Farmer v. Commissioner of Correction

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
JOHN FARMER v. COMMISSIONER OF CORRECTION
(AC 36923)
Lavine, Sheldon and Mullins, Js.
Argued January 11—officially released May 10, 2016
(Appeal from Superior Court, judicial district of
Tolland, Bright, J.)
Mary Boehlert, assigned counsel, for the appellant
(petitioner).
Lisa Herskowitz, senior assistant state’s attorney,
with whom, on the brief, were Brian Preleski, state’s
attorney, Angela R. Macchiarulo, senior assistant
state’s attorney, and Michael Proto, assistant state’s
attorney, for the appellee (respondent).
Opinion
MULLINS, J. In this habeas corpus action, the peti-
tioner, John Farmer, challenged his kidnapping convic-
tion on the ground that the trial court had failed to
instruct the jury, in accordance with State v. Salamon,
287 Conn. 509, 949 A.2d 1092 (2008), that to find him
guilty of kidnapping, it had to find that he intended to
restrain the victim to a greater degree than was neces-
sary to commit assault. The habeas court concluded
that the trial court’s failure to give this instruction was
error, but that the error was harmless. As a result, the
habeas court denied the petition for a writ of habeas
corpus. We affirm the judgment of the habeas court.
The petitioner was charged with sexual assault in the
first degree in violation of General Statutes § 53a-70 (a)
(1), kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A), and assault in the second
degree in violation of General Statutes § 53a-60 (a) (1).
After a trial, the jury found the petitioner not guilty of
all of the crimes expressly pleaded in the information
but found him guilty of the lesser included offenses of
kidnapping in the second degree in violation of General
Statutes § 53a-94 and assault in the third degree in viola-
tion of General Statutes § 53a-61 (a) (1). The trial court
sentenced the petitioner on those charges to a total
effective term of twenty years imprisonment.
On direct appeal, this court affirmed the petitioner’s
conviction. State v. Farmer, 108 Conn. App. 82, 946
A.2d 1262, cert. denied, 288 Conn. 914, 954 A.2d 185
(2008). This court stated that the jury reasonably could
have found the following facts: ‘‘The [petitioner] and
the [victim] lived together in an apartment in Bristol.
Starting in mid-morning on October 19, 2004, they began
to drink heavily and continued to do so through the
day and evening. After watching a baseball game on
television at the home of the [petitioner’s] brother, the
[victim] began to drive both of them home. The [peti-
tioner] insisted that he should drive because she was
too inebriated to do so. He assaulted her physically to
force her to relinquish the driving of the car to him.
Instead of driving them home to their apartment, the
[petitioner] drove to a desolate dirt road in Burlington
where he resumed his physical assault of the [victim],
removed her underclothes and engaged in sexual con-
duct with her. Eventually, the [petitioner] drove the
[victim] to his mother’s house in Bristol. The next morn-
ing he allowed her to drive herself home. . . .
‘‘[The victim] called the police, whom she accompa-
nied to the dirt road where the [petitioner] had taken
her. There they found her ripped underwear on the
ground. A subsequent physical examination of the [vic-
tim] at Bristol Hospital confirmed that she had been
beaten.
‘‘The [petitioner] did not deny striking the [victim]
but said that he had done so in self-defense after the
[victim] had begun hitting him. He acknowledged that
he had engaged in sexual conduct with the [victim] but
alleged that their sexual engagement had been consen-
sual. The jury rejected his first defense but accepted
the second one.’’ Id., 84–85.
The petitioner thereafter filed an amended petition
for a writ of habeas corpus. In his amended petition,
he alleged, in count two,1 that his kidnapping conviction
could not stand because it was obtained under the pre-
Salamon interpretation of the kidnapping statute.2 After
a trial, the habeas court denied the petition. In its memo-
randum of decision, the habeas court concluded that
the trial court’s instructional impropriety was harmless.
The habeas court then granted the petitioner’s petition
for certification to appeal. This appeal followed. Addi-
tional facts will be set forth as necessary.
On appeal, the petitioner claims that the habeas court
improperly concluded that the trial court’s failure to
instruct the jury on the kidnapping charge in accor-
dance with the principles of Salamon was harmless.
We disagree.
We first set forth the applicable standards of review
and principles of law. ‘‘The habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous.’’ (Internal quotation marks omitted.)
Anderson v. Commissioner of Correction, 313 Conn.
360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Ander-
son v. Semple, U.S. , 135 S. Ct. 1453, 191 L. Ed.
2d 403 (2015). The applicability of Salamon and
whether the trial court’s failure to give a Salamon
instruction was harmless error are issues of law over
which our review is plenary. State v. Thompson, 118
Conn. App. 140, 155, 983 A.2d 20 (2009), cert. denied,
294 Conn. 932, 986 A.2d 1057 (2010).
‘‘Our Supreme Court in Salamon . . . 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. . . . The court explained further [that] there 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 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. . . .
‘‘Stated differently, [our kidnapping statutes do] not
impose liability for the crime of kidnapping where the
restraint used is merely incidental to the commission
of another offense. . . . [This] interpretation . . .
narrowed the previous scope of liability under [those]
statute[s]. [T]he appropriate remedy for the instruc-
tional impropriety identified in Salamon is to reverse
the [petitioner’s] kidnapping conviction and to remand
the case to the trial court for a new trial. . . .
‘‘Our Supreme Court in Luurtsema [v. Commissioner
of Correction, 299 Conn. 740, 764, 12 A.3d 817 (2011)]
held that the [decision] in Salamon appl[ies] retroac-
tively to collateral attacks on final judgments. . . . As
applied to currently incarcerated individuals, our
Supreme Court concluded that when an appellate court
provides a new interpretation of a substantive criminal
statute, an inmate convicted under a prior, more expan-
sive reading of the statute presumptively will be entitled
to the benefit of the new interpretation on collateral
attack. . . .
‘‘Despite the presumptive entitlement to the benefit
of the new interpretation on collateral attack . . . our
Supreme Court in [Luurtsema] declined the petitioner’s
invitation to adopt a per se rule in favor of full retroactiv-
ity . . . because a review of the diverse contexts in
which such challenges have arisen persuade[d] [the
court] that there are various situations in which to deny
retroactive relief may be neither arbitrary nor unjust.
. . . If the absence of a Salamon instruction resulted
in harmless error, then a remand for a new trial is
not necessary.
‘‘Our Supreme Court in Luurtsema discussed the dis-
position of cases where the failure to give a Salamon
instruction was harmless. [The court] expect[ed] that
courts will be able to dispose summarily of many cases
where it is sufficiently clear from the evidence pre-
sented at trial that the petitioner was guilty of kidnap-
ping, as properly defined, [and] that any error arising
from a failure to instruct the jury in accordance with
the rule in Salamon was harmless. . . .
‘‘Our Supreme Court in [State v. Hampton, 293 Conn.
435, 463–64, 988 A.2d 167 (2009)] set forth the test for
determining whether the failure to give the Salamon
instruction is harmless. [T]he test for determining
whether a constitutional [impropriety] is harmless . . .
is whether it appears beyond a reasonable doubt that
the [impropriety] complained of did not contribute to
the verdict obtained.’’ (Citations omitted; internal quo-
tation marks omitted.) Eric M. v. Commissioner of
Correction, 153 Conn. App. 837, 843–45, 108 A.3d 1128
(2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015).
In the present case, the following additional facts, as
found by the habeas court, illuminate our disposition
of the petitioner’s claim on appeal. ‘‘[T]he evidence at
the petitioner’s criminal trial show[ed] that there was
a significant amount of movement of the victim, and
that the abduction lasted for several hours. . . .3 Addi-
tionally, a review of the testimony at the petitioner’s
criminal trial reveals that while the petitioner was driv-
ing, the victim repeatedly requested to exit the vehicle
and attempted to exit the car three or four times, but
the petitioner grabbed her and prevented her from
escaping.
‘‘It is clear from the record that the petitioner
intended to prevent the victim’s liberation for a longer
period of time than that which was necessary to commit
the assault. The restraint necessary, if any, for the [peti-
tioner] to have assaulted the victim in this case was
minimal in comparison to the amount of time that he
held her against her will. The [petitioner’s] prolonged
restraint of the victim in her car while driving her to
and from the desolate area, and while forcing her to
remain in the car overnight at his mother’s house after
the assault occurred, could not reasonably be consid-
ered merely incidental to the assault charges.’’ (Foot-
note added.) Our review of the record persuades us,
as it did the habeas court, that the trial court’s failure
to give a Salamon instruction was harmless.
Here, the facts demonstrate that there is no reason-
able doubt that the petitioner’s restraint of the victim
was not merely incidental to the assault because he
restrained her for a longer period of time than was
necessary to assault her, and, therefore, the restraint
had independent criminal significance. Indeed, as this
court stated in State v. Nelson, 118 Conn. App. 831, 861,
986 A.2d 311, cert. denied, 295 Conn. 911, 989 A.2d 1074
(2010), ‘‘[t]he substantial length of the victim’s restraint
following the assaultive conduct by the defendant is
significant to our analysis. The defendant’s restraint
during such a substantial amount of time is overwhelm-
ing evidence of [his] intent to prevent the victim’s libera-
tion for a longer period of time than that necessary for
the commission of any other crime.’’
The evidence in the present case established that the
petitioner first assaulted the victim while she still was
driving the car. Following that assault, the petitioner
restrained the victim over a period of several hours
beginning when he prevented her from exiting the car
shortly after they left his brother’s house and ending
six to seven hours later when he permitted her to drive
home from his mother’s house.4 This lengthy confine-
ment established the petitioner’s intent to prevent the
victim’s liberation for a longer period of time than that
necessary for the commission of the assault.
The fact that other assaults occurred throughout the
restraint is of no moment given that the petitioner
restrained the victim for significant portions of time
when he was not assaulting her.5 See State v. Jordan,
129 Conn. App. 215, 223, 19 A.3d 241 (holding that defen-
dant restrained victims to greater degree than necessary
to commit assaults where, although assaultive behavior
spanned entire forty-five minute duration of victims’
confinement, evidence showed that even when not
assaulting victims defendant controlled their move-
ments, forcing them to clean blood off walls and pre-
venting them from leaving), cert. denied, 302 Conn.
910, 23 A.3d 1248 (2011). Here, even when he was not
assaulting her, the petitioner prevented the victim from
leaving the car for hours, despite her pleas to him to
let her go.
To be sure, in comparison to the span of time over
which the jury reasonably could have found that the
petitioner restrained the victim, his assaults on her were
brief. See Eric M. v. Commissioner of Correction,
supra, 153 Conn. App. 846–47 (five hour period of
restraint both before and after sexual assault not merely
incidental to commission of sexual assault or other
crimes of which petitioner was convicted). As the
habeas court aptly concluded, ‘‘the restraint necessary,
if any, for the [petitioner] to have assaulted the victim
in this case was minimal in comparison to the amount
of time that he held her against her will.’’ Indeed, in its
closing argument at the petitioner’s criminal trial, the
state argued that the restraint had begun prior to their
arrival in Burlington. The state further argued that the
petitioner had assaulted the victim in the car as they
travelled to and reached the dirt road in Burlington.
The state did not argue that any physical assaults
occurred after they left Burlington. In fact, the state
emphasized that the petitioner continued to restrain
the victim long after he had ceased assaulting her: ‘‘the
two of [them] remain[ed] in the car that night. And
finally the following morning [the petitioner] [let] her
go home.’’
The state’s theory—which was supported by the evi-
dence—that the restraint encompassed the entire
period the victim was in the car after the petitioner
started driving, including the overnight period, only
confirms that the lack of the Salamon instruction was
harmless. After the couple left Burlington, and after
the assaults had concluded, the petitioner continued to
prevent the victim’s liberation for another several hours
until morning. Thus, as the habeas court found, the
petitioner ‘‘forc[ed the victim] to remain in the car over-
night at his mother’s house after the assault occurred
. . . .’’ (Emphasis added.) This final, lengthy period
of restraint—after leaving Burlington and lasting until
morning—is overwhelming evidence of the petitioner’s
intent to restrain the victim’s liberty for a longer dura-
tion than necessary to commit another crime. See State
v. Nelson, supra, 118 Conn. App. 861.
The fact that the petitioner drove the victim from one
town to another further demonstrates that the restraint
here was not merely incidental to the assaults. See
State v. Strong, 122 Conn. App. 131, 143, 999 A.2d 765
(defendant’s prolonged restraint of victim in car for
more than one hour while forcing her to drive from one
town to another not merely incidental to threats made
before and during restraint), cert. denied, 298 Conn.
907, 3 A.3d 73 (2010).
Furthermore, the petitioner’s prolonged confinement
of the victim in this case reasonably could not be consid-
ered merely incidental to the assaults that already had
concluded by the time he drove from Burlington to
Bristol and forced her to remain in the car until morning.
Certainly, by the time the petitioner restrained the vic-
tim in the car at his mother’s house, a jury could con-
clude that the assaults had helped the petitioner to
restrain the victim. Conversely, no jury reasonably
could conclude that the restraint at this point was inci-
dental to any assault. Thus, this case—namely, one in
which the assaults were incidental to the kidnapping—
appears to be the converse of a Salamon situation. Cf.
State v. Winot, 294 Conn. 753, 764 n.7, 988 A.2d 188
(2010) (Salamon rule not applicable where, even if
defendant’s restraint of victim also could be found to
have violated other criminal statutes, ‘‘no jury reason-
ably could conclude that the kidnapping was incidental
to [the] commission of those crimes, rather than the
converse’’).
In sum, after reviewing all of the evidence presented,
we do not believe that a rational jury, even if properly
instructed, could find that the petitioner’s restraint of
the victim was inherent in, or incidental to, assault
or any other crime. As a result, it appears beyond a
reasonable doubt that the failure of the trial court to
give a Salamon instruction did not contribute to the
guilty verdict and, therefore, was harmless. Accord-
ingly, the habeas court properly denied the petition for
a writ of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Count one, in which the petitioner alleged the ineffective assistance of
trial counsel, is not at issue on this appeal.
2
The respondent, the Commissioner of Correction, filed a return in which
he asserted the affirmative defense of procedural default on the basis of
the petitioner’s failure to raise his claim at trial or on direct appeal. In his
reply to the return, the petitioner asserted that his claim was not procedurally
defaulted because he had good cause for failing to raise the claim previously
and had been prejudiced by the trial court’s failure to instruct the jury
properly on the kidnapping charge. The habeas court concluded that the
claim had not been procedurally defaulted. The habeas court’s ruling on
procedural default is not challenged in this appeal.
3
The petitioner held the victim against her will for somewhere between
six and seven hours. Specifically, the evidence showed that the restraint
commenced somewhere between midnight and 1 a.m. The victim testified
that it was 11:30 p.m. and the petitioner testified that it was approximately
12:45 or 1 a.m. when he took over driving the car. When he finally permitted
her to leave his mother’s house several hours after he had co-opted the
victim’s car, the victim testified that it was starting to grow light outside,
and the petitioner testified that it was approximately 7:30 a.m.
4
As it relates to the kidnapping, the state argued the following in its
closing argument at the petitioner’s criminal trial. When the petitioner and
victim left his brother’s house, they were in agreement that they were going
home, and the victim was driving. At some point during the drive, there
was violence between them, the petitioner took over driving the car, and
he decided that they were not going to go home. Instead, he drove them to
the deserted dirt road in Burlington. As they travelled to Burlington, the
victim attempted to get out of the car, but the petitioner prevented her from
doing so. After they left Burlington, the petitioner still did not permit her
to leave; rather, he made her remain with him in the car until he finally let
her go in the morning.
5
The victim testified that the petitioner hit her several times while he
drove the car.