got real mad at some point after the vehicle
halted. In the [petitioner’s] own words: You know, I
just—I just lost control. And I just began, I began to
swing at her. I don’t know why but I started punching
[the victim] in her face and head even though she had
done nothing wrong. I punched her four or five times.
She just tried to get away. The [petitioner] punched
the victim with such force that days later, he had abra-
sions on his knuckles . . . . As the victim attempted
to get away from the [petitioner’s] unprovoked assault,
the [petitioner] grabbed her by the neck and began to
strangle her. The [petitioner] choked the victim, crush-
ing her voice box and hemorrhaging the strap muscles
in her neck. The [petitioner] strangled the victim with
such force that the whites of her eyes turned blood red
from petechial hemorrhaging of the capillaries in her
conjunctiva. The victim buried her fingernails into the
[petitioner]. Forensic analysis later revealed that nine
of her ten fingernails had drawn blood in the melee.
The [petitioner] sustained scratches on his face and
neck, and all over his back and shoulders. Stymied by
the victim’s effective counterattack, the [petitioner] lost
his grip on the victim’s neck. She opened the door
and began to spill out, head first, onto the street. The
[petitioner] clutched and swiped at her in a futile effort
to regain dominance, but the victim kicked at him,
checking his renewed assault. The victim broke free
and sprinted down the road, away from [petitioner]. The
[petitioner] jumped into the driver’s seat and gunned
the engine, aiming the vehicle at the victim.
‘‘The [petitioner] slammed the car into the victim.
The front bumper shattered her right leg at a point
nine inches from her heel. Expert forensic evidence
introduced at trial indicated that this was a fairly typical
pedestrian type [of] injury, where the bumper would
strike the lower leg . . . . The vehicle’s right front
wheel ran over the victim and her body smashed into
the undercarriage. The [petitioner] continued to run
over the victim and felt the rear transaxle vault over
her body. The [petitioner] later stated that he wasn’t
sure whether he put the car in reverse to run her over
again. The street was littered with blood in a long trail
resulting from how he, in his own words, dragged her
up the road. [As a result, the victim sustained numerous
and significant injuries.] . . .
‘‘The [petitioner] then stopped the car, stepped out
and approached the victim’s body. In his own words,
the [petitioner] kicked the victim in the head and neck
five or six more times until she wasn’t moving at all
[anymore]. Finally satisfied that he had killed the victim,
the [petitioner] dragged her body out of sight, hiding it
in some icy brush over a ridge at the side of the road.
The [petitioner] drove the victim’s car back to his home
town of Waterbury and dumped it in a church parking
lot. He walked the rest of the way home.
‘‘The victim . . . died in the early morning of Novem-
ber 19, 1997. The medical examiner certified the cause
of death to be multiple blunt force trauma of the head
and chest. The medical examiner found no sign of any
natural cause that would otherwise account for her
death.
‘‘It was life as usual for the [petitioner] that day. He
awoke at the ordinary time and arrived at the site of
his job with his father’s construction company. How-
ever, after the victim’s mother reported the victim miss-
ing, the Naugatuck police interrupted the [petitioner’s]
schedule, asking him for information. The [petitioner]
initially denied ever being with the victim in South-
ington, telling the police that the victim drove [him]
directly home after dropping MacLellan at his house.
After the body was found, however, the [petitioner]
admitted that he had, in fact, killed her.’’ (Emphasis
added; footnotes omitted; internal quotation marks
omitted.) State v. Pereira, supra, 72 Conn. App. 549–51.
The petitioner’s appellate brief presents two specific
and distinct theories that, in his view, warranted a Sala-
mon instruction. First, the petitioner claims that ‘‘the
events inside of the car were a separate, uncharged
assault against the victim’’ and that he was entitled
to a Salamon instruction because the restraint was
incidental to that uncharged assault.4 Second, the peti-
tioner contends that there was a single, continuous
crime, starting when he first struck the victim inside
the car and ending with her death, and because he was
charged with kidnapping and murder, he was entitled
to a Salamon instruction. With respect to the former
claim, the respondent, the Commissioner of Correction,
counters that this theory was not raised before and
never decided by the habeas court. As to the latter
contention, the respondent maintains that the habeas
court properly concluded that because the restraint and
confinement of the victim occurred separately from and
were completed prior to the murder, the kidnapping
was not incidental to and necessary for the murder,
and, therefore, a Salamon instruction was not required.
We agree with the respondent with respect to both
theories.
A
We first address the petitioner’s claim regarding the
uncharged assault that occurred inside the car. The
operative petition for a writ of habeas corpus contained
two broad allegations: first, that his due process rights
were violated as a result of the kidnapping conviction,
and, second, at the time of the conviction, ‘‘the kidnap-
ping statute was invalid and unconstitutional.’’5 The
petitioner failed to include a specific allegation regard-
ing the kidnapping charge and an uncharged assault
while the petitioner and victim were inside the car.
Similarly, in his posttrial brief, the petitioner again failed
to present this specific claim; instead, he focused on
continuing criminal conduct involving the crimes of
murder and kidnapping. Finally, the habeas court’s
memorandum of decision did not address the issue of
the kidnapping charge and the uncharged assault.
The petitioner failed to raise before the habeas court
a Salamon claim as to the uncharged assault that
occurred in the car. ‘‘A reviewing court will not consider
claims not raised in the habeas petition or decided by
the habeas court. . . . Appellate review of claims not
raised before the habeas court would amount to ambus-
cade of the [habeas] judge.’’ (Citations omitted; internal
quotation marks omitted.) Henderson v. Commissioner
of Correction, 129 Conn. App. 188, 198, 19 A.3d 705,
cert. denied, 303 Conn. 901, 31 A.3d 1177 (2011); see
also Giattino v. Commissioner of Correction, 169
Conn. App. 566, 580, 152 A.3d 558 (2016); Taylor v.
Commissioner of Correction, 154 Conn. App. 686, 701,
108 A.3d 238 (2015) (specific claim of ineffective assis-
tance of counsel not reviewed on appeal), aff’d, 324
Conn. 631, 153 A.3d 1264 (2017); Trotter v. Commis-
sioner of Correction, 139 Conn. App. 653, 657 n.2, 56
A.3d 975 (2012) (same), cert. denied, 308 Conn. 901, 60
A.3d 286 (2013).
Additionally, the petition for certification to appeal
from the denial of his habeas petition did not include
a Salamon claim on the basis of the uncharged assault.6
We have stated that ‘‘[b]ecause it is impossible to review
an exercise of discretion that did not occur, we are
confined to reviewing only those issues which were
brought to the habeas court’s attention in the petition
for certification to appeal.’’ (Internal quotation marks
omitted.) Blake v. Commissioner of Correction, 150
Conn. App. 692, 697, 91 A.3d 535, cert. denied, 312
Conn. 923, 94 A.3d 1202 (2014); see also Stenner v.
Commissioner of Correction, 144 Conn. App. 371, 374–
75, 71 A.3d 693, cert. denied, 310 Conn. 918, 76 A.3d
633 (2013); Campbell v. Commissioner of Correction,
132 Conn. App. 263, 267, 31 A.3d 1182 (2011); Mercado
v. Commissioner of Correction, 85 Conn. App. 869, 872,
860 A.2d 270 (2004), cert. denied, 273 Conn. 908, 870
A.3d 1079 (2005). For these reasons, we decline to con-
sider this claim.7
B
We now turn to the petitioner’s claim that there was
a single, continuous crime, starting when he struck the
victim inside the car, and ending with her death outside
of the car. The petitioner contends that, contrary to the
conclusion reached by the habeas court, he was entitled
to a Salamon instruction because the evidence reason-
ably supported a finding that the restraint that occurred
in the car was merely incidental to the commission of
the murder. We disagree.
Following the Salamon reinterpretation, ‘‘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.
. . . [T]here are instances where a defendant may be
convicted 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.’’ (Citation omitted; internal
quotation marks omitted.) Eric M. v. Commissioner of
Correction, 153 Conn. App. 837, 843–44, 108 A.3d 1128
(2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015).
A brief recitation of the facts and circumstances of
this case is necessary to explain why there was not a
single, continuous crime in this case and therefore a
Salamon instruction was not required in conjunction
with the murder charge. At the criminal trial, the state
produced evidence that the petitioner had been sitting
with the victim in a car parked near his former girl-
friend’s house. He suddenly began to strike her in the
face. During this altercation, the victim attempted to
escape from inside the car, and partially fell out of the
car. At one point, the petitioner had either his hands
or arm around her neck. The petitioner admitted to a
police officer that he performed this action for two
reasons: first, he wanted to prevent the victim from
getting away from him, and, second, to choke her.
Despite the petitioner’s assault, the victim was able to
free herself from the petitioner’s restraint, to escape
from the interior of the car and to sprint down the road.
The petitioner then moved to the driver’s seat, and he
drove the car into and over the victim, dragging her up
the road. He exited the car, kicked the victim numerous
times in the face and body, dragged her across the street
and left her behind the brush.
As a general matter, when the state charges a defen-
dant with kidnapping and another criminal offense, a
Salamon instruction ordinarily must be given. White v.
Commissioner of Correction, 170 Conn. App. 415, 425,
154 A.3d 1054 (2017); see also State v. Fields, 302 Conn.
236, 247, 24 A.3d 1243 (2011). If, however, the restraint
that forms the basis for the kidnapping has criminal
significance separate from the underlying offense, then
the instruction is not required. State v. Fields, supra,
248. Put another way, ‘‘our Supreme Court limited Sala-
mon to cases in which the state cannot establish that
the restraint involved had independent criminal signifi-
cance as the predicate conduct for a kidnapping.’’ State
v. Golder, 127 Conn. App. 181, 190, 14 A.3d 399, cert.
denied, 301 Conn. 912, 19 A.3d 180 (2011).
The present case differs from the majority of other
cases involving Salamon claims;8 that is, the criminal
conduct inside the car had been completed prior to the
commission of the murder.9 The petitioner committed
a kidnapping when both he and the victim were inside
the car; namely, after he began to strike her, he grabbed
her by the neck and he strangled her. He admitted to
the police that this was done with a dual purpose—to
choke the victim and to keep her from getting away.
Despite his efforts, the victim was able to break free
from the petitioner’s restraint and get out of the car.
Our Supreme Court has stated that a kidnapping, a
crime involving the interference with a victim’s liberty,
ends when that liberty has been restored. State v.
Gomez, 225 Conn. 347, 351, 622 A.2d 1014 (1993). The
victim freed herself from the petitioner’s restraint by
getting out of the car, and thus the criminal conduct
inside the car had been completed. At that point, the
petitioner moved to the driver’s seat, and he drove the
car into the victim, eventually causing her death.
Because the criminal conduct that occurred inside
the car had been completed before the murder, that
conduct had criminal significance independent from
the events that occurred after she escaped. See State
v. Ayala, 133 Conn. App. 514, 523, 36 A.3d 274, cert.
denied, 304 Conn. 913, 40 A.3d 318 (2012). In other
words, because that criminal conduct was completed
before the petitioner’s actions that caused the death of
the victim, the restraint was not necessary to complete
the murder. See State v. Golder, supra, 127 Conn. App.
190. This restraint had its own independent significance
separate from the subsequent murder. See id., 191.
Therefore, the rule of Salamon does not apply. See
id., 190.
In sum, we conclude that the two crimes of which
the petitioner was convicted were sufficiently discon-
nected; see Wilcox v. Commissioner of Correction, 162
Conn. App. 730, 747, 129 A.3d 796 (2016); therefore, a
Salamon instruction was not required. Further, we are
not persuaded that this issue was debatable among
jurists of reason, could be resolved in a different man-
ner, or presented a question that was adequate to
deserve encouragement to proceed further. Accord-
ingly, we conclude that the habeas court did not abuse
its discretion in denying certification to appeal.
The appeal is dismissed.
In this opinion the other judges concurred.
1
The petitioner had claimed that he received the ineffective assistance
of trial counsel and that he had been denied access to counsel. Pereira v.
Commissioner of Correction, supra, 101 Conn. App. 398. The habeas court
rejected both of these claims, and denied certification to appeal. Id. On
appeal, this court concluded that the petitioner failed to establish that the
habeas court abused its discretion in denying certification to appeal. Id.,
400–401.
2
In his posttrial brief, the petitioner argued that ‘‘it was an ongoing strug-
gle, from the moment that the petitioner initially hit the victim, it was a
continuous act upon the victim. . . . Because the petitioner’s entire conduct
was one continuous activity in the commission of the act of murder . . .
any restraint against the victim was entirely incidental to the murder of the
victim. There is simply not one point where it can be said that a jury could
clearly determine that the petitioner was guilty of kidnapping because his
intended restraint of the victim was for a longer period of time or a greater
extent to commit the murder for which he was convicted.’’
In turn, the respondent, the Commissioner of Correction, argued in his
posttrial brief that the intent required by Salamon existed because ‘‘the
petitioner’s restraint concluded before he committed the murder.’’ He also
claimed that her escape served as a ‘‘break in the chain’’ between the
kidnapping and the murder. Additionally, the respondent noted that peti-
tioner intended to prevent the victim from summoning help by restraining
her inside the car.
3
The habeas court first concluded that the holding of Salamon was retro-
actively applicable to the petitioner’s claim. See, e.g., Hinds v. Commis-
sioner of Correction, 321 Conn. 56, 60, 136 A.3d 596 (2016); Luurtsema v.
Commissioner of Correction, 299 Conn. 740, 773, 12 A.3d 817 (2011). It then
concluded that the kidnapping in the present case did not fall within the
ambit of the rule established in Salamon because the movement or restraint
of the victim inside the car had independent significance from the murder
that occurred outside of the car and after the victim had escaped. The
habeas court also noted that the strangulation of the victim prevented her
from escaping the attack inside the car. ‘‘In other words, the petitioner’s
restriction of the victim had clearly defined and distinct significance from
the subsequent murder. There is, contrary to the petitioner’s argument, a
point where a reasonable fact finder could clearly determine that the
restraint of the victim was not incidental to the murder itself.’’ In the words of
the habeas court, the petitioner’s claim of one continuous series of criminal
activity constituted nothing more than ‘‘a proverbial red herring.’’
4
The fact that the petitioner was not charged with assault or attempted
murder as a result of his conduct in the interior of the car is not dispositive.
In State v. Salamon, supra, 287 Conn. 550–51 n.35, our Supreme Court stated:
‘‘As we noted previously, the defendant ultimately was not tried for assault.
We nevertheless conclude that a defendant is entitled to an instruction that
he cannot be convicted of kidnapping if the restraint imposed on the victim
was merely incidental to the assault, regardless of whether the state elects
to try the defendant for assault, because the facts reasonably would support
an assault conviction. . . . To conclude otherwise would give the state
carte blanche to deprive the defendant of the benefit of such an instruction
merely by declining to charge him with the underlying crime, which, as in
the present case, generally will carry a far less serious maximum possible
penalty than the kidnapping charge.’’ (Citations omitted.) See also Franko
v. Commissioner of Correction, 165 Conn. App. 505, 521–22, 139 A.3d
798 (2016).
5
The habeas court correctly noted that State v. Salamon, supra, 287 Conn.
509, ‘‘and its progeny have never held that the kidnapping statute was invalid
and unconstitutional, so that claim has no legal support whatsoever.’’
6
In the grounds for certification to appeal, the petitioner set forth the
following: ‘‘Whether or not the habeas court erred in finding that the peti-
tioner was not entitled to a Salamon jury instruction regarding his kidnap-
ping conviction, as to whether or not the facts of his case were incidental
to the main charge to warrant a Salamon jury instruction . . . .’’
7
This reasoning also applies to the petitioner’s claims regarding an
uncharged attempt to commit murder.
8
But see State v. Kitchens, 299 Conn. 447, 453, 10 A.3d 942 (2011) (state
argued on appeal that kidnapping was complete before conduct that led to
assault and attempted assault charges; Supreme Court decided case on
harmless error grounds).
9
As succinctly and accurately stated by the habeas court: ‘‘The murder
took place outside the car. The restraint took place inside the car.’’