Britton v. Commissioner of Correction

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears 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 reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
ABIN BRITTON v. COMMISSIONER OF CORRECTION
(AC 39407)
Lavine, Keller and Pellegrino, Js.
Syllabus
The petitioner, who had been convicted of the crimes of manslaughter in
the first degree, kidnapping in the first degree and robbery in the first
degree, filed a second petition for a writ of habeas corpus. The petitioner
claimed, inter alia, that his trial counsel and his first habeas counsel,
D, had rendered ineffective assistance, and that he was denied due
process because the trial court did not instruct the jury, in accordance
with State v. Salamon (287 Conn. 509), that he could not be found
guilty of the two kidnapping charges against him if his confinement or
movement of the victim was merely incidental to the commission of
the other crimes charged. The petitioner and two other men, P and S,
had beaten the victim to death after the victim sought to purchase crack
cocaine from the petitioner. After a struggle in the victim’s car, the
petitioner, P and S pulled the victim from the car and beat him until he
lay motionless on the ground, and then the petitioner put the victim in
the backseat of the car. The petitioner, P and S then drove the victim
to a park, removed him from the car and beat him again before they
dragged his body into the park and covered it with dirt and plastic bags.
The petitioner, P and S also took an imitation watch and cash from the
victim during the incident. C, who was a former coworker of the peti-
tioner, gave a statement to the police in which he told them, inter alia,
that the petitioner had told him that the victim was still alive when the
petitioner put the victim in the car. The trial court did not instruct the
jury in accordance with Salamon, which had not been decided at the
time of the petitioner’s criminal trial and direct appeal. The first habeas
court denied the petitioner’s first habeas petition, in which he alleged
that his trial counsel had rendered ineffective assistance. The second
habeas court denied the second habeas petition, concluding, inter alia,
that the petitioner’s claim of ineffective assistance of trial counsel was
successive and, thus, barred by the doctrine of res judicata. The habeas
court further concluded that a jury instruction pursuant to Salamon
was not warranted and that even if the petitioner had been entitled to
a Salamon instruction, the absence of such an instruction was harmless
error. The habeas court thereafter denied the petition for certification
to appeal, and the petitioner appealed to this court. Held:
1. The habeas court abused its discretion in denying the petition for certifica-
tion to appeal from the judgment denying the habeas petition; given
the underlying facts, the criminal charges, and the relative newness of
Salamon and its retroactive application, the petitioner’s Salamon claim
was adequate to deserve encouragement to proceed further, as the issues
it raised had not been entirely settled by our Supreme Court.
2. The habeas court properly determined that the petitioner was not denied
his statutory and constitutional rights to due process and to the effective
assistance of his first habeas counsel:
a. The petitioner could not prevail on his claim that he was denied his
constitutional right to due process when he was convicted of kidnapping
without the jury having been given a Salamon instruction, as the second
habeas court properly determined that the trial court’s failure to give
a Salamon instruction was harmless beyond a reasonable doubt: the
evidence demonstrated that the petitioner engaged in several offenses
during which he restrained and moved the victim in a manner that was
not merely incidental to or necessary for the commission of assault or
robbery, as no reasonable juror could have concluded that the restraint
or movement imposed on the victim after he was beaten and lying
motionless on the ground of the parking lot was necessary for the
commission of the robbery, and driving the victim to the park was not
necessary to inflict physical injury on him; moreover, the offenses were
separated by distinct periods of time and by more movement or restraint
of movement, and the omitted element was uncontested and supported
by overwhelming evidence such that the jury’s verdict would have been
the same absent the trial court’s error.
b. The habeas court properly determined that the petitioner’s claim of
ineffective assistance of trial counsel in his second habeas petition was
successive and, therefore, barred by the doctrine of res judicata; because
the claim alleged no new facts that were not known at the time of the
first habeas trial, it was not an abuse of discretion for the habeas court
to deny the petition for certification to appeal with respect to that claim,
which did not concern an issue that was debatable among jurists of
reason that a court could resolve in a different manner, nor did it deserve
encouragement to proceed further.
c. The habeas court properly determined that the petitioner’s statutory
and constitutional rights to the effective assistance of his first habeas
counsel, D, were not violated: the petitioner failed to demonstrate that
D was ineffective with respect to his investigation of trial counsel’s
assistance regarding the suppression of the petitioner’s statement to
the police, or that D was ineffective by failing to investigate and subpoena
witnesses to demonstrate that the first responders to the crime scene
mishandled the victim’s body, and the petitioner’s claim that D was
ineffective by failing to introduce exculpatory evidence to show the
contradiction between C’s statement to the police and C’s trial testimony
was unavailing, as the petitioner presented no evidence that the habeas
court considered exculpatory, the jury was apprised of the contradiction
between C’s statement to the police and his trial testimony, and our
Supreme Court previously rejected a similar claim made by P in his
direct appeal from his conviction in which he challenged the admission
of C’s statement to the police; moreover, D was not ineffective for failing
to raise a Salamon claim in the first habeas petition, as the movements
and restraints of the victim had independent criminal significance and,
thus, the underlying facts would not have warranted a Salamon
instruction.
Argued March 8—officially released October 16, 2018
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. Affirmed.
Michael W. Brown, assigned counsel, for the appel-
lant (petitioner).
Michael L. Regan, state’s attorney, for the appellee
(respondent).
Opinion
LAVINE, J. The petitioner, Abin Britton, appeals fol-
lowing the second habeas court’s denial of his petition
for certification to appeal from that court’s denial of
his second petition for a writ of habeas corpus. On
appeal, the petitioner claims that the second habeas
court, Fuger, J., (1) abused its discretion by denying his
petition for certification to appeal, and (2) improperly
concluded that he was not denied the constitutional
right to due process because the jury was not instructed
pursuant to State v. Salamon, 287 Conn. 509, 949 A.2d
1092 (2008), to the effective assistance of trial counsel
and to the effective assistance of first habeas counsel.
Although we agree that the second habeas court abused
its discretion by denying the petitioner certification to
appeal, we disagree that the court improperly denied
his second petition for a writ of habeas corpus and,
therefore, affirm the judgment of the second habeas
court.
The present appeal has its factual roots in the brutal
murder of the victim, James Connor, in the early morn-
ing hours of August 23, 1998.1 See State v. Britton, 283
Conn. 598, 600, 929 A.2d 312 (2007). Pursuant to our
plenary review of the petitioner’s claims, we have
reviewed the entire record, which includes the tran-
script of the petitioner’s criminal trial that was held in
November and December, 2004. On the basis of the
evidence in the record, we conclude that the jury rea-
sonably could have found that on the night of August
22, 1998, the victim visited his parents on their boat in
the Essex Marina and left at approximately 11:30 p.m.
to go the Black Seal, an Essex restaurant and bar. Some-
time after midnight, he drove his father’s Saab to
Lucky’s Cafe´ (Lucky’s) in New London in search of
cocaine. The petitioner, Gregory Pierre, Jeffrey Smith
(perpetrators) and their friend, Junito Jarvis, were pre-
sent at Lucky’s when the victim arrived. The victim
approached the petitioner and asked him if he had any
crack cocaine. The petitioner did not have any crack
‘‘on [him],’’ but he knew where to get some. The victim
drove himself and Pierre to a New London apartment
complex where Pierre lived and parked in the parking
lot. Jarvis drove the petitioner and Smith to a spot on
Michael Road that was adjacent to the parking lot. Jarvis
was able to see the Saab and observe the perpetrators
from where he was parked.
The victim remained in the Saab, but Pierre went to
his apartment. When he returned, Pierre walked to the
driver’s side of the Saab, where the petitioner and Smith
joined him some minutes later. Thereafter, all three of
the perpetrators got into the Saab where a struggle
ensued. The perpetrators got out of the Saab, and pulled
the struggling victim out of the vehicle and beat him
until he lay motionless on the ground. Jarvis remained
in his car, witnessed the beating and saw the petitioner
pick up the victim and put him on the backseat of the
Saab. The petitioner told Norman L. Carr that the victim
was still alive when he put him in the Saab. The perpe-
trators got back into the Saab and drove to a parking
lot in Bates Woods, a New London park.2 At Bates
Woods, the perpetrators removed the victim from the
Saab and beat him again. The petitioner took a pipe
from the Saab, rammed it into the victim’s mouth and
twisted it.3 The perpetrators dragged the victim’s body
into Bates Woods and covered it with dirt and plastic
bags. During the incident, the perpetrators took an imi-
tation Rolex watch and $90 from the victim.
At approximately 6:30 a.m. on August 23, 1998, the
Waterford police discovered the Saab partially sub-
merged in a duck pond behind the police station. They
used the license plate number to identify the Saab’s
owner, the victim’s father, Donald Connor. Members of
the New London Police Department impounded the
Saab, and, along with the state police, conducted an
investigation. During their investigation, the police dis-
covered two palm prints on the door posts of the Saab.
The windshield of the Saab was cracked and the rear-
view mirror was missing. In addition, investigators
found red and brown stains inside the Saab, including
on the rear seat, the door panels, and the visor over
the driver’s seat, which led the police to believe that
someone had been injured.
In January, 1999, a badly decomposed human body
was found in Bates Woods. Harold Wayne Carver II, the
state’s chief medical examiner, identified the remains
as those of the victim and classified the manner of his
death as a homicide.4 The police identified the peti-
tioner, Pierre and Smith as suspects. At the request of
the police, the petitioner accompanied the New London
police to the station, provided them with his palm prints
and gave them a statement regarding his involvement
in the victim’s death. He subsequently was arrested, as
were Smith and Pierre, and charged in connection with
the victim’s murder.
On July 10, 2001, the state filed a substitute informa-
tion, charging the petitioner with six crimes: capital
felony in violation of General Statutes § 53a-54b (5),
murder in violation of General Statutes § 53a-54a (a),
felony murder in violation of General Statutes § 53a-54c,
kidnapping in the first degree in violation of General
Statutes § 53a-92 (a) (2) (A), kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(B), and robbery in the first degree in violation of Gen-
eral Statutes § 53a-134 (a) (1).5 Following the presenta-
tion of evidence,6 a jury of twelve found the petitioner
guilty of one count of felony murder, one count of
manslaughter in the first degree in violation of General
Statutes § 53a-55 (a) (1), two counts of kidnapping in
the first degree, and one count of robbery in the first
degree. See Britton v. Commissioner of Correction,
141 Conn. App. 641, 645, 61 A.3d 1188, cert. denied, 308
Conn. 946, 67 A.3d 290 (2013).
The trial court, Schimelman, J., merged the petition-
er’s manslaughter conviction with the felony murder
conviction and rendered judgment in accordance with
the jury’s verdict. Id. The court sentenced the petitioner
to sixty years in prison on the manslaughter conviction,
twenty-five years on each of the kidnapping counts and
twenty years on the robbery conviction. The kidnapping
and robbery sentences were to be served concurrently
and consecutive to the manslaughter conviction,
resulting in an effective term of eighty-five years in
prison. The petitioner’s conviction was affirmed on
direct appeal to our Supreme Court.7 State v. Britton,
supra, 283 Conn. 598.
After our Supreme Court affirmed the petitioner’s
conviction, the self-represented petitioner filed a peti-
tion for a writ of habeas corpus in November, 2007
(first habeas petition). Appointed habeas counsel
amended the first habeas petition, alleging that the peti-
tioner was denied the effective assistance of trial coun-
sel.8 See Britton v. Commissioner of Correction, supra,
141 Conn. App. 646. The first habeas court, Schuman,
J., denied the first habeas petition and the petition for
certification to appeal. Id. The petitioner appealed to
this court. This court dismissed the appeal; id., 669; and
our Supreme Court denied certification to appeal. See
Britton v. Commissioner of Correction, 308 Conn. 946,
67 A.3d 290 (2013).
The self-represented petitioner filed the present peti-
tion for a writ of habeas corpus in October, 2011. On
March 24, 2016, appointed counsel filed the second
revised amended petition (second habeas petition)
alleging that the petitioner’s constitutional rights were
violated because he was denied (1) the effective assis-
tance of trial counsel,9 (2) the effective assistance of
first habeas counsel10 and (3) a fair trial because the trial
court’s jury instruction with respect to the kidnapping
charges did not comply with Luurtsema v. Commis-
sioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011),
State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156
(2008),11 and State v. Salamon, supra, 287 Conn. 509.
With respect to his claim pursuant to Salamon, the
petitioner alleged that if the jury had been charged
pursuant to Salamon, it would not have found him guilty
of either of the counts of kidnapping in the first degree.
The second habeas court denied the second habeas
petition in a memorandum of decision issued on June
23, 2016. The court found that (1) the petitioner’s claim
of ineffective assistance of trial counsel was successive
and, therefore, was barred by the doctrine of res judi-
cata; (2) that the petitioner had failed to demonstrate
that his first habeas counsel rendered ineffective assis-
tance by failing to prove that trial counsel’s perfor-
mance was ineffective; and (3) a reasonable fact finder
clearly could have determined that the petitioner’s
restraint or movement of the victim was not merely
incidental to the other offenses12 and, therefore, a Sala-
mon instruction was not warranted. The second habeas
court denied the petitioner certification to appeal.
The petitioner appealed to this court, claiming that
the second habeas court abused its discretion by deny-
ing certification to appeal. He also claimed that his
constitutional right to due process was violated because
he was convicted of kidnapping without the jury having
been instructed ‘‘to determine whether the victim was
restrained to an extent exceeding that which was neces-
sary to accomplish or complete the other crimes.’’ See
State v. Salamon, supra, 287 Conn. 542. In addition, the
petitioner claims that his constitutional right to the
effective assistance of trial counsel was violated, and
that his statutory and constitutional rights to the effec-
tive assistance of habeas counsel were violated. We
agree that the second habeas court abused its discretion
by denying the petition for certification to appeal, but
we disagree that the court erred by denying the second
petition for a writ of habeas corpus.
I
We first consider the petitioner’s claim that the sec-
ond habeas court abused its discretion by denying his
petition for certification to appeal. Although we agree
that the court should have granted the petition for certi-
fication to appeal, the petitioner cannot prevail on the
merits of his claims.
‘‘Faced with the habeas court’s denial of a petition for
certification to appeal, a petitioner can obtain appellate
review of the [denial] of his petition for habeas corpus
only by satisfying the two-pronged test enunciated 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,
he must demonstrate that the denial of his petition for
certification constituted an abuse of discretion. . . .
Second, if the petitioner can show an abuse of discre-
tion, he must prove that the decision of the habeas
court should be reversed on the merits. . . .
‘‘To prove an abuse of discretion, the petitioner must
demonstrate that the [resolution of the underlying claim
involves issues that] are debatable among jurists of
reason; that a court could resolve the issues [in a differ-
ent manner]; or that the questions are adequate to
deserve encouragement to proceed further.’’ (Internal
quotation marks omitted.) Wright v. Commissioner of
Correction, 111 Conn. App. 179, 181–82, 958 A.2d 225
(2008), cert. denied, 290 Conn. 904, 962 A.2d 796 (2009).
‘‘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.’’ (Internal
quotation marks omitted.) Duncan v. Commissioner
of Correction, 171 Conn. App. 635, 645, 157 A.3d 1169,
cert. denied, 325 Conn. 923, 159 A.3d 1172 (2017).
In determining whether the second habeas court
abused its discretion by denying the petitioner certifica-
tion to appeal, we have reviewed the records of the
petitioner’s criminal and second habeas trials and the
second habeas court’s memorandum of decision. Given
the underlying facts, the criminal charges against the
petitioner, and the relative newness of Salamon and
its retroactive application, we conclude that the peti-
tioner’s Salamon claim is adequate to deserve encour-
agement to proceed further, as the issues it raises are
not entirely settled by our Supreme Court.13 On the
basis of our review of the petitioner’s Salamon claim,
however, we conclude that he cannot prevail on its
merits.
II
The petitioner claims that the second habeas court
improperly determined that he was not denied certain
constitutional and statutory rights. We disagree.
We are mindful that ‘‘[t]he habeas court is afforded
broad discretion in making its factual findings, and
those findings will not be disturbed unless they are
clearly erroneous. . . . Historical facts constitute a
recital of external events and the credibility of their
narrators. . . . Accordingly, [t]he habeas judge, as the
trier of facts, is the sole arbiter of the credibility of
witnesses and the weight to be given to their testimony.
. . . The application of the habeas court’s factual find-
ings to the pertinent legal standard, however, presents
a mixed question of law and fact, which is subject to
plenary review.’’ (Internal quotation marks omitted.)
Thomas v. Commissioner of Correction, 141 Conn.
App. 465, 470, 62 A.3d 534, cert. denied, 308 Conn. 939,
66 A.3d 881 (2013).
A
The petitioner claims that the habeas court improp-
erly concluded that his constitutional right to due pro-
cess was not violated when he was convicted of
kidnapping without the jury being instructed to deter-
mine whether the victim was restrained to an extent
exceeding that which was necessary to accomplish or
complete the other crimes charged. We do not agree,
given the particular facts of the present case.
We first set forth the law applicable to the petitioner’s
Salamon claim. ‘‘[I]t is well established that a defect
in a jury charge which raises a constitutional question
is reversible error if it is reasonably possible that, con-
sidering the charge as a whole, the jury was misled.
. . . [T]he test for determining whether a constitutional
error is harmless . . . is whether it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained. . . . A jury instruc-
tion that improperly omits an essential element from the
charge constitutes harmless error [only] if a reviewing
court concludes beyond a reasonable doubt that the
omitted element was uncontested and supported by
overwhelming evidence, such that a jury verdict would
have been the same absent the error . . . . The failure
to charge in accordance with Salamon is viewed as an
omission of an essential element . . . and thus gives
rise to constitutional error.’’ (Citations omitted; internal
quotation marks omitted.) Hinds v. Commissioner of
Correction, 321 Conn. 56, 77–78, 136 A.3d 596 (2016).
Our kidnapping law has changed substantially since
the petitioner was convicted of kidnapping in violation
of § 53a-92 (a) (2) (A) and (B) in 2005.14 At that time,
our Supreme Court had established that ‘‘all that is
required under the [kidnapping] statute is that the
defendant have abducted the victim and restrained [the
victim] with the requisite intent. . . . Under the afore-
mentioned definitions, the abduction requirement is sat-
isfied 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.’’ (Internal quotation marks omitted.) Pereira
v. Commissioner of Correction, 176 Conn. App. 762,
768, 171 A.3d 105, cert. denied, 327 Conn. 984, 175 A.3d
43 (2017).
In 2008, however, our Supreme Court reinterpreted
our kidnapping statutes in State v. Salamon, supra,
287 Conn. 542. ‘‘Our legislature, 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 accom-
panying severe penalties those confinements or move-
ments of a victim that are merely incidental to and
necessary for the commission of another crime against
that victim. Stated otherwise, to commit a kidnapping
in conjunction with another crime, a defendant must
intend to prevent the victim’s liberation for a longer
period of time or to a greater degree than that which
is necessary to commit the other crime.’’ Id.
‘‘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.’’ (Emphasis added; internal
quotation marks omitted.) Robles v. Commissioner of
Correction, 169 Conn. App. 751, 755, 153 A.3d 29 (2016),
cert. denied, 325 Conn. 901, 157 A.3d 1146 (2017).
‘‘[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 indepen-
dent criminal significance, that is, the victim was
restrained to an extent exceeding that which was neces-
sary to accomplish or complete the other crime.
Whether the movement or confinement of the victim
is merely incidental to and necessary for another crime
will depend on the particular facts and circumstances of
each case. Consequently, when the evidence reasonably
supports a finding that the restraint was not merely
incidental to the commission of some other, separate
crime, the ultimate factual determination must be made
by the jury. For purposes of making that determination,
the jury should be instructed to consider the various
relevant factors, including the nature and duration of
the victim’s movement or confinement by the [perpetra-
tor], whether that movement or confinement occurred
during the commission of the separate offense, whether
the restraint was inherent in the nature of the separate
offense, whether the restraint prevented the victim from
summoning assistance, whether the restraint reduced
the [perpetrator’s] risk of detection and whether the
restraint created a significant danger or increased the
victim’s risk of harm independent of that posed by the
separate offense.’’ (Emphasis in original; footnote omit-
ted.) State v. Salamon, supra, 287 Conn. 547–48; see
also White v. Commissioner of Correction, 170 Conn.
App. 415, 428–29, 154 A.3d 1054 (2017) (‘‘if the evidence
regarding the perpetrator’s intent—that is, whether he
or she intended to prevent the victim’s liberation for a
longer period of time or to a greater degree than that
which is necessary to commit the other crime—is sus-
ceptible to more than one interpretation, that question
is one for the jury’’ [internal quotation marks omitted]).
In its memorandum of decision,15 the second habeas
court noted that the state had charged the petitioner
in a substitute information with two separate counts
of kidnapping: kidnapping in the first degree in violation
of § 53a-92 (a) (2) (A) for abducting and restraining the
victim with the intent to inflict physical injury upon
him, and kidnapping in the first degree in violation of
§ 53a-92 (a) (2) (B) for abducting and restraining the
victim with attempt to accomplish and advance the
commission of a robbery.
The court then set forth the facts as the jury reason-
ably may have found them, as stated in our Supreme
Court’s decision affirming the petitioner’s conviction.
To wit: ‘‘[t]he victim bought two small bags of crack
cocaine in exchange for $20, and he and the [petitioner],
with Pierre and Smith following in a separate vehicle,
drove to Pierre’s apartment complex in New London
so that the victim could use the drugs he had just pur-
chased. Once they arrived at the apartment complex,
Pierre, Smith and the [petitioner] pulled the victim out
of the Saab and beat him. When this attack ceased, the
victim was badly injured but still alive. The three men
then put the victim into the backseat of the Saab and
brought him to a nearby parking lot abutting Bates
Woods, a park in New London. They pulled the victim
out of the car once more, and this time beat him to
death. Pierre, Smith and the [petitioner] then dragged
the victim’s body into Bates Woods, where they covered
the body with dirt and plastic bags. The [petitioner]
disposed of the victim’s Saab by pushing it into a small
pond behind the Waterford police department. State v.
Britton, supra, 283 Conn. 601–602.’’ (Internal quotation
marks omitted.)
In its memorandum of decision, the second habeas
court quoted the prosecutor’s argument to the jury,
which contended that there were two kidnappings. The
prosecutor stated, in relevant part: ‘‘Now, the kidnap-
ping in the first degree; there’s actually two counts, the
fourth and fifth counts [of the substitute information].
One kidnapping is distinguished from the other because
one is that [the victim] was restrained with the intent,
that is, the intent from not letting him [get free], and
they restrained him with the intent to inflict physical
injury upon him. The state asserts that this actually
happened on several occasions, this kidnapping. The
[perpetrators] restrained [the victim] when they got into
his Saab, when they got into his car at Michael Road,
he was restrained there. In fact, the evidence is as
[Jarvis] told us, that he was pulled out of the car and,
as he was being pulled [out of the car, he was kicking
as if he was trying to stay in] the car. The state would
assert that the evidence says that that’s one particular
kidnapping. Then [the victim] is put back into his own
car and driven to Bates Woods. . . .
‘‘Now, the other kidnapping . . . is that a kidnap-
ping, which is, as I indicated, a restraining with . . .
the intent of a felony, and the felony, the state would
assert in this case, was robbery, and the evidence of
the robbery in this case actually comes from several
sources, two of which come from the [petitioner].’’
(Internal quotation marks omitted.)
The second habeas court noted that the trial court
charged the jury extensively with respect to kidnapping,
both as a predicate for the capital felony16 and felony
murder charges,17 as well as for the separate kidnapping
counts,18 and robbery in the first degree,19 but that the
instructions did not comport with Salamon. The second
habeas court stated that it was not disputed that the
jury found that the victim was moved or restrained at
least two separate times, as alleged in the kidnapping
counts: once to facilitate injury to the victim and once
to rob him. According to the second habeas court, these
movements or restrictions of the victim had a clearly
defined and distinct significance from each other and
from the other charged offenses. The court also con-
cluded that ‘‘a reasonable fact finder could clearly deter-
mine that the restraint and/or movement of the victim
[were] not merely incidental to the other offenses. That
is, the movements and/or confinements had indepen-
dent criminal significance.’’20 The court, therefore,
denied the petitioner’s Salamon claim because the
underlying facts would not have warranted a Salamon
instruction. Moreover, the court stated, even if the peti-
tioner were entitled to a Salamon instruction, the
absence of such an instruction was harmless error.21
We agree with the second habeas court that the failure
to give a Salamon instruction was harmless beyond a
reasonable doubt.
In addition to the two kidnapping charges, the peti-
tioner was charged with capital felony, murder, felony
murder and robbery. In such circumstances, State v.
Fields, 302 Conn. 236, 247, 24 A.3d 1243 (2011), instructs
that ordinarily a Salamon instruction should have been
given. At his criminal trial, the petitioner all but con-
ceded that the perpetrators robbed and assaulted the
victim. See footnote 6 of this opinion. Given his conces-
sion, his defense focused on the capital felony and mur-
der charges.22
If a reviewing court determines that a Salamon
instruction on incidental restraint should have been
given, it must then determine whether the failure to
give the instruction was harmful. In Luurtsema v. Com-
missioner of Correction, supra, 299 Conn. 740, our
Supreme Court stated that ‘‘the proper standard to
[determine whether a petitioner’s kidnapping convic-
tion requires reversal due to the omission of a Salamon
instruction] would be the harmless error standard
applied on direct appeal. . . . On direct appeal, [i]t is
well established that a defect in a jury charge which
raises a constitutional question is reversible error if it
is reasonably possible that, considering the charge as
a whole, the jury was misled. . . . [T]he test for
determining whether a constitutional error is harmless
. . . is whether it appears beyond a reasonable doubt
that the error complained of did not contribute to the
verdict obtained. . . . A jury instruction that improp-
erly omits an essential element from the charge consti-
tutes harmless error [only] if a reviewing court
concludes beyond a reasonable doubt that the omitted
element was uncontested and supported by overwhelm-
ing evidence, such that the jury verdict would have
been the same absent the error . . . . The failure to
charge in accordance with Salamon is viewed as an
omission of an essential element . . . and thus gives
rise to constitutional error.’’ (Citations omitted; internal
quotation marks omitted.) Hinds v. Commissioner of
Correction, supra, 321 Conn. 77–78.
On appeal, the petitioner argues that the two kidnap-
ping charges were based on (1) the alleged restraint
of the victim during the robbery, and (2) the alleged
abduction of the victim from the parking lot to Bates
Woods. The petitioner’s argument assumes that the rob-
bery occurred in the Saab or parking lot where the
victim was first beaten. He analyzed the Salamon risk
factors as follows: With respect to the events that took
place in the parking lot, the petitioner contends that
the state did not allege that the perpetrators confined
the victim at any time during which they were not
attacking him. He argues that the perpetrators
restrained the victim only when they were attacking
him. As a matter of law and as recited in the court’s
instruction on robbery,23 the use or threatened use of
physical force is inherent in the crime of robbery. The
evidence, however, demonstrates that the petitioner
moved the victim when he was not being attacked.
Jarvis testified that the perpetrators dragged the victim
from the Saab and beat him motionless. The state con-
tended that the robbery occurred at that point. The
petitioner picked up the motionless victim, put him on
the backseat of the Saab, transported him to Bates
Woods, beat him again and murdered him. Putting the
victim back into the Saab, transporting him to Bates
Woods, and the ensuing violence was not necessary to
the crime of robbery.24 Simply put, abducting and mov-
ing the motionless body of the victim exceeded what
was necessary to commit the crime of robbery.
Moreover, it does not matter at exactly which point
in time the perpetrators took the victim’s money and
watch. The taking could have occurred at any number
of points: during the struggle inside the Saab; when the
victim was lying motionless on the ground of the park-
ing lot; while he was lying on the backseat of the Saab;
after he was driven to Bates Woods; or when he was
again pulled from the Saab at Bates Woods. Each of
those potential points of taking are separated in time
and by distinct movements. If the taking occurred dur-
ing the struggle inside the Saab, at a minimum, pulling
the victim from the Saab, beating him, putting him back
in the Saab after he had been beaten motionless was
not incidental to or necessary to the taking. If the taking
occurred when the victim was placed on the backseat
of the Saab after he had been beaten motionless, the
initial struggle in the Saab preceded the taking and was
not incidental or necessary to it, nor was the asportation
to Bates Woods. If the taking occurred after the victim
was dead, restraining the victim in and pulling him from
the Saab on two occasions was not incidental to or
necessary to the commission of the taking. Under any
scenario, no reasonable juror could conclude that the
restraint or movement imposed on the victim after he
was beaten and lying motionless on the ground of the
parking lot was necessary for the commission of
robbery.
With respect to the kidnapping charge alleging that
the petitioner restrained the victim with the intent to
inflict physical injury upon him, the evidence demon-
strated that the perpetrators restrained the victim in
the Saab and assaulted him, causing him physical injury.
The victim’s blood was detected in the blood splatters
on the visor above the driver’s seat. After restraining
the victim and causing him physical injuries, the perpe-
trators exceeded what was necessary to commit assault
with the intent to cause physical injury by removing
the struggling victim from the Saab and beating him
motionless. As to the kidnapping charge that the peti-
tioner abducted and restrained the victim in order to
inflict physical injury, the evidence demonstrates that
the victim was placed in the backseat of the Saab, after
he had been beaten and rendered motionless, trans-
ported to Bates Woods, beaten and murdered. Driving
the victim to Bates Woods was not necessary to inflict
physical injury on the victim. That was accomplished
initially during the struggle in the Saab and again when
he was beaten while he was lying motionless on the
parking lot.
In White v. Commissioner of Correction, supra, 170
Conn. App. 430–31, this court noted that in Hinds v.
Commissioner of Correction, supra, 321 Conn. 92–93,
our Supreme Court categorized Salamon incidental
restraint cases depending on the degree of confinement
and movement. ‘‘Although no minimum period of
restraint or degree of movement is necessary for the
crime of kidnapping, an important facet of cases where
the trial court has failed to give a Salamon instruction
and that impropriety on appellate review has been
deemed harmless error is that longer periods of
restraint or greater degrees of movement demarcate
separate offenses. See State v. Hampton, [293 Conn.
435, 463–64, 988 A.2d 167 (2009)] (defendant confined
victim in car and drove her around for approximately
three hours before committing sexual assault and
attempted murder); State v. Jordan, [129 Conn. App.
215, 222–23, 19 A.3d 241 (2011)] (evidence showed the
defendant restrained the victims to a greater degree
than necessary to commit the assaults even though
assaultive behavior spanned entire forty-five minute
duration of victims’ confinement) [cert. denied, 302
Conn. 910, 23 A.3d 1248 (2011)]; State v. Strong, [122
Conn. App. 131, 143, 999 A.2d 765] (defendant’s pro-
longed restraint of victim while driving for more than
one hour from one town to another not merely inciden-
tal to threats made prior to the restraint) [cert. denied,
298 Conn. 907, 3 A.3d 73 (2010)]; and State v. Nelson,
[118 Conn. App. 831, 860–62, 986 A.2d 311] (harmless
error when defendant completed assault and then for
several hours drove victim to several locations) [cert.
denied, 295 Conn. 911, 989 A.2d 1074 (2010)]. Thus, as
these cases demonstrate, multiple offenses are more
readily distinguishable—and, consequently, more likely
to render the absence of a Salamon instruction harm-
less—when the offenses are separated by greater time
spans, or by more movement or restriction of move-
ment.’’ (Internal quotation marks omitted.) White v.
Commissioner of Correction, supra, 430–31; see also
Pereira v. Commissioner of Correction, supra, 176
Conn. App. 773–74 (habeas court properly concluded
restraint and confinement of victim occurred separately
from and was completed prior to murder).
The second habeas court cited the Hampton and
Nelson cases in support of its conclusion that the failure
to give a Salamon instruction in the present case was
harmless error, if any. We agree with the second habeas
court’s conclusion that the failure to give the Salamon
charge in the present case was harmless. The evidence
demonstrates that the petitioner, along with the other
perpetrators, engaged in several offenses during which
he restrained and moved the victim in a manner not
merely incidental to or necessary for the commission
of assault or robbery, and that the offenses were sepa-
rated by distinct periods of time and by more movement
or restraint of movement. Accordingly, with respect to
both charges of kidnapping, we conclude, beyond a
reasonable doubt, that the ‘‘omitted element was uncon-
tested and supported by overwhelming evidence such
that the jury verdict would have been the same absent
the error . . . .’’ (Internal quotation marks omitted.)
Hinds v. Commissioner of Correction, supra, 321 Conn.
77–78. We thus conclude that the ‘‘evidence reasonably
supports a finding that the restraint was not merely
incidental to the commission of some other, separate
crime . . . .’’ (Emphasis in original.) State v. Salamon,
supra, 287 Conn. 547–48.25
For the foregoing reasons, although the second
habeas court should have granted the petitioner certifi-
cation to appeal, the court did not improperly deny his
petition for a writ of habeas corpus with regard to his
allegation that he was denied due process because the
jury was not instructed pursuant to Salamon.
B
The petitioner claims that the habeas court improp-
erly concluded that his claim of ineffective assistance
of trial counsel was barred by the doctrine of res judi-
cata. We disagree.
In its memorandum of decision, the second habeas
court found that the petitioner alleged in the first count
of his second habeas petition that his trial counsel ren-
dered deficient performance in that Attorneys Kevin
Barrs and M. Fred DeCaprio (1) presented inadequate
evidence during the hearing on the motion to suppress
the petitioner’s statement to the police, (2) failed to
investigate and demonstrate that the victim’s body was
mishandled by first responders, and (3) failed to intro-
duce exculpatory evidence regarding the contradiction
between Carr’s statement to the police, and a public
defender’s investigation report and his trial testimony.
The respondent, the Commissioner of Correction,
denied the allegations and averred that the ineffective
assistance of counsel claim was successive because it
was raised in the first habeas petition. The petitioner
replied that the claim in the second habeas petition
does not present the same ground as presented in the
first habeas petition.
The second habeas court cited Carter v. Commis-
sioner of Correction, 109 Conn. App. 300, 950 A.2d 619
(2008), for the law concerning successive petitions. ‘‘[A]
petitioner may bring successive petitions on the same
legal grounds if the petitions seek different relief. . . .
But where successive petitions are premised on the
same legal grounds and seek the same relief, the second
petition will not survive a motion to dismiss unless
the petition is supported by allegations and facts not
reasonably available to the petitioner at the time of the
original petition.’’ (Internal quotation marks omitted.)
Id., 306. The second habeas court also noted that Con-
necticut courts repeatedly have applied the doctrine of
res judicata to claims duplicated in successive habeas
petitions. See Moody v. Commissioner of Correction,
127 Conn. App. 293, 297–98, 14 A.3d 408, cert. denied,
300 Conn. 943, 17 A.3d 478 (2011).
The court further determined that the petitioner’s
first habeas petition was premised on four alleged defi-
ciencies of trial counsel. The petitioner requested that
the first habeas court vacate his conviction and sen-
tence, and remand the matter to the criminal court for
further proceedings. The claim of ineffective assistance
of trial counsel in the petitioner’s second habeas peti-
tion is identical to the one in the first habeas petition.
The court stated that unless the petitioner presented
newly discovered evidence that was not reasonably
available at the time of the first habeas trial, the peti-
tioner is barred from relitigating a claim of ineffective
assistance of trial counsel. In addition, the court found
that all of the witnesses at the second habeas trial either
testified at the first habeas trial or were available to
testify at that trial. Moreover, the documentary evidence
the petitioner offered at the second habeas trial con-
tained no new evidence, let alone evidence that was
not reasonably available at the time of the first habeas
trial. The court concluded that the claim of ineffective
assistance of trial counsel alleged in the second habeas
petition was successive and was therefore barred by
the doctrine of res judicata.
The petitioner’s claim of ineffective assistance of trial
counsel centers on the admission into evidence of Carr’s
February 16, 1999 statement to the police regarding a
conversation he had had with the petitioner about the
victim’s death. Carr testified at the petitioner’s criminal
trial, but he could not remember his conversation with
the petitioner and could not testify about it. He remem-
bered signing the statement he gave to the police, but
he claimed that the police made it up. Carr’s statement
to the police was admitted into evidence as a prior
inconsistent statement pursuant to State v. Whelan, 200
Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994,
107 S. Ct. 597, 93 L. Ed. 2d 598 (1986).
On appeal, the petitioner claims that his trial counsel
were deficient in failing to present evidence that Carr’s
trial testimony that he had no recollection of the conver-
sation with the petitioner was consistent with a report
generated by Ligia Werner, an investigator with the
Office of the Chief Public Defender, who interviewed
him on June 25, 2001. Werner’s report indicates that
when she spoke with Carr, he had no recollection of
the conversation with the petitioner or its contents. At
the criminal trial, Carr testified that he had no memory
of Werner’s interview of him. At the second habeas
trial, the petitioner argued that Werner’s report should
have been offered into evidence as Carr’s prior consis-
tent statement.
At the second habeas trial, the petitioner argued that
his trial counsel’s performances were deficient because
they failed to place the facts regarding Werner’s inter-
view with Carr before the jury or to call her as a witness
to substantiate his lack of memory regarding his conver-
sation with the petitioner. The petitioner claims that
trial counsel should have called Werner to testify. The
second habeas court, however, found that the petition-
er’s claim was based on the same legal ground asserted
in his first habeas petition. Moreover, Werner’s report
was known to trial counsel, and Werner was available
to testify at the first habeas trial. The court concluded,
therefore, that the petitioner’s claim was successive.
‘‘The doctrine of res judicata provides that a former
judgment serves as an absolute bar to a subsequent
action involving any claims relating to such cause of
action which were actually made or which might have
been made. . . . The doctrine . . . applies to criminal
as well as civil proceedings and to state habeas corpus
proceedings. . . . However, [u]nique policy considera-
tions must be taken into account in applying the doc-
trine of res judicata to a constitutional claim raised
by a habeas petitioner. . . . Specifically, in the habeas
context, in the interest of ensuring that no one is
deprived of liberty in violation of his or her constitu-
tional rights . . . the application of the doctrine of res
judicata . . . [is limited] to claims that actually have
been raised and litigated in an earlier proceeding.’’
(Internal quotation marks omitted.) Kearney v. Com-
missioner of Correction, 113 Conn. App. 223, 233, 965
A.2d 608 (2009).
Our Supreme Court has ‘‘recognized only one situa-
tion in which a court is not legally required to hear a
habeas petition. In Negron v. Warden, [180 Conn. 153,
158, 429 A.2d 841 (1980), the court] observed that pursu-
ant to Practice Book § . . . [23-29], [i]f a previous appli-
cation brought on the same grounds was denied, the
pending application may be dismissed without hearing,
unless it states new facts or proffers new evidence not
reasonably available at the previous hearing.’’
(Emphasis in original; internal quotation marks omit-
ted.) Kearney v. Commissioner of Correction, supra,
113 Conn. App. 234.
Given the facts of the present matter and the law
regarding successive petitions, we conclude that the
second habeas court properly determined that the peti-
tioner’s claim of ineffective assistance of trial counsel
was successive and therefore was barred by the doc-
trine of res judicata. The second habeas petition is
grounded in the claim of ineffective assistance of trial
counsel and alleges no new facts that were not known
at the time of the first habeas trial. The second habeas
court, therefore, did not abuse its discretion by denying
the petitioner certification to appeal on his claim of
ineffective assistance of trial counsel, as it is not an
issue debatable among jurists of reason that a court
could resolve it in a different manner, nor is it deserving
of encouragement to proceed further.
C
The petitioner claims that the habeas court improp-
erly determined that his statutory and constitutional
rights to the effective assistance of first habeas counsel
were not violated. In his second habeas petition, the
petitioner alleged that the performance of his first
habeas counsel, Christopher Duby, was deficient
because he failed to allege that the petitioner’s trial
counsel rendered ineffective assistance by (1) failing
to present evidence and testimony during the hearing
on the motion to suppress the petitioner’s statement to
the police, (2) failing to investigate defense witnesses
to demonstrate that first responders mishandled the
victim’s body, and (3) failing to introduce exculpatory
evidence through witnesses to show the contradiction
between Carr’s statement to the police, and his state-
ment to an investigator from the public defender’s office
and his trial testimony, and (4) failing to raise the Sala-
mon jury instruction issue in the first habeas petition.
He concedes, however, that the second habeas court
properly subsumed his claim of ineffective assistance
of trial counsel into his claim of ineffective assistance
of first habeas counsel.
To prevail on a claim of ineffective assistance of
habeas counsel that is predicated on the ineffective
assistance of trial counsel, a petitioner must demon-
strate that both trial and habeas counsel were ineffec-
tive. See Stanley v. Commissioner of Correction, 164
Conn. App. 244, 254, 134 A.3d 253, cert. denied, 321
Conn. 913, 136 A.3d 1274 (2016). ‘‘[When] applied to a
claim of ineffective assistance of prior habeas counsel,
the Strickland [v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] standard requires
the petitioner to demonstrate that his prior habeas
counsel’s performance was ineffective and that this
ineffectiveness prejudiced the petitioner’s prior habeas
proceeding. . . . [T]he petitioner will have to prove
that one or both of the prior habeas counsel, in pre-
senting his claims, was ineffective and that effective
representation by habeas counsel establishes a reason-
able probability that the habeas court would have found
that he was entitled to reversal of the conviction and
a new trial . . . .’’ (Emphasis omitted; internal quota-
tion marks omitted.) Harris v. Commissioner of Cor-
rection, 108 Conn. App. 201, 209–10, 947 A.2d 435, cert.
denied, 288 Conn. 911, 953 A.2d 652 (2008). A petitioner
who claims ineffective assistance of habeas counsel on
the basis of ineffective assistance of trial counsel must
satisfy Strickland twice; that is, he must show that his
appointed habeas counsel and his trial counsel were
ineffective. Lozada v. Warden, 223 Conn. 834, 842, 613
A.2d 818 (1992).
With respect to the motion to suppress the petition-
er’s statement to the police, the second habeas court
found that the petitioner’s motion to suppress was
unsuccessful prior to trial, on appeal, and at his first
habeas trial. At the second habeas trial, DeCaprio and
Barrs testified, but the court found that neither of them
offered any evidence of what could have been done to
make their representation on the motion to suppress
at trial more effective. The petitioner told Duby that he
believed that he was in custody and not free to leave
when the police were questioning him. Duby inter-
viewed some of the police officers involved. The first
habeas court concluded that even if the petitioner had
testified at the suppression hearing as he testified at
the habeas trial, the trial court would not have granted
the motion to suppress and, therefore, the petitioner
was not prejudiced by counsel’s decision not to offer
his testimony. In resolving the habeas appeal, this court
stated that the petitioner’s testimony at the first habeas
trial did not establish any credible new or additional
facts for a court to find that the petitioner was in cus-
tody, thus triggering his Miranda26 rights. Britton v.
Commissioner of Correction, supra, 141 Conn. App.
651–57. This court thus affirmed the finding of the
habeas court that the petitioner was not prejudiced
by his attorney’s failure to offer his testimony at the
suppression hearing. On the basis of the foregoing his-
tory of litigation and appeals, the second habeas court
found that the petitioner failed to demonstrate that
Duby was ineffective with respect to his investigation
of ineffective assistance of trial counsel regarding the
suppression of the petitioner’s statement.
With regard to the petitioner’s claim that Duby pro-
vided ineffective assistance because he failed to investi-
gate and subpoena witnesses to demonstrate that first
responders to the crime scene mishandled the victim’s
body, the second habeas court found that Duby spoke
with Carver and hired a medical expert because he was
not convinced that the cause of death was accurate,
and that the petitioner believed that the victim’s body
had been moved by the police. The expert’s testimony
was not particularly helpful to the petitioner because
the expert was of the opinion that if the victim’s body
had been moved, it did not affect the autopsy results,
and his opinions were consistent with Carver’s. The
second habeas court concluded that the evidence the
petitioner presented failed to demonstrate that Duby’s
performance was ineffective to demonstrate that first
responders at the crime scene mishandled the vic-
tim’s body.
As to the petitioner’s claim that Duby failed to intro-
duce adequate exculpatory evidence to show the con-
tradiction between Carr’s statement to the police and
his statement to Werner, and his trial testimony, DeCa-
prio testified that Carr’s testimony at the criminal trial
was adverse to the statement he gave to the police on
February 16, 1999. After he gave the statement to the
police, but prior to testifying at the petitioner’s criminal
trial in 2004, Carr testified at Pierre’s criminal trial.
Werner testified at the second habeas trial that she
interviewed Carr on June 27, 2001, and prepared a sum-
mary of the interview. Carr’s interview with Werner,
and his testimony at Pierre’s criminal trial and at the
petitioner’s criminal trial were consistent, but contra-
dicted his February 16, 1999 statement to the police.
At both criminal trials, Carr testified that he could not
remember anything he said to the police. His police
statement was admitted at both criminal trials as a prior
inconsistent statement pursuant to State v. Whelan,
supra, 200 Conn. 753.
The second habeas court reviewed all of Carr’s crimi-
nal trial testimony and found that he repeatedly testified
that he had no memory of what he said to the police.27
Although the trial court admitted Carr’s police state-
ment pursuant to Whelan, the petitioner did not chal-
lenge the evidentiary ruling on direct appeal. Pierre,
however, did challenge the admission of Carr’s police
statement in his direct appeal. Our Supreme Court
rejected Pierre’s claim. State v. Pierre, 277 Conn. 42,
53–86, 890 A.2d 474, cert. denied, 547 U.S. 1197, 126 S.
Ct. 2873, 165 L. Ed. 2d 904 (2006). The second habeas
court stated that it failed to see how a similar claim
raised at the petitioner’s first habeas trial would have
reached a different outcome. The petitioner presented
no evidence at the second habeas trial that the court
considered exculpatory. The jury was apprised of the
contradiction between Carr’s statement to the police
and his trial testimony. The second habeas court, there-
fore, concluded that the third alleged basis of ineffective
assistance of first habeas counsel failed.
The petitioner also alleged that Duby was ineffective
for failing to raise a Salamon jury instruction claim in
the first habeas petition. On the basis of Duby’s testi-
mony at the second habeas trial, the court found that
Duby was aware of Salamon and its progeny at the
time he was filing the amended petition, but that Luurt-
sema v. Commissioner of Correction, supra, 299 Conn.
740, had not yet been decided. Duby had considered
raising a Salamon claim but ultimately decided that
the trial court’s jury instructions on kidnapping were
not defective.
In considering this claim of ineffective assistance of
first habeas counsel, the second habeas court cited the
relevant law. ‘‘[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.’’ (Footnote omitted.) State v. Sala-
mon, supra, 287 Conn. 547. ‘‘Connecticut courts
ultimately assess the importance of a Salamon instruc-
tion by scrutinizing how a reasonable jury would per-
ceive the defendant’s restraint of the victim, particularly
with respect to when, where, and how the defendant
confined or moved the victim.’’ Wilcox v. Commis-
sioner of Correction, 162 Conn. App. 730, 745, 129 A.3d
796 (2016).
The court reviewed the two kidnapping charges
against the petitioner, i.e., kidnapping in the first degree
for abducting and restraining the victim with intent to
inflict physical injury, and abducting and restraining
the victim with the intent to accomplish and advance
the commission of a robbery. The court quoted the facts
reasonably found by the jury pursuant to our Supreme
Court’s decision in State v. Britton, supra, 283 Conn.
601–602. It also examined the prosecutor’s closing argu-
ment and the relevant portions of the trial court’s
jury instruction.
The second habeas court found that the parties did
not dispute that the jury found that the victim had
been moved and/or restrained on at least two separate
occasions as alleged in the two kidnapping counts:
‘‘[o]nce to facilitate injury to him, another time to rob
him.’’ The movements and/or restrictions had a clearly
defined and distinct significance from each other, and
exceeded that which was necessary to commit assault
and robbery. In other words, the movements or
restraints had independent criminal significance. The
court, therefore, concluded that the underlying facts
would not have warranted a jury instruction pursuant
to Salamon, but that if such a charge were warranted,
the absence of a Salamon charge was harmless. See,
e.g., State v. Hampton, supra, 293 Conn. 455–64 (lack
of Salamon instruction harmless impropriety given par-
ticular facts of case). The second habeas court con-
cluded, therefore, that Duby was not ineffective for
failing to raise a Salamon claim in the first habeas
petition. On the basis of our plenary review of the record
and the law, we agree with the conclusion of the second
habeas court.
For the foregoing reasons, we conclude that the sec-
ond habeas court abused its discretion by failing to
grant the petition for certification to appeal, but prop-
erly denied the petitioner’s second petition for a writ
of habeas corpus.
The judgment is affirmed.
In this opinion the other judges concurred.
1
When Jeffrey Smith, another of the perpetrators, was sentenced, the
sentencing court, Schimelman, J., ‘‘found that the incident was ‘vicious’
and it was done for ‘a few dollars and a fake wristwatch.’ ’’ State v. Smith,
Superior Court, judicial district of New London, Docket No. KNLCR-99-
250704, 2012 WL 5278688, *1 (October 10, 2012) (sentence review division).
2
Jarvis testified at trial that he remained in his vehicle and witnessed
the perpetrators assault the victim in the apartment parking lot. When the
perpetrators drove away from the apartment parking lot, Jarvis was unable
to follow them and went home. Several days later, he visited Smith at his
home. When Jarvis asked, Smith told him that the victim died at Bates Woods.
3
On February 16, 1999, Carr gave a written statement to the state police.
Carr stated in part that in the summer of 1998, the perpetrators helped him
get a job with a cleaning company. Company employees traveled together
in a van to and from work sites. As they were being driven home one day,
Carr overheard the petitioner and Pierre talking about the victim’s murder.
Carr asked them what they were talking about. The petitioner told Carr
how the victim had come to Lucky’s, how the perpetrators and the victim
drove to Pierre’s, how the perpetrators beat the victim and drove him to
Bates Woods and beat him again. Carr also stated that the petitioner ‘‘started
to brag and said that he took a pole and placed it into the [victim’s] mouth.
[The petitioner] said that he really jammed the pole down his throat and
then twisted the pole to break his neck. [The petitioner] said that prior to
doing this with the pole, the [victim] was still alive but after he did this,
the [victim] died immediately.’’ At the petitioner’s criminal trial, Carr did
not remember his conversation with the petitioner and could not testify
about it.
Prior to the start of the petitioner’s criminal trial, Carr was interviewed
by an investigator from the chief public defender’s office, Ligia Werner. In
her interview report, Werner indicated that Carr had no recollection of his
conversation with the petitioner or the contents of his statement. See part
III of this opinion.
4
During the course of his autopsy of the victim, Carver discovered that
the victim had suffered several broken ribs and that his jaw and facial bones
had been fractured.
5
With respect to the capital felony charge, the state’s attorney alleged
that the petitioner, with intent to cause the death of the victim, whom he
had kidnapped, did cause the death of the victim during the course of
the kidnapping.
In count four of the substitute information, the state’s attorney accused
the ‘‘[petitioner] of kidnapping in the first degree and charge[d] that at the
city of New London and the town of Waterford on or about the 23rd day
of August, 1998, [the petitioner] did abduct [the victim] and restrained [the
victim] with intent to inflict physical injury upon [the victim] in violation
of § 53a-92 (a) (2) (A) of said statutes.’’
In count five of the substitute information, the state’s attorney accused
the ‘‘[petitioner] of kidnapping in the first degree and charge[d] that at the
city of New London and the town of Waterford on or about the 23rd day
of August, 1998, the [petitioner] did abduct [the victim] and [restrained] the
victim with intent to accomplish and advance the commission of a robbery
in violation of [§] 53a-92 (a) (2) (B) of said statutes.’’
In count six of the substitute information, the state’s attorney accused
the ‘‘[petitioner] of robbery in the first degree and charge[d] that at the city
of New London and the town of Waterford on or about the 23rd day of
August, 1998, the [petitioner], in the course of the commission of the crime
of robbery and of immediate flight therefrom, the [petitioner, Smith and
Pierre] caused serious physical injury to [the victim], who was not a partici-
pant in the crime, in violation of [§] 53a-134 (a) (1) of said statutes.’’
6
The petitioner’s theory of defense was that he could not be guilty of
capital murder because he did not have the intent to cause the death of the
victim and that he was not the one who killed the victim. He argued that
the incident was a drug deal gone badly and that the victim died in a
manner that was not planned. The petitioner conceded, however, that he
was involved in the incident and that the state had proved that he assaulted
and robbed the victim.
7
On direct appeal, the petitioner claimed that the trial court improperly
denied his motion to suppress the statements he gave to the police, and
denied him a fair trial and an impartial jury by explaining to the jury that
if it found him guilty of capital felony, it would hear evidence regarding
aggravating factors during the penalty phase of the trial. See State v. Britton,
supra, 283 Conn. 600–601.
8
The petitioner alleged that his trial counsel ‘‘rendered ineffective assis-
tance by failing (1) to adequately advise him regarding a plea offer, (2) to offer
the petitioner’s testimony on the circumstances of his giving a statement
to police about his involvement in the victim’s death and (3) to object to
the trial court’s preliminary instructions to the venire panel.’’ Britton v.
Commissioner of Correction, supra, 141 Conn. App. 646.
9
Attorney Kevin Barrs and Attorney M. Fred DeCaprio represented the
petitioner at his criminal trial. In his second habeas petition, the petitioner
alleged that his trial counsel rendered ineffective assistance with respect
to (1) the motion to suppress his statement to the police, (2) the investigation
of first responders’ handling of the victim’s body, and (3) contradictions
between Carr’s statement to the police and his trial testimony.
10
Attorney Christopher Duby represented the petitioner at the first habeas
trial. The petitioner alleged that Duby’s representation was ineffective with
respect to (1) the motion to suppress the petitioner’s statement to the police,
(2) the investigation of the first responders’ handling of the victim’s body,
(3) contradictions between Carr’s statement to the police and his trial testi-
mony, and (4) the failure to raise a Salamon claim.
11
Sanseverino was overruled in part by State v. DeJesus, 288 Conn. 418,
437, 953 A.2d 45 (2008), and superseded in part after reconsideration by
State v. Sanseverino, 291 Conn. 574, 579, 969 A.2d 710 (2009).
12
The court’s conclusion is an inaccurate statement of the standard govern-
ing Salamon claims raised in a collateral proceeding. The standard set forth
in Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016),
is whether ‘‘a defect in a jury charge which raises a constitutional question
is reversible error if it is reasonably possible that, considering the charge
as a whole, the jury was misled. . . . [T]he test for determining whether a
constitutional error is harmless . . . is whether it appears beyond a reason-
able doubt that the error complained of did not contribute to the verdict
obtained. . . . A jury instruction that improperly omits an essential element
from the charge constitutes harmless error [only] if a reviewing court con-
cludes beyond a reasonable doubt that the omitted element was uncontested
and supported by overwhelming evidence, such that the jury verdict would
have been the same absent the error . . . .’’ (Internal quotation marks
omitted.) Id., 77–78.
13
Although we conclude that the petitioner’s claims of ineffective assis-
tance of trial and habeas counsel are frivolous, they are interwoven with
his Salamon claim.
14
The petitioner was convicted of the underlying crimes in January, 2005;
Salamon was decided in 2008. Our Supreme Court made its holding in
Salamon retroactive with respect to collateral attacks on a kidnapping
conviction in Luurtsema v. Commissioner of Correction, supra, 299
Conn. 740.
15
The second habeas court addressed the substance of the petitioner’s
Salamon claim in association with the petitioner’s claim that his first habeas
counsel rendered ineffective assistance by failing to raise a Salamon claim
in the first habeas petition. The court incorporated its Salamon analysis
when it addressed the petitioner’s stand-alone Salamon claim.
16
Judge Schimelman charged the jury with respect to capital felony, in
part, as follows: ‘‘The first count of the information accuses [the petitioner]
of capital felony and charges that at the city of New London and town of
Waterford on or about the twenty-third day of August, 1998, the [petitioner],
with intent to cause the death of [the victim], whom he had kidnapped, did
cause the death of [the victim] during the course of the kidnapping and
before [the victim] was able to return and be returned to safety . . . .
‘‘The second essential element of the crime of capital felony . . . is that
the [petitioner] kidnapped another person . . . [the victim]. For purposes
of this first count, our Penal Code provides [that] a person is guilty of
kidnapping when he abducts another person. . . .
‘‘Abduct means to restrain a person with intent to prevent his liberation
by either A, secreting or holding him in a place where he is not likely to
be found or, B, using or threatening to use physical force or intimidation.
‘‘Restrain means to restrict a person’s movements intentionally and unlaw-
fully in such manner as to interfere substantially with his liberty, by moving
him from one place to another or by confining him in the place where either
the restriction began or in a place to which he had been moved without
consent. Without consent includes but is not limited to deception. The
abduction and the restraining must be intentional. There must be an intent
to interfere substantially with the alleged victim’s liberty either by, one,
secreting or hiding him in a place where he is not likely to be found or,
two, by using or threatening to use physical force or intimidation.’’
17
Judge Schimelman charged the jury with respect to felony murder, in
part, as follows: ‘‘There are three essential elements, each of which the state
must prove beyond a reasonable doubt for you to find [the petitioner] guilty
of felony murder. One, the [petitioner], acting with one or more persons,
committed the crime of kidnapping or the crime of robbery; two, the death
of [the victim] was caused by the [petitioner] or another participant, and
that person whose death was caused was not a participant in the predicate
crime of robbery or kidnapping; and three, the [petitioner] or another partici-
pant caused the death of [the victim] in the course of or in furtherance of
the commission of the crime of kidnapping or robbery or of flight there-
from. . . .
‘‘First, with respect to the predicate crime of kidnapping for the purpose
of [felony murder], a person is guilty of kidnapping when he abducts another
person. [The court repeated its instruction regarding abduction and
restraint.] . . . Kidnapping is a continuing crime that commences once a
person is wrongfully deprived of freedom and continues for as long as that
unlawful detention lasts. The law which makes kidnapping criminal punishes
interference with personal liberty and restricting the alleged victim’s free-
dom of movement. You cannot convict the [petitioner] of kidnapping unless
you first find that there was a restriction of movement and that it was done
intentionally, that it was done without right or authority of law, and that it had
the effect of interfering substantially with the alleged victim’s liberty. . . .
‘‘With respect to the other predicate crime of robbery for purposes of
[felony murder], a person commits robbery when, in the course of commit-
ting a larceny, he uses or threatens the immediate use of physical force
upon another person for the purpose of preventing or overcoming resistance
to the taking of the property or to the retention thereof immediately after
the taking or compelling the owner of such property to deliver up the
property or to engage in other conduct which aids in the commission of
the larceny. . . .
‘‘A larceny is a theft or stealing. A person commits larceny when, with
intent to deprive another person of property or to appropriate the same to
himself or a third person, he wrongfully takes, obtains, or withholds such
property from an owner.’’
18
Judge Schimelman charged the jury with respect to the kidnapping
counts, in relevant part, as follows:
‘‘For you to find the [petitioner] directly committed the crime of kidnap-
ping in the first degree, § 53a-92 (a) (2) (A), as a principal, the state must
prove each of the following essential elements beyond a reasonable doubt:
One, the [petitioner] abducted the alleged victim, two, the [petitioner] unlaw-
fully restrained the person he abducted and, three, he did so with intent to
inflict physical injury on the alleged victim. [The court iterated its instruc-
tions regarding abduction, restraint, and kidnapping.] . . .
‘‘Again, the term physical force has its everyday meaning. It includes any
violence or superior physical strength against the alleged victim. It is for
you to decide whether the evidence proves that physical force was used
by the [petitioner], and whether it actually produced and resulted in the
accomplishment of the restraint which is charged here.
‘‘The third essential element of kidnapping in the first degree in violation
of § 53a-92 (a) (2) (A) is that the [petitioner] abducted and restrained the
alleged victim . . . with the intent to inflict physical injury upon him. Physi-
cal injury means an impairment of physical condition or pain. . . .
‘‘The fifth count of the information accuses [the petitioner] of the crime
of kidnapping in the first degree and charges . . . that [the petitioner] did
abduct [the victim] and restrained [the victim] with intent to accomplish
and advance the commission of a robbery in violation of § 53a-92 (a) (2)
(B) . . . . [T]he state must prove each of the following essential elements
beyond a reasonable doubt: One, the [petitioner] abducted the alleged victim,
two, the [petitioner] unlawfully restrained the person he abducted and,
three, he did so with the intent to accomplish or advance the commission
of a felony, here, the crime of robbery.’’
19
With respect to robbery in the first degree, Judge Schimelman charged
the jury in relevant part: ‘‘The sixth . . . count of the information accuses
[the petitioner] of robbery in the first degree and . . . [charges that] in the
course of the commission of the crime of robbery and of immediate flight
therefrom, [the perpetrators] caused serious physical injury to [the victim],
who was not a participant in the crime. . . . In order to find the [petitioner]
guilty of this crime . . . the state must prove beyond a reasonable doubt,
one, the [petitioner] committed a robbery and, two, in the course of the
commission of that robbery or immediate flight therefrom, the [petitioner]
or another participant in the crime caused serious physical injury to a person
who was not a participant in the crime. . . .
‘‘Serious physical injury means physical injury which creates a substantial
risk of death or which causes serious impairment of health or serious loss
or impairment of any function of any bodily organ for purposes of this
sixth count.’’
20
But see footnote 12 of this opinion regarding the proper standard govern-
ing Salamon claims.
21
In support of its conclusion that the error in failing to give a Salamon
instruction, if any, was harmless, the second habeas court cited State v.
Hampton, 293 Conn. 435, 455–64, 988 A.2d 167 (2009) (lack of Salamon
instruction harmless error given particular facts), and State v. Nelson, 118
Conn. App. 831, 834–36, 856, 986 A.2d 311 (same), cert. denied, 295 Conn.
911, 989 A.2d 1074 (2010).
22
The record contains no evidence as to precisely when the perpetrators
took the victim’s watch and money. The robbery, therefore, is central to
our analysis of the petitioner’s Salamon claim. Robbery generally may be
defined as larceny by force. See State v. Townsend, 206 Conn. 621, 626, 539
A.2d 114 (1988). As such, the petitioner contends that the perpetrators’
restraint and movement of the victim was incidental to the crime of robbery.
23
The court instructed the jury [with respect to felony murder] in relevant
part as follows: ‘‘In order for you to find the [petitioner] directly committed
the predicate crime of robbery as a principal, the state must prove that the
[petitioner], in the course of committing a larceny, used or threatened the
immediate use of physical force upon another person, that is, [the victim],
to prevent or overcome resistance to the taking of the property or to its
retention or compelling [the victim] to deliver up the property or to engage
in other conduct which aided in the commission of the alleged larceny. . . .
‘‘The gist of the crime of robbery is the act of committing a larceny by
physical force or threat of immediate use of physical force. Like the intent
element of larceny, the remaining essential elements of the offense of rob-
bery must be done intentionally, as I have explained that. Physical force or
the threat of its immediate use is a common, readily understandable expres-
sion having its ordinary meaning. It means the application or threat of
external physical power to another person. Physical force or its immediate
threat must be for the purpose of committing the larceny. Such physical force
must be used or threatened for the purpose of preventing or overcoming
resistance to the taking of the property or to the retention thereof immedi-
ately after the taking or for the purpose of compelling the owner of the
property to deliver up the property or to engage in other conduct which
aids in the commission of the larceny. Robbery requires proof of larceny
by force or the threat of use of force, and proof of larceny requires proof
of a taking of property with the specific intent to deprive the owner of its
possession permanently.’’
24
On appeal, the petitioner argues that the victim may have been dead
when he was put in the backseat of the Saab. That argument is belied by
the petitioner’s statement to the police that the victim was alive at that time.
25
Even though we conclude, on the basis of the facts of this particular
case, that the petitioner’s intent is not susceptible to more than one interpre-
tation; see White v. Commissioner of Correction, supra, 170 Conn. App.
429; we have undertaken an analysis of the six Salamon jury instruction
factors; State v. Salamon, supra, 287 Conn. 547–48; which supports our
conclusion that the petitioner’s restraint and movement of the victim was
more than was necessary to complete the crimes of assault and robbery.
The petitioner’s restraint of the victim was extensive: it began inside the
Saab, continued at the apartment parking lot where he beat him, and contin-
ued when he put the injured victim back in the Saab and drove him to Bates
Woods where he put a pipe in the victim’s mouth and twisted it, resulting
in the victim’s death. The restraint and movement that occurred after the
petitioner beat the victim at the apartment parking lot was unnecessary to
complete the crimes of assault and robbery and, therefore, had independent
significance. The crimes could have been completed prior to returning the
victim to the Saab and driving him to Bates Woods. The petitioner’s restraint
and movement of the badly injured victim from the apartment parking
lot to Bates Woods prevented the victim from summoning assistance. The
petitioner’s moving the victim obviously reduced the petitioner’s risk of
detection. Finally, the petitioner’s restraint and movement of the victim
greatly increased the risk of harm to the victim, who was murdered. Under
the circumstances of this case, we conclude that the jury was not misled
by the failure to give the Salamon charge and, therefore, the failure was
harmless beyond a reasonable doubt.
26
See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966).
27
Carr died and was not available to testify at the second habeas trial.