Banks v. Commissioner of Correction

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BANKS v. COMMISSIONER OF CORRECTION—DISSENT
KELLER, J., dissenting. I respectfully dissent. I con-
clude that under the facts and circumstances of this
case, as well as the analysis established in our Supreme
Court precedent, the absence of the instruction man-
dated by State v. Salamon, 287 Conn. 509, 949 A.2d
1092 (2008), was harmless beyond a reasonable doubt.
I do not believe there is a reasonable probability that
a properly instructed jury would reach a different result
based on its required analysis of the factors enunciated
in Salamon. Therefore, I would affirm the judgment of
the habeas court denying the amended petition for a
writ of habeas corpus filed by the petitioner, Mark
Banks.
The majority correctly states both the standard of
review and the burden of the respondent, the Commis-
sioner of Correction. Thus, I begin with a discussion
of the Salamon decision, because I believe the majority
strays too far from the rule enunciated therein, which
distinguishes a kidnapping from a restraint that is inci-
dental to and necessary for the commission of some
other crime against a victim.1
The facts in Salamon involved the defendant being
charged with kidnapping in the second degree as a
result of the following conduct.2 ‘‘The victim disem-
barked the train in Stamford and began walking toward
a stairwell in the direction of the main concourse. At
that time, the victim noticed the defendant, who was
watching her from a nearby platform. As the victim
approached the stairwell, she observed that the defen-
dant was following her. The defendant continued to
follow the victim as she ascended the stairs. Before
the victim reached the top of the stairs, the defendant
caught up to her and grabbed her on the back of the
neck, causing her to fall onto the steps. The victim, who
had injured her elbow as a result of the fall, attempted
to get up, but the defendant, who had positioned himself
on the steps beside her, was holding her down by her
hair. The victim screamed at the defendant to let her
go. The defendant then punched the victim once in the
mouth and attempted to thrust his fingers down her
throat as she was screaming. Eventually, the victim was
able to free herself from the defendant’s grasp, and
the defendant fled. . . . According to the victim, the
altercation with the defendant lasted at least five
minutes.’’ Id., 515.3
In Salamon, our Supreme 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 noted that the issue in Salamon
‘‘directly implicates only a relatively narrow category
of criminal cases, that is, kidnapping cases in which
the restraint involved is incidental to the commission
of another crime.’’ Id., 523.
‘‘First, in order to establish a kidnapping, the state
is not required to establish any minimum period of
confinement or degree of movement. When that con-
finement or movement is merely incidental to the com-
mission of another crime, however, the confinement or
movement must have exceeded that which was neces-
sary 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 substan-
tive 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 confinement, movement,
or detention was merely incidental to the accompanying
felony or whether it was significant enough, in and of
itself, to warrant independent prosecution. . . .
‘‘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. Whether the movement or confinement of the
victim is merely incidental to and necessary for another
crime will depend on the particular facts and circum-
stances 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. . . .
‘‘Second, we do not retreat from the general principle
that an accused may be charged with and convicted of
more than one crime arising out of the same act or
acts, as long as all of the elements of each crime are
proven. Indeed, because the confinement or movement
of a victim that occurs simultaneously with or incidental
to the commission of another crime ordinarily will con-
stitute a substantial interference with that victim’s lib-
erty, such restraints still may be prosecuted under the
unlawful restraint statutes. Undoubtedly, many crimes
involving restraints already are prosecuted under those
provisions.’’ (Citations omitted; emphasis added; foot-
notes omitted; internal quotation marks omitted.) Id.,
546–48. Our Supreme Court noted that the rule of Sala-
mon ‘‘is relatively narrow and directly affects only those
cases in which the state cannot establish that the
restraint involved had independent significance as the
predicate conduct for a kidnapping’’ and would not
‘‘force a major shift in prosecutorial decision making.’’
Id., 548.
The Supreme Court also stated that ‘‘[f]or purposes
of making [the] determination [of whether a criminal
defendant’s movement or confinement of a victim was
necessary or incidental to the commission of another
crime] the jury should be instructed to consider the
various relevant factors, including [1] the nature and
duration of the victim’s movement or confinement by
the defendant, [2] whether that movement or confine-
ment occurred during the commission of the separate
offense, [3] whether the restraint was inherent in the
nature of the separate offense, [4] whether the restraint
prevented the victim from summoning assistance, [5]
whether the restraint reduced the defendant’s risk of
detection and [6] whether the restraint created a signifi-
cant danger or increased the victim’s risk of harm inde-
pendent of that posed by the separate offense.’’ Id. I
believe an analysis of the Salamon factors, half of which
the majority does not analyze in any detail, requires
affirmance of the kidnapping convictions in this case.
Prior appeals addressing the lack of a Salamon
instruction at a criminal trial in which the defendant
or habeas petitioner was convicted of both kidnapping
and an underlying offense reveal that the determination
of whether the absence of such an instruction was harm-
less beyond a reasonable doubt is highly dependent on
the facts and circumstances of each case. ‘‘Analyses of
Salamon claims have focused on a variety of factors
in determining whether a kidnapping conviction can
stand, but the timing, location, and manner in which
the [petitioner] commits criminal acts against a victim
are particularly crucial factors.’’ Wilcox v. Commis-
sioner of Correction, 162 Conn. App. 730, 743, 129 A.3d
796 (2016).
After Salamon, this court and our Supreme Court
have concluded that restraining a victim for a brief
duration in connection with an underlying offense can
still constitute kidnapping. See State v. Ward, 306 Conn.
718, 736–37, 51 A.3d 970 (2012); State v. Lewis, 148
Conn. App. 511, 517, 84 A.3d 1238, cert. denied, 311
Conn. 940, 89 A.3d 349, cert. denied, U.S. , 135
S. Ct. 132, 190 L. Ed. 2d 101 (2014); State v. Ayala, 133
Conn. App. 514, 522–23, 36 A.3d 274, cert. denied, 304
Conn. 913, 40 A.3d 318 (2012).4
This court has observed that the movement and con-
finement of a victim after the defendant commits the
underlying offense is more likely to have independent
criminal significance. See White v. Commissioner of
Correction, 170 Conn. App. 415, 436, 154 A.3d 1054
(2017); see also State v. Golder, 127 Conn. App. 181,
190–91, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d
180 (2011). In State v. Golder, supra, 183, the defendant
entered the victim’s residence with the intent to steal
her jewelry. Upon unexpectedly encountering the vic-
tim inside the residence as she walked toward her bed-
room, the defendant 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 after the victim told him she was claustropho-
bic and asthmatic, and moved her instead to the bed-
room. 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 . . . 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. On the basis of
these facts, this court concluded that there was no
reasonable possibility that the jury was misled by the
lack of a Salamon instruction. Id., 191.
Faced with a similar issue, this court reached the
same result in Nogueira v. Commissioner of Correc-
tion, 168 Conn. App. 803, 845, 149 A.3d 983, cert. denied,
323 Conn. 949, 169 A.3d 792 (2016), and concluded
that a reasonable fact finder could not find that the
petitioner’s restraint and confinement of the victim was
incidental to and necessary for the completion of his
crime of sexual assault. The petitioner in Nogueira was
convicted of kidnapping and sexual assault following
a trial to the court, but claimed in a subsequent habeas
proceeding that the kidnapping conviction did not com-
ply with the principles set forth in Salamon. Id., 809.
This court disagreed because the petitioner dragged the
victim approximately 113 feet to a window well, where
he sexually assaulted her for two hours. Id., 838. By
moving the victim to the window well, the petitioner
decreased his risk of detection and increased the risk
of harm to the victim because the window well was
lined with rocks. Id., 841–42. Moreover, the window well
served as a secondary form of restraint and hindered
the victim’s ability to escape. Id., 842.
In light of the principles of Salamon and guided by
the cases which have applied those principles, I con-
clude that the respondent in the present case has met
the burden of establishing that the lack of a Salamon
instruction in the petitioner’s underlying criminal trial
was harmless beyond a reasonable doubt. On the basis
of my review of the record and my cognizance of the
dictates of Salamon, I conclude that when presented
with the facts of the underlying crime, a reasonable jury
could not find the petitioner’s restraint of the victims
in each of the cases against him to have been incidental
to and necessary for the commission of the robberies.
I agree with the habeas court’s conclusion that the
evidence in the record demonstrates that the petition-
er’s restraint and abduction of the victims were suffi-
ciently distinct from his crimes of robbery to constitute
independently significant kidnappings.
The following facts were before the jury when it
reached its verdict in the first case. With respect to the
earlier of the two robberies, on direct examination,
Michael Kozlowski testified that he was working at the
Newington Bedding Barn on August 30, 1995, at about
9 p.m. As Kozlowski prepared to close the store, the
petitioner entered. Kozlowski testified that he
approached the petitioner with the belief that the peti-
tioner was a customer. When Kozlowski showed the
petitioner a king-size bed, the petitioner said, ‘‘let me
count my money,’’ and reached into his bag and pro-
duced a gun. Kozlowski testified that the petitioner said,
‘‘[d]on’t try anything, I’ll bust you one, just walk over
to the register.’’ The petitioner then told him to get
behind the counter and pointed his gun at Kozlowski’s
chest. Kozlowski testified that, after the petitioner took
the money from the cash register and a wallet from his
coworker, Howard Silk, ‘‘[the petitioner] moved us . . .
down to the hallway into the bathroom and . . . he
then put us into the bathroom and put a mop handle
or something behind the door.’’ Kozlowski testified that
the petitioner, as they walked down the hallway to the
bathroom, said, ‘‘[d]on’t try anything; I’ll blow your head
off . . . .’’ Kozlowski indicated that after the petitioner
closed the bathroom door and locked Kozlowski and
Silk in there, ‘‘we ducked down thinking he was going
to shoot through the door because it was only a piece
of plywood, basically, and [a] couple of minutes after,
we heard a bell, which is on the front door, [which
rings whenever someone enters or leaves the store]
. . . we then . . . kicked the door, basically, and
went downstairs.’’
Silk testified that he also was working at the Newing-
ton Bedding Barn during the evening of August 30, 1995.
Silk stated that, as he was in the process of closing the
store, he noticed the petitioner following Kozlowski
toward the counter. As the petitioner and Kozlowski
approached, Silk realized that the petitioner was point-
ing a gun at Kozlowski’s back. Silk testified that the
petitioner told Kozlowski and Silk that he wanted the
money, so Kozlowski took the money from the register
as the petitioner pointed the gun at Silk’s chest. After
Silk told the petitioner that there was no safe inside
the store, the petitioner led Silk and Kozlowski toward
the back of the store at gunpoint. Silk testified that he
handed the petitioner the $17 in his wallet and then,
the petitioner ‘‘proceeded to put us into the bathroom
area’’ and attempted to jam the door with a mop handle.
Silk testified that he believed that the petitioner put
them in the bathroom so that he could escape and that
after less than two minutes, he heard the bell ring that
‘‘goes off when [the door] opens and . . . [he] hoped
that [the bell rung] when [the petitioner] left.’’ After
waiting for thirty seconds after hearing the doorbell
ring, Silk and Kozlowski were easily able to open the
bathroom door. Silk testified that they went downstairs
into the basement of the building to the warehouse
there to call 911 and wait for the police to arrive in the
event that the petitioner was still on the first floor.
In the second case, Kelly Wright testified that she
was working at the Southington Bedding Barn on Sep-
tember 13, 1995. She recalled that at 8:55 p.m., five
minutes before the store was set to close, while Wright’s
roommate, Idelle Feltman, was waiting in the store to
take her home, the petitioner and an unidentified female
entered the store. Wright testified that the petitioner
and the female split up and appeared to be shopping
for king-size beds. Wright testified that she was sitting
behind the store counter when the petitioner arrived
and that she rose in order to greet him because it was
store policy to do so whenever a potential customer
arrived. Before Wright could make it around the
counter, however, the petitioner told her to get on the
floor. Wright testified that she noticed that the peti-
tioner had a gun in his hand and was holding it out
parallel to the floor. The petitioner told Feltman to get
the money from the register. Feltman gave the peti-
tioner the money in the register in a bank bag. Wright
testified that the petitioner then inquired if there was
a basement in the store, and Feltman responded by
telling the petitioner that there was no basement, but
there was a bathroom. Wright testified that the peti-
tioner led her and Feltman to the bathroom at gunpoint
and told them to enter the bathroom, lock the door,
and ‘‘not to be a hero, let the cops do their jobs.’’ Wright
stated that she heard a buzzer go off, which indicated
that the door to the store had been opened. She and
Feltman waited for a ‘‘little bit,’’ unlocked the door, and
left the bathroom to call 911. Wright estimated that
about five to six minutes elapsed between the time the
petitioner entered the store to the time she and Wright
were able to contact the police.
Feltman testified that she went to the Southington
Bedding Barn to pick up Wright from work because the
two planned to go out to dinner. During her testimony,
she recalled that two people, the petitioner and a
woman, entered the store right before closing and that
the pair split up after they entered the store. Feltman
testified that the petitioner approached the counter and
removed a gun from his bag. He waved the gun and
told her to give him the money in the register. Feltman
emptied the register, which contained less than $100,
and handed the money to the petitioner. Feltman testi-
fied that after he obtained the money, the petitioner
inquired whether there was a basement in the store,
and that Feltman and Wright replied that there was no
basement, but there was a bathroom. Feltman stated
that the petitioner led her and Wright in a single-file
line to the bathroom and then instructed them to enter,
while aiming the gun at them and causing them to be
scared.5 Feltman and Wright entered the bathroom and
waited a minute or two after they heard the door buzzer
that indicated someone had entered or left the store.
At this point, the two left the bathroom and found a
mattress that had been placed in the narrow hallway
leading to the bathroom as a ‘‘barricade . . . .’’ Feltman
testified that she pushed it off to the side and ‘‘walked
right through.’’
The petitioner argues that the habeas court improp-
erly concluded that the lack of a Salamon instruction
was harmless beyond a reasonable doubt. On the basis
of my review of the record in the present cases, I con-
clude that the lack of an instruction was harmless
because I am persuaded beyond a reasonable doubt
that the omission of an instruction on incidental and
necessary restraint did not contribute to the verdict. In
doing so, I, unlike the majority, set forth an analysis of
all of the Salamon factors.
With respect to the first factor, the petitioner asserts
that the nature and duration of the victims’ movement
or confinement supports his claim because the confine-
ment lasted only a few minutes and the victims were
moved a short distance. Although the respondent must
prove that the petitioner restrained and abducted the
victims, proof ‘‘of kidnapping does not require proof
that the victim was confined for any minimum period
of time or moved any minimum distance.’’ State v. Sala-
mon, supra, 287 Conn. 531–32. In order to ‘‘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. With respect to the nature of the confinement,
the petitioner led the victims to the bathrooms at gun-
point under the threat of deadly force. The explicit
threat of death constitutes sufficient control of the vic-
tims’ liberation to support a kidnapping conviction. See
State v. Ayala, supra, 133 Conn. App. 522–23 (implicit
threat against victim’s life constitutes sufficient confine-
ment to prevent victim’s liberation). Though the short-
term duration of the victims’ confinement does support
the petitioner’s claim that he is entitled to a new trial
on the kidnapping charge, the petitioner’s conduct,
viewed in its entirety, evinces that he intended to
frighten the victims, prevent their escapes and restrain
them beyond what was necessary to commit the robber-
ies. The short period of restraint does not outweigh the
fact that the petitioner confined the victims at gunpoint
after his prior activities in the stores had met all the
elements of robbery in the first degree in violation of
General Statutes § 53a-134 (a) (4). A jury could not
reasonably conclude that the nature and manner of
confinement of the victims by forcing them into the
bathrooms with the threat of deadly force after the
petitioner obtained the money was merely incidental
to and necessary for the commission of the robberies.
Rather than finding that the movement and confinement
of the victims at gunpoint was incidental to and neces-
sary to complete the robberies, reasonable jurors would
undoubtedly find that a kidnapping also occurred
because the defendant needlessly moved and confined
the victims at gunpoint in order to further advance, or
facilitate, his commission of the robberies.
Like the majority, I would conclude that the second
factor weighs in the petitioner’s favor. The evidence
demonstrates that the petitioner’s movement and con-
finement of the victims occurred during the commission
of the robbery.6
With respect to the third factor, I observe that the
petitioner asserts that because the restraint of the vic-
tims occurred contemporaneously with the robberies,
a reasonable juror could consider that the restraint was
merely incidental to the robberies. Restraint, however,
is not an element of the crime of robbery; the inquiry
is whether the restraint was incidental to and necessary
for the commission of the robberies in these particular
cases. See White v. Commissioner of Correction, supra,
170 Conn. App. 436. Restraint that occurs after the
underlying crime already has been committed supports
the conclusion that the lack of a Salamon instruction
was harmless error. See State v. Golder, supra, 127
Conn. App. 190–91. Once the petitioner obtained the
money from the registers at gunpoint, his conduct satis-
fied all the elements of robbery in the first degree.
Although the use of force after taking money can be
viewed as part of the continuum of conduct that can
constitute the crime of robbery; State v. Ghere, 201
Conn. 289, 297, 513 A.2d 1226 (1986); the relevant
inquiry under Salamon is not whether the crime of
robbery was still ongoing, but whether the use of force
‘‘exceed[ed] that which was necessary to accomplish
or complete’’ the robbery. (Emphasis added.) State v.
Salamon, supra, 287 Conn. 547. The petitioner ‘‘may be
convicted of both kidnapping and another substantive
crime if, at any time prior to, during or after the com-
mission of that other crime, the victim is moved or
confined in a way that has independent criminal signifi-
cance, that is, the victim was restrained to an extent
exceeding that which was necessary to accomplish or
complete the other crime.’’ (Emphasis added.) Id. The
analysis does not need to pinpoint a precise moment
when the crime of robbery ended because the petition-
er’s threatened use of force in leading the victims to
the bathroom can be considered as occurring during
the commission of the simultaneous crimes of robbery
and kidnapping, and the prolonged use of force was
not necessary to complete the robberies. Once the peti-
tioner obtained the money from the register, he could
have left the stores. Instead of leaving immediately,
however, the petitioner led the victims to isolated parts
of the stores at gunpoint and threatened to use deadly
force. Cf. State v. Flores, 301 Conn. 77, 80–83, 17 A.3d
1025 (2011) (defendant entitled to new trial with Sala-
mon instruction when use of force occurred solely in
connection with commission of robbery and defendant
immediately departed from scene after completing
robbery).
Key facts that persuaded our Supreme Court in Flores
that the lack of a Salamon instruction in that case could
not be considered harmless beyond a reasonable doubt
are absent in the present case. Specifically, in Flores,
the restraint of the victim occurred at the location the
defendant initially found the victim and occurred prior
to the taking of any property, while the defendant and
his accomplices searched that room for valuables. Addi-
tionally, the victim recognized the defendant in Flores,
which alleviated her fear, and the victim was released
immediately after the defendant and his accomplices
had taken possession of the valuables. By contrast, the
petitioner in the present case moved the victims, and
confined them in a more secluded location and ensured
that they did not emerge until after he escaped. Addi-
tionally, nothing in the present case alleviated the vic-
tims’ fear. There is evidence that the petitioner’s
conduct after acquiring the money actually increased
the victims’ fear. Although, as our Supreme Court recog-
nized in Flores, whether the use of force is necessary
to complete the underlying crime is generally a question
of fact for the jury, the factual dissimilarities in the
present case when compared to Flores highlight why
a reasonable jury would be precluded from finding that
the petitioner’s conduct did not constitute kidnapping.
As previously stated, I do not view the petitioner’s
restraint of the victims as incidental to and necessary
to commit the robberies. Although the petitioner’s
threatened use of force in moving or confining a victim
can be considered as occurring during the commission
of the simultaneous crimes of robbery and kidnapping,
his prolonged use of that threat of force cannot reason-
ably be considered as incidental to and necessary for
the completion of the robberies. After the petitioner
took possession of the money, his decision to move
and confine the victims in a more secluded location
can be viewed as an inflection point that shifts how
a reasonable jury would view the significance of the
petitioner’s continuing use of the threat of force. As
the evidence in the record reveals, the victims believed
that the defendant’s initial use of force upon entering
the stores was to effectuate his goal of taking posses-
sion of the money. Once the petitioner possessed the
money, the continued threat of deadly force to move
the victims to a secluded part of the stores prolonged
their fear and facilitated his escape. Viewing the peti-
tioner’s conduct in this light is not an unduly legalistic
syllogism because the decisions the petitioner made
increased the harmful and terrorizing impact on the
victims.
Turning my attention to the fourth and fifth factors,
I observe that the petitioner also argues that the victims
were not prevented from summoning assistance and
that the restraint did not make it easier for him to
escape. The facts, however, reflect that this assertion
is incorrect because the restraint of the victims, which
was not incidental to and necessary for completion of
the robberies, facilitated the petitioner’s escape. After
the petitioner obtained the money, the victims were
led into the bathrooms at gunpoint. The victims were
neither able to call 911 as the petitioner led them to
the bathrooms, nor were they able to summon assis-
tance from inside the bathrooms. Moreover, out of fear
that the petitioner was still in the stores, the victims
remained in the bathrooms even after they heard the
doorbells. It was not until the petitioner had escaped
that the victims were able to call for help. The petitioner
also made it more difficult for the victims to seek assis-
tance by propping a broom or mop handle against the
door after forcing the victims into bathroom at the
Newington Bedding Barn and partially blocking the hall-
way leading from the bathroom with a mattress as he
departed the Southington Bedding Barn. Even if the
victims were able to get past these obstacles without
great difficulty, the obstacles increased the amount of
time that elapsed before the victims were able to sum-
mon assistance. For the same reasons that I conclude
that the petitioner’s actions facilitated his escape and
prevented the victims from seeking assistance, I con-
clude that the petitioner, by placing the victims in the
bathroom, decreased his risk of detection. By hindering
the victims’ ability to call for help, the petitioner was
able to get farther away from the crime scenes before
emergency responders were aware of the crimes.
Last, with respect to the sixth factor, the petitioner
argues that the victims were not placed at risk of harm
independent of that posed by the robberies. The facts
in these cases reflect that this assertion is incorrect
because the victims were subjected to an additional
risk of both physical and emotional harm. In order to
lead the victims to the bathrooms, the petitioner kept
his gun targeted on them for a greater length of time
than was necessary to effectuate the crime of robbery.
This was inherently dangerous simply because the gun
could have discharged due to a malfunction or an acci-
dent at any time. Furthermore, it increased the risk of
a catastrophe because the victims, fearing for their lives,
may have attempted to flee, resist or overcome the
petitioner. The petitioner’s actions after he obtained the
money caused the victims to suffer additional emotional
distress. As the evidence in the record reveals, the peti-
tioner’s decision to lead the victims down narrow corri-
dors, to secluded parts of the stores, hidden from public
view, caused the victims additional fear.7 The impact
of this additional fear-provoking behavior would not
have occurred if the petitioner had just left the stores
after he took possession of the money.8
Under the facts and circumstances of this case, I
conclude that a reasonable jury, provided with the
proper, current interpretation of our kidnapping law,
could not find that the restraint of the victims was
incidental to and necessary to complete the commission
of the robberies. The evidence presented by the state,
considered as a whole, would prevent a reasonable jury
from finding that no kidnappings occurred. Thus, the
lack of a Salamon instruction in the petitioner’s under-
lying criminal trial was harmless error, and I would
affirm the judgment of the habeas court.
1
At one point, the majority concludes that the jury was free to determine
‘‘that the confinement and movement of the [four individuals] after the
taking of the money was part of the course of events of the robberies,’’
which is not the standard we are required to apply under State v. Salamon,
287 Conn. 509, 949 A.2d 1092 (2008). I agree completely with Judge Lavine’s
eloquent dissent in Bell v. Commissioner of Correction, 184 Conn. App.
150, 174, A.3d (2018) (Lavine, J., dissenting), a case of two robberies
that involved stealing money from restaurant safes and the petitioner’s
ordering the victims into restaurant walk-in refrigerators, closing them
inside, and telling them not to leave. Judge Lavine’s criticism of the majority’s
analysis in that case aptly describes the problem I have with the majority’s
analysis here. The majority expands the definition of the word ‘‘necessary’’
to apply to conduct that was unnecessary to complete the robberies, but
simply made their completion easier.
2
The defendant in Salamon also was charged with risk of injury to a
child and unlawful restraint in the first degree. Charges of attempted sexual
assault in the third degree and three counts of assault in the third degree
were withdrawn before trial, but the court concluded that the defendant
was entitled to an instruction that he cannot be convicted of kidnapping if
the restraint imposed on the victim was merely incidental to an assault,
regardless of whether the state tried him for assault because the facts
reasonably supported an assault conviction. State v. Salamon, supra, 287
Conn. 550 n.35.
3
I note that in light of these facts, our Supreme Court concluded that a
reasonable jury could find either that the defendant’s restraint of the victim
was merely incidental to or necessary for his underlying assault, or that his
restraint of the victim constituted a kidnapping. It determined that the facts
of the case were a close call and ordered a new trial for the defendant on
the kidnapping charge. State v. Salamon, supra, 287 Conn. 549. If the actions
of the defendant in Salamon could reasonably have constituted a kidnapping,
I do not see how the defendant’s actions in the present cases could reason-
ably constitute anything but kidnappings.
4
I note that State v. Ward, supra, 306 Conn. 718, State v. Ayala, supra,
133 Conn. App. 514, and State v. Lewis, supra, 148 Conn. App. 511, are
direct criminal appeals analyzing whether there was sufficient evidence to
support a kidnapping conviction. Reliance on these cases can be problematic
in habeas appeals because the petitioner only has to demonstrate that the
respondent cannot prove that the absence of a Salamon instruction at his
underlying criminal trial was harmless beyond a reasonable doubt, a different
standard than proving lack of sufficient evidence to convict on direct appeal.
See Hinds v. Commissioner of Correction, 321 Conn. 56, 91, 136 A.3d 596
(2016). My reliance on these cases is limited to support the proposition that
a reasonable jury, having been instructed in accordance with Salamon,
properly may find that confinement of a short duration constitutes kid-
napping.
In State v. Ward, supra, 306 Conn. 741, our Supreme Court determined
that the trial court improperly granted the defendant’s motion for a judgment
of acquittal on his kidnapping conviction because the jury, provided with
a proper Salamon instruction, reasonably could have decided that moving
the victim down a hallway and restraining her for ten to fifteen minutes
was not incidental to the crime of sexual assault. In State v. Lewis, supra,
148 Conn. App. 517, the evidence was sufficient to support the defendant’s
kidnapping conviction under the rule of Salamon when, after committing
the crime of assault, the defendant dragged the victim across the ground
and tried to force her into a car. The victim resisted until plainclothes police
officers arrived, forcing the defendant to let go of the victim. Id., 514. Also,
in State v. Ayala, supra, 133 Conn. App. 522–23, this court found that after
the defendant committed the crime of burglary, his actions against the victim
amounted to restraint with sufficient independent criminal significance to
constitute the crime of kidnapping. The defendant in Ayala forced his way
into the victim’s apartment and once inside ‘‘stuck . . . a black handgun
into [the victim’s] stomach, threatened to kill her and inquired about the
whereabouts of his girlfriend. The victim informed the defendant that his
girlfriend was not at her residence, at which time the defendant pushed her
and demanded that she sit on the couch. The defendant then searched the
residence for his girlfriend, and when he was unable to find her, he left
. . . .’’ (Footnote omitted.) Id., 516–17.
5
Feltman, when describing her emotions as the petitioner led her down
the hallway, testified: ‘‘I was scared. There was something about [his] eyes.
I wanted to make sure that he knew that he was in control. I didn’t want
to . . . show him that I was fearful or anything like that. I didn’t want him
to think that I was going to freak out . . . .’’
6
In White v. Commissioner of Correction, supra, 170 Conn. App. 415,
this court stated: ‘‘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 complete once there [was] an unlawful entering or
remaining in a building with the intent to commit a crime [therein] . . .
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 [victim] to sit on the couch, instructing her to move
upstairs, touching 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. . . . [A]lthough liability for
a burglary premised on an unlawful entry attaches upon a defendant crossing
the threshold . . . authority exists that a burglary, once begun, continues
until all parties participating in the burglary have left the property.’’ (Citations
omitted; emphasis omitted; internal quotation marks omitted.) Id., 433–34.
I am troubled by the suggestion in White that there cannot be a finding of
harmless error so long as the underlying crime is still ongoing and continuing,
which contradicts the holding in Salamon that a defendant ‘‘may be con-
victed 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.’’ (Emphasis added.) State v.
Salamon, supra, 287 Conn. 547. A proper analysis does not entail pinpointing
a precise moment when the crime of robbery ended so as to confine our
consideration of whether a kidnapping occurred during conduct that
occurred after the robberies.
7
I disagree with the majority’s assessment that the movement and confine-
ment of the victims was ‘‘de minimis . . . .’’ The victims’ testimony reflects
that the movement and confinement at issue, occurring at gunpoint, gave
rise to very real feelings of fear. The victims testified that they waited until
they believed the defendant had fled before emerging from the bathrooms
for fear they would be shot if they again confronted the defendant.
8
Potential victims of robberies often are advised, if robbed, to hand over
their valuables without resistance so that their risk of harm will not be
increased. Imagine, then, the thoughts that rush through the mind of a
cooperative victim when the perpetrator does not flee after obtaining the
valuables sought, but instead, continues to threaten his victim with a weapon
and forces him into a more secluded location. What victim at that point would
not anxiously contemplate the possibility that he may possibly be murdered?