Bell v. Commissioner of Correction

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LEON BELL v. COMMISSIONER OF CORRECTION
(AC 38401)
DiPentima, C. J., and Lavine and Sheldon, Js.
Syllabus
The petitioner, who had been convicted of kidnapping in the first degree,
robbery in the first degree, burglary in the third degree and larceny in
the third degree, sought a writ of habeas corpus. The petitioner had
committed separate robberies at two restaurants during which he
ordered the victims, employees at each restaurant, to open the restau-
rants’ safes and to enter walk-in refrigerators. The petitioner claimed
that he was denied due process when the trial court failed to instruct
the jury, in accordance with State v. Salamon (287 Conn. 509), that he
could not be convicted of kidnapping if his confinement or movement
of the victims was merely incidental to his commission of the robberies.
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 habeas court determined that the petitioner failed
to prove that he was denied due process, concluding that the lack of a
Salamon instruction was harmless because the jury would have found
him guilty even if it had been instructed properly pursuant to Salamon.
The habeas court found that there was overwhelming and uncontested
evidence that the petitioner’s conduct in ordering the victims to enter
the refrigerators was not inherent in or necessary to commit the robber-
ies. The court thereafter rendered judgment denying the habeas petition,
from which the petitioner, on the granting of certification, appealed to
this court. Held that the habeas court improperly denied the habeas
petition, the respondent Commissioner of Correction having failed meet
the arduous burden of demonstrating that the omission of an instruction
on incidental restraint did not contribute to the verdict: the question of
the petitioner’s intent when he moved and confined the victims in the
refrigerators was contested and was not supported by overwhelming
evidence, as a properly instructed jury could have had reasonable doubt
as to whether that movement and confinement constituted a continuous,
uninterrupted course of conduct related to the robberies or independent
criminal acts that established the petitioner’s intent to prevent the vic-
tims’ liberation for a longer period of time and to a greater degree
than was necessary for the commission of the robberies; moreover, the
petitioner’s criminal conduct occurred at a single location, and the
robbery and confinement were not separated by a significant time period
or distance, which made it difficult to determine if the confinement of
the victims had independent criminal significance, a properly instructed
jury would not have concluded necessarily that the robberies were
completed prior to the movement and confinement of the victims, but
could have determined that the movement and confinement occurred
during a continuous sequence of events that was related to the taking
of money from the safes and was not a separate criminal offense, and
the significance of those factors outweighed the significance of those
that supported the respondent’s claim of harmless error; accordingly,
this court could not conclude that the absence of a Salamon instruction
amounted to harmless error in the present case.
(One judge dissenting)
Argued October 24, 2017—officially released August 7, 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, Oliver, J.; thereafter, the
petition was withdrawn in part; judgment denying the
petition, from which the petitioner, on the granting of
certification, appealed to this court. Reversed; judg-
ment directed; further proceedings.
David B. Rozwaski, assigned counsel, for the appel-
lant (petitioner).
Sarah Hanna, assistant state’s attorney, with whom,
on the brief, were Gail P. Hardy, state’s attorney, and
Tamara A. Grosso, assistant state’s attorney, for the
appellee (respondent).
Opinion
DiPENTIMA, C. J. The petitioner, Leon Bell, appeals
from the judgment of the habeas court denying his
petition for a writ of habeas corpus.1 The habeas court
denied the petition after concluding that, although the
petitioner was entitled to a jury instruction in accor-
dance with the seminal case of State v. Salamon, 287
Conn. 509, 949 A.2d 1092 (2008), that failure was harm-
less beyond a reasonable doubt. The dispositive issue
in this appeal is whether the habeas court correctly
concluded that the absence of a Salamon instruction
in the petitioner’s criminal trial was harmless beyond
a reasonable doubt. In a separate opinion, which we
also release today; see Banks v. Commissioner of Cor-
rection, 184 Conn. App. 101, A.3d (2018); we
considered the same legal claim under similar facts. In
Banks, we concluded that, under the facts of that case,
the respondent, the Commissioner of Correction, failed
to meet his burden to prove that the absence of the
Salamon instruction was harmless beyond a reasonable
doubt and therefore the habeas court in that case
improperly denied the habeas petition. Id., 132. Our
analysis and conclusion in Banks controls the resolu-
tion of the present case. Accordingly, we reverse the
judgment of the habeas court and remand the case
with direction to grant the petition for a writ of habeas
corpus and to proceed with a new trial on the kidnap-
ping charges.
The following facts and procedural history are rele-
vant. After a jury trial, the petitioner was convicted of
two counts of robbery in the first degree in violation
of General Statutes § 53a-134 (a) (4), two counts of
burglary in the third degree in violation of General Stat-
utes § 53a-103 (a), two counts of kidnapping in the first
degree in violation of General Statutes § 53a-92 (a) (2)
(B), and two counts of larceny in the third degree in
violation of General Statutes § 53a-124 (a) (2). See State
v. Bell, 93 Conn. App. 650, 652, 981 A.2d 9, cert. denied,
277 Conn. 933, 896 A.2d 101 (2006). Following the peti-
tioner’s convictions, the court, Mullarkey, J., sentenced
the petitioner to a total effective sentence of thirty-six
years incarceration.
The criminal charges stemmed from two separate
incidents occurring at Friendly’s restaurants, one in
Manchester on April 12, 2001, and the other in Glaston-
bury on April 14, 2001, during which the petitioner
instructed the respective victims, employees of Friend-
ly’s, to enter walk-in refrigerators after ordering them
to open the restaurants’ safes. See id., 652–53. The state
charged the petitioner in two separate long form infor-
mations, which the court consolidated for trial; see id.,
654; each information alleged one count each of robbery
in the first degree, burglary in the third degree, kidnap-
ping in the first degree, and larceny in the third degree.
Both kidnapping charges alleged in relevant part that
the petitioner had violated § 53a-92 (a) (2) (B) when
he ‘‘abducted another person and restrained the person
abducted with the intent to accomplish and advance
the commission of a felony (to wit: a robbery).’’
After this court affirmed the petitioner’s convictions
on direct appeal and prior to the final determination of
his first habeas petition,2 the law fundamentally
changed with regard to kidnapping offenses when our
Supreme Court decided State v. Salamon, supra, 287
Conn. 509, and Luurtsema v. Commissioner of Correc-
tion, 299 Conn. 740, 12 A.3d 817 (2011). See, e.g., Hinds
v. Commissioner of Correction, 321 Conn. 56, 66–69,
136 A.3d 596 (2016) (describing shift in interpretation
of kidnapping statutes). ‘‘Pursuant to the holdings of
these decisions, a [petitioner] who has been convicted
of kidnapping may collaterally attack his kidnapping
conviction on the ground that the trial court’s jury
instructions failed to require that the jury find that the
[petitioner’s] confinement or movement of the victim
was not merely incidental to the [petitioner’s] commis-
sion of some other crime or crimes.’’ Wilcox v. Commis-
sioner of Correction, 162 Conn. App. 730, 736, 129 A.3d
796 (2016); see also Hinds v. Commissioner of Correc-
tion, supra, 69 (as matter of state common law, policy
considerations weighed in favor of retroactive applica-
tion of Salamon to collateral attacks on judgments ren-
dered final prior to release of Salamon decision).
The petitioner, self-represented at the time, com-
menced a second habeas action on June 8, 2012, which
he later amended after being appointed counsel (opera-
tive petition). Among other allegations, he claimed that
his two kidnapping convictions were invalid because
the trial court had not instructed the jury in accordance
with Salamon and Luurtsema.3 The respondent filed a
return on January 23, 2015, denying the material allega-
tions of the operative petition. A one day habeas trial
took place on January 28, 2015. At that proceeding, the
habeas court admitted into evidence the transcripts
from the petitioner’s criminal trial.
The habeas court, Oliver, J., issued its memorandum
of decision on August 12, 2015. Although the operative
petition contained three counts; see footnote 1 of this
opinion; the court noted that ‘‘[t]he gravamen of the
petitioner’s claims is that his criminal jury was not
properly instructed on the kidnapping charge[s] and
that he, pursuant to . . . State v. Salamon, [supra, 287
Conn. 509], is entitled to have a properly instructed jury
decide the kidnapping charge[s].’’ After determining
that the petitioner’s due process claim—count three—
rested ‘‘[a]t the heart of all counts,’’ the court noted
that, as alleged, the petitioner’s failure to prove count
three would dispose of his additional claims. The court
therefore first addressed count three.
The court concluded that the petitioner failed to
prove that he was denied due process.4 Although it
determined that the jury should have been instructed
in accordance with Salamon, the court concluded that
the lack of such an instruction was harmless. With
respect to assessing harm, the court considered
whether, ‘‘in examining the entire record, this court
[was] satisfied beyond a reasonable doubt that the omit-
ted nonincidental restraint element was uncontested
and supported by overwhelming evidence, such that
the jury verdict would have been the same if the jury had
been so instructed.’’ The court stated that the record
‘‘clearly demonstrate[d] the overwhelming and uncon-
tested evidence of nonincidental restraint of the two
victims.’’ More specifically, it concluded that ordering
both victims of the Manchester and Glastonbury robber-
ies to enter walk-in refrigerators was ‘‘not necessary to
commit the [robberies]. Any [such] restraint was not
inherent in the [robberies] . . . and helped prevent the
victim[s] from summoning assistance, thereby reducing
the risk of the petitioner being detected.’’ Accordingly,
the court concluded, ‘‘beyond a reasonable doubt,’’ that
the jury would have found the petitioner guilty of two
counts of kidnapping even if the jurors had been
instructed properly pursuant to Salamon.
Due to the petitioner’s failure to prove his due process
claim, the court denied the petition for a writ of habeas
corpus. Following that denial, the habeas court granted
his petition for certification to appeal. This appeal fol-
lowed. Additional facts will be set forth as necessary.
We begin with our standard of review. ‘‘In our review
of the issues raised, we are mindful that, while [t]he
underlying historical facts found by the habeas court
may not be disturbed unless the findings were clearly
erroneous . . . [q]uestions of law and mixed questions
of law and fact receive plenary review.’’ (Internal quota-
tion marks omitted.) Hinds v. Commissioner of Correc-
tion, supra, 321 Conn. 65. ‘‘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.’’ Farmer v. Commissioner
of Correction, 165 Conn. App. 455, 459, 139 A.3d 767,
cert. denied, 323 Conn. 905, 150 A.3d 685 (2016); see
also Hinds v. Commissioner of Correction, supra, 60,
65; Nogueira v. Commissioner of Correction, 168 Conn.
App. 803, 814, 149 A.3d 983, cert. denied, 323 Conn. 949,
169 A.3d 792 (2016).
The petitioner claims that the habeas court improp-
erly concluded that he was not deprived of due process
when the jury found him guilty of kidnapping in the first
degree without being instructed pursuant to Salamon.
According to the petitioner, placing both victims in
walk-in refrigerators was ‘‘clearly incidental’’ to, and
was part of the ‘‘continuous activity’’ of, robbing the
Friendly’s restaurants. Therefore, the petitioner argues
that the habeas court improperly concluded that the
lack of Salamon instructions was harmless beyond a
reasonable doubt.5
In response, the respondent argues that the failure
to give a Salamon instruction was ‘‘harmless under any
applicable standard.’’6 According to the respondent, the
robberies occurred before the petitioner forced both
victims into the walk-in refrigerators.7 Because of this,
the respondent maintains that confining the victims in
the walk-in refrigerators was not necessary to commit
the robberies, nor was it the type of incidental restraint
contemplated by Salamon. Simply put, the respondent
contends that confining the victims in the walk-in refrig-
erators had independent legal significance, and ‘‘estab-
lish[ed] [the petitioner’s] intent to prevent the victims’
liberation for a longer period of time and to a greater
degree than was necessary for the commission of the
robberies.’’
The issue presented herein is not whether there was
sufficient evidence to convict the petitioner of both
kidnapping and robbery. Banks v. Commissioner of
Correction, supra, 184 Conn. App. 103; see also Hinds
v. Commissioner of Correction, supra, 321 Conn. 91.
Similarly, it is not whether a reasonable probability
exists that a jury, properly instructed in accordance
with Salamon, would reach a different result. Banks v.
Commissioner of Correction, supra, 103. Instead, the
respondent bears the ‘‘arduous burden of demonstra-
ting that the omission of an instruction on incidental
restraint did not contribute to the verdict.’’ Id. We con-
clude that this burden has not been met, and, therefore,
we reverse the judgment of the habeas court.8
We recite, in some detail, the underlying facts sur-
rounding the Manchester and Glastonbury robberies,
which the jury reasonably could have found, as part of
our analysis. See Nogueira v. Commissioner of Correc-
tion, supra, 168 Conn. App. 814–15; see also State v.
Bell, supra, 93 Conn. App. 652–54. At approximately 1
a.m. on April 12, 2001, Cheryl Royer was the last
employee to leave the Friendly’s restaurant in Manches-
ter. As she was exiting the restaurant, the petitioner
approached her, stated that he had a gun, and ordered
her to ‘‘get back inside’’ and to ‘‘give him the money.’’
Once Royer informed the petitioner that she did not
have any money, the petitioner told her ‘‘to get the
money from the safe.’’ The petitioner and Royer entered
the restaurant together and walked to the manager’s
office, the location of the safe. Royer then opened the
safe at the petitioner’s direction and ‘‘was told to sit in
the chair in the corner and turn away.’’ After approxi-
mately ‘‘[a] minute’’ or ‘‘[a] matter of minutes’’ sitting
in the chair, the petitioner told Royer ‘‘to go into the
walk-in refrigerator.’’ The walk-in refrigerator was
approximately fifteen feet down the hall from the man-
ager’s office, and, after the petitioner finished looting
the safe, he ordered Royer to proceed into the refrigera-
tor. Once she entered the refrigerator, and after the
refrigerator door shut behind her, the petitioner told
her ‘‘to stay in there for fifteen minutes.’’9 Royer smoked
part of a cigarette, and, after a few minutes, she left
the refrigerator and ran into the office to call the police.
The petitioner was not in the restaurant when Royer
exited the refrigerator.
Two days later, on April 14, 2001, at approximately
6 a.m., Tricia Smith was the first employee to arrive
for the opening shift at the Friendly’s restaurant in
Glastonbury. As she entered the restaurant, the peti-
tioner approached her from behind and ‘‘told [her] to
turn off the alarm.’’ Smith testified: ‘‘He told me—he
asked me where the safe was, I told him it was in the
back dish room, [and] he told me to go back and open
it.’’ Smith did not see a gun, but the petitioner had
something underneath his jacket that looked like one.
Smith led the petitioner to the safe and, after opening
it, ‘‘[the petitioner] told [her] to go into the walk-in
cooler. So [she] unlocked it and got in.’’ The walk-in
refrigerator was ten feet away from the safe, and the
petitioner ordered Smith into the refrigerator ‘‘[j]ust
two [or] three minutes’’ after she first saw him. Once
she was inside the refrigerator, the petitioner told her
that ‘‘he would let [her] know when he was finished’’
and when it was safe to come out. Approximately two
minutes after entering the refrigerator, Smith heard the
petitioner say something that she could not make out.
‘‘[She] then waited a few more minutes after that’’
before she peeked out of the refrigerator to see if the
petitioner had left the restaurant. Seeing that the peti-
tioner had left, she exited the refrigerator and ran to
the nearby gas station for help.
Finally, although the petitioner did not testify at trial,
his statement to the police was read into the record and
became a full exhibit. In that statement, he confessed to
both robberies. With respect to the Manchester robbery
involving Royer, his statement provided in relevant part:
‘‘Once we were in the back room, [Royer] opened the
safe. After she opened the safe, I asked her which one—
which one is the walk-in refrigerator. She pointed to
one, and I asked her to step in there for a minute and
I’ll come back and get you when I’m through. I then
took the money out of the safe. . . . After I got the
money, I left. The manager was still in the refrigerator
when I left.’’ With respect to the Glastonbury robbery
involving Smith, the petitioner’s statement provided in
relevant part: ‘‘The only other robbery I did was the
one in Glastonbury this morning, [April 14, 2001]. . . .
I told [Smith] to open the safe. . . . After she opened
the safe I told her to get in the refrigerator. After I got
the money from the safe, I left.’’
We now turn to the legal principles governing
whether an omitted jury instruction constitutes harm-
less error. It is undisputed that the trial court did not
provide an incidental restraint instruction in accor-
dance with Salamon. ‘‘[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 con-
stitutional 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 improperly omits an essential ele-
ment 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 the jury
verdict would have been the same absent the error
. . . . The failure to charge in accordance with Sala-
mon is viewed as an omission of an essential element
. . . and thus gives rise to constitutional error.’’ (Cita-
tion omitted; internal quotation marks omitted.) Hinds
v. Commissioner of Correction, supra, 321 Conn. 77–78;
see also Luurtsema v. Commissioner of Correction,
supra, 299 Conn. 770; White v. Commissioner of Correc-
tion, 170 Conn. App. 415, 427–28, 154 A.3d 1054 (2017);
Nogueira v. Commissioner of Correction, supra, 168
Conn. App. 812–13; see generally State v. Fields, 302
Conn. 236, 245–46, 24 A.3d 1243 (2011) (on direct
appeal, jury instruction that omits essential element
from charge constitutes harmless error only if reviewing
court concluded, beyond reasonable doubt, that omit-
ted element was uncontested and supported by over-
whelming evidence such that jury verdict would have
been same absent error); State v. Flores, 301 Conn.
77, 83, 17 A.3d 1025 (2011) (on direct appeal, test for
determining whether there is constitutional error in jury
instruction is whether it appears beyond reasonable
doubt that error complained of did not contribute to
verdict).
‘‘[W]e underscore that a determination of sufficient
evidence to support a kidnapping conviction is not the
appropriate yardstick by which to assess the likelihood
of a different result [and that the burden of proving
harmlessness rests with the respondent].’’ (Emphasis
added.) Hinds v. Commissioner of Correction, supra,
321 Conn. 91; see id., 78. Similarly, the appropriate test
is not whether a properly instructed jury likely would
have found the petitioner guilty of kidnapping. Id., 85;
see also State v. Flores, supra, 301 Conn. 87.
‘‘To answer the question of whether the absence of
the Salamon standard constituted harmless error
requires us to examine the factors and principles enun-
ciated in that case. . . . [A] defendant may be con-
victed of both kidnapping and another substantive
crime if, at any time prior to, during or after the
commission of that other crime, the victim is moved
or confined in a way that has independent criminal
significance, that is, the victim was restrained to an
extent exceeding that which was necessary to accom-
plish or complete the other crime. . . . We iterate 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 Salamon court set forth a list of factors [f]or
purposes of making [the] determination [of whether a
criminal defendant’s movement or confinement of a
victim was necessary or incidental to the commission
of another crime; specifically] the jury should be
instructed to consider the various relevant factors,
including [1] the nature and duration of the victim’s
movement or confinement by the defendant, [2]
whether that movement or confinement occurred dur-
ing the commission of the separate offense, [3] whether
the restraint was inherent in the nature of the separate
offense, [4] whether the restraint prevented the victim
from summoning assistance, [5] whether the restraint
reduced the defendant’s risk of detection and [6]
whether the restraint created a significant danger or
increased the victim’s risk of harm independent of that
posed by the separate offense.’’ (Citations omitted;
emphasis in original; internal quotation marks omitted.)
Banks v. Commissioner of Correction, supra, 184 Conn.
App. 114–15; see also State v. Flores, supra, 301
Conn. 84–85.
At this point, a discussion of Banks v. Commissioner
of Correction, supra, 184 Conn. App. 101, facilitates our
analysis. In that case, the petitioner, Mark Banks, was
convicted in 1997 of four counts of kidnapping in the
first degree, four counts of robbery in the first degree
and two counts of criminal possession of a pistol or
revolver. Id., 104. His convictions stemmed from the
events at two Bedding Barn stores in Newington and
Southington. Id., 105–106. On August 30, 1995, Banks,
posing as a customer, entered the Newington store
shortly before closing time. Id., 105. After briefly speak-
ing to one employee, Banks pulled a silver handgun
from his bag and directed the employee to open the
cash register. Id. After taking money, Banks moved the
employee and his coworker to a nearby bathroom. Id.
Banks propped a mop handle against the door to keep
the employees in the bathroom. Id. After a brief time,
the employees exited the bathroom and called the
police. Id.
On the evening of September 13, 1995, Banks, along
with an unknown woman, went to the Southington store
where he again posed as a customer and held up a store
employee and her friend at gunpoint. Id., 105–106. After
taking money from the cash register and a bank bag, the
petitioner ordered the two women to lock themselves
in the bathroom, which they did. Id., 106. Shortly there-
after, the two women exited the bathroom and called
the police. Id.
Following his conviction and unsuccessful direct
appeal, Banks filed a petition for a writ of habeas corpus
in which he challenged his kidnapping convictions on
the ground that the jury in his criminal trial had not
received a Salamon instruction. Id. In that case, the
habeas court accepted the respondent’s concession that
Banks had been entitled to a Salamon instruction. Id.,
106 n.5. ‘‘The habeas court concluded that the respon-
dent demonstrated that the absence of a Salamon
instruction at [Banks’] criminal trial constituted harm-
less error because the movements and confinements
[of the victims] were perpetrated after the crimes of
robbery were committed and cannot conceivably be
regarded as coincidental with or necessary to complete
the substantive crimes of robbery. Depriving someone
of their freedom of movement by imprisoning them
in a bathroom subsequent to acquiring their money,
although convenient for the robber, is not inherent in
the crime of robbery. It is crystal clear that [Banks’]
intent and purpose for locking up his robbery victims
was to postpone their summoning of assistance and
reporting of the crime to police, thus facilitating
[Banks’] escape from the scene and delaying detection
of his crime, identity, and/or whereabouts. Also, [Banks]
extended the period of infliction of duress and distress
for the victims by restraining them beyond the time of
fulfillment of his quest, i.e., seizure of cash.’’ (Emphasis
in original; internal quotation marks omitted.) Id.,
107–108.
Banks appealed from the decision of the habeas
court, claiming that it improperly had concluded that
the absence of the Salamon instruction was harmless
error. Id., 104. Specifically, he argued that ‘‘it would
have been reasonable for jurors to conclude that the
brief restraint that occurred during the commission of
the robbery was incidental to the robbery, and there-
fore, was not a kidnapping. Because [Banks] was
deprived of the opportunity of having the jurors con-
sider this issue, which was susceptible to more than
one interpretation, the respondent did not prove the
error was harmless beyond a reasonable doubt.’’ (Inter-
nal quotation marks omitted.) Id., 114. Ultimately, we
agreed with Banks and reversed the judgment of the
habeas court. Id., 132.
In both Banks v. Commissioner of Correction, supra,
184 Conn. App. 101, and White v. Commissioner of
Correction, supra, 170 Conn. App. 430–32, we began
our analysis with the first Salamon factor, that is, the
nature and duration of the victims’ movement or con-
finement by the perpetrator. Specifically, we observed:
‘‘[I]n Hinds v. Commissioner of Correction, supra, 321
Conn. 92–93, our Supreme Court attempted to catego-
rize various Salamon incidental restraint cases with
differing degrees of confinement or 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 a car and drove her
around for approximately three hours before commit-
ting sexual assault and attempted murder); State v. Jor-
dan, [129 Conn. App. 215, 222–23, 19 A.3d 241] (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
prolonged restraint of victim while driving for more
than one hour from one town to another not merely
incidental 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 instruc-
tion harmless—when the offenses are separated by
greater time spans, or by more movement or restric-
tion of movement.
‘‘Conversely, multiple offenses occurring in a much
shorter or more compressed time span make the same
determination more difficult and, therefore, more
likely to necessitate submission to a jury for it to
make its factual determinations regarding whether
the restraint is merely incidental to another, separate
crime. In those scenarios, [in which] kidnapping and
multiple offenses occur closer in time to one another,
it becomes more difficult to distinguish the confinement
or restraint associated with the kidnapping from
another substantive crime. The failure to give a proper
Salamon instruction in those scenarios is more likely
to result in harmful error precisely because of the diffi-
culty in determining whether each crime has indepen-
dent criminal significance. See State v. Thompson, [118
Conn. App. 140, 162, 983 A.2d 20 (2009)] (within fifteen
minutes defendant entered victim’s car, pushed her
behind a building and sexually assaulted her) [cert.
denied, 294 Conn. 932, 986 A.2d 1057 (2010)]; State v.
Flores, [supra, 301 Conn. 89] (defendant’s robbery of
victim in her bedroom lasted between five and twenty
minutes); State v. Gary, [120 Conn. App. 592, 611, 992
A.2d 1178] (defendant convicted of multiple sexual
assaults and an attempted sexual assault that were in
close temporal proximity to the defendant’s restraint of
the victim; thus court determined evidence reasonably
supports a finding that the restraint merely was inciden-
tal to the commission of other crimes, namely, sexual
assaults and attempted sexual assault; lack of Salamon
instruction harmful error) [cert. denied, 297 Conn. 910,
995 A.2d 637 (2010)]. . . . [S]ee generally Wilcox v.
Commissioner of Correction, supra, 162 Conn. App.
743 (review of appellate decisions reveals that absence
of Salamon instruction is generally more prejudicial
where kidnapping related actions were closely aligned
in time, place and manner to other criminal acts and
these factors are particularly crucial).’’ (Emphasis in
original; internal quotation marks omitted.) Banks v.
Commissioner of Correction, supra, 184 Conn. App.
116–18.
The minimal movement and confinement of Royer
and Smith are very similar to those of the victims in
Banks. With respect to the Manchester incident in this
case, the petitioner approached Royer as she was leav-
ing the restaurant and, after indicating that he had a
gun, ordered her back inside. The petitioner and Royer
walked to the location of the safe inside, where he
directed her to open it. After taking the money from
the safe, the petitioner moved Royer to a walk-in refrig-
erator, where she was confined for a few minutes.
The criminal activity at the Glastonbury restaurant
bears a marked resemblance to that at the Manchester
location, albeit occurring in the early morning as
opposed to after closing time. The petitioner
approached Smith as she opened the doors of the res-
taurant. Intimating that he possessed a gun, the peti-
tioner went inside with Smith, and the two immediately
went to the restaurant’s safe. The petitioner forced
Smith to open the safe, and then moved her to, and
confined her in, the walk-in refrigerator. Thus, the
movements of Royer and Smith were limited to the area
within the Friendly’s, and the confinement occurred
virtually contemporaneously with the taking of the
money.
We iterate that, in each instance, the petitioner’s crim-
inal conduct occurred at a single location, and the rob-
bery and confinement were not separated by a
significant time period or distance. Therefore, it is diffi-
cult to determine whether the conduct in placing the
restaurant employees into the walk-in refrigerators had
independent criminal significance. In other words,
‘‘[g]iven the close temporal proximity to the alleged
kidnapping and [the fact that] any confinement/move-
ment was limited in nature and distance’’; (internal quo-
tation marks omitted); and for the reasons set forth in
Banks v. Commissioner of Correction, supra, 184 Conn.
App. 119, we conclude that this factor weighs in favor
of the petitioner.
We next consider the second Salamon factor, that is,
whether the confinement or movement of the restaurant
employees occurred during the commission of the rob-
beries. Id., 120. The habeas court’s decision suggests,
and the respondent explicitly argues in his appellate
brief, that the robberies in both Manchester and Glas-
tonbury had been completed prior to the petitioner’s
movement of Royer and Smith to the walk-in refrigera-
tor. The respondent’s view is that the movement to and
confinement in the walk-in refrigerator constituted a
separate offense that took place after a completed rob-
bery. In Banks, we specifically rejected this argument,
noting that the crime of robbery may continue after the
taking of property. Id., 122. Accordingly, we disagree
with the habeas court’s conclusion that ‘‘[a]ny restraint
was not inherent in the robbery itself . . . .’’ A properly
instructed jury could have determined that the move-
ment and confinement of Royer and Smith to the walk-
in refrigerators occurred during the continuous
sequence of events relating to the taking of the money.
See id., 128. In other words, these actions of the peti-
tioner constituted part of the course of events of the
robbery, and not a separate criminal offense. See id.,
124–25; see also White v. Commissioner of Correction,
supra, 170 Conn. App. 433–34. We conclude, therefore,
that the second Salamon factor supports the petitioner.
The third Salamon factor, which is whether the
restraint was inherent in the nature of the robbery, also
supports the petitioner. We iterate that the jury would
not have concluded necessarily that the robberies were
completed prior to the movement and confinement of
Royer and Smith. Thus, without a Salamon instruction,
a jury could have found the petitioner guilty of kidnap-
ping even if it concluded that restraint of these two
employees was incidental to the robbery. See Banks v.
Commissioner of Correction, supra, 184 Conn. App.
129; see also State v. Fields, supra, 302 Conn. 252; White
v. Commissioner of Correction, supra, 170 Conn. App.
435–37.10 Accordingly, we conclude that the third Sala-
mon factor weighs in favor of the petitioner.
We note that the remaining Salamon factors provide
the petitioner little, if any, support for his claim that
the absence of a Salamon instruction was not harmless.
See Banks v. Commissioner of Correction, supra, 184
Conn. App. 129. Our reasoning in Banks regarding con-
sideration of all the Salamon factors applies to the
present case. ‘‘[T]he significance of the Salamon factors
that do weigh in favor of the petitioner, namely, the
nature and duration of the movement and confinement
of the employees, whether such confinement occurred
during the commission of the robbery and whether the
restraint was inherent in the nature of the robbery,
outweighs the significance of those that support the
respondent’s claim of harmless error. See White v. Com-
missioner of Correction, supra, 170 Conn. App. 437–38
(certain Salamon factors cut in favor of respondent,
but did not trump significance of others that weighed
in favor of petitioner) . . . .’’ (Citation omitted.) Banks
v. Commissioner of Correction, supra, 130.11
We are cognizant of the respondent’s somewhat Sisy-
phean12 position in cases where the state had obtained a
valid kidnapping conviction years prior to our Supreme
Court’s decisions in State v. Salamon, supra, 287 Conn.
509, Luurtsema v. Commissioner of Correction, supra,
299 Conn. 740, and Hinds v. Commissioner of Correc-
tion, supra, 321 Conn. 56, as well as a growing number
of appellate cases applying and interpreting these prece-
dents, only to later have that conviction overturned.
Nevertheless, given these developments, and the fact
that the petitioner in the present case was entitled to a
Salamon instruction at his criminal trial, the respondent
shoulders the burden to prove that the absence of that
instruction was harmless beyond a reasonable doubt.
After a review of the facts and controlling case law, we
conclude that he has not met this burden because the
question of the petitioner’s intent when moving and
confining Royer and Smith was contested and not sup-
ported by overwhelming evidence.
A properly instructed jury could have had reasonable
doubt as to whether the petitioner moved and confined
Royer and Smith in the walk-in refrigerators in further-
ance of the robberies at the Manchester and Glaston-
bury Friendly’s restaurants on April 12, 2001, and April
14, 2001, respectively. See, e.g., State v. Flores, supra,
301 Conn. 87 (test is not whether jury would return a
guilty verdict if properly instructed, but rather whether
it was reasonably possible that jury, instructed in accor-
dance with Salamon, might find petitioner’s conduct
constituted robbery but did not rise to level of kidnap-
ping). The minimal movement and confinement of the
two employees after the taking of the money from the
safes, coupled with the uncertainty as to whether the
movement and confinement of Royer and Smith in the
walk-in refrigerators was a continuous, uninterrupted
course of conduct related to the robbery or an indepen-
dent criminal act, precludes a conclusion that the
respondent met his burden in the present case. See
Banks v. Commissioner of Correction, supra, 184 Conn.
App. 132 (citing Hinds v. Commissioner of Correction,
supra, 321 Conn. 92–93, and Wilcox v. Commissioner
of Correction, supra, 162 Conn. App. 743). Accordingly,
we cannot conclude that the absence of the Salamon
instruction amounts to harmless error in the present
case. The petitioner is entitled to the reversal of his
kidnapping convictions and a remand for a new trial on
those charges. Banks v. Commissioner of Correction,
supra, 132; see also State v. DeJesus, 288 Conn. 418,
434–39, 953 A.2d 45 (2008).
The judgment of the habeas court is reversed and
the case is remanded with direction to render judgment
granting the petition for a writ of habeas corpus, vacat-
ing the petitioner’s convictions under § 53a-92 (a) (2)
(B) and ordering a new trial on those offenses.
In this opinion SHELDON, J., concurred.
1
Although the operative petition for a writ of habeas corpus contained
three counts alleging various grounds for a new trial, the petitioner argues
only that the habeas court improperly rejected his due process claim regard-
ing the absence of an incidental restraint instruction in accordance with
State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). His other claims are
not at issue in this appeal.
2
In his first habeas action, the petitioner alleged ineffective assistance of
counsel. The habeas court, Fuger, J., denied that petition. We dismissed
the petitioner’s appeal from the judgment of the habeas court in that case.
See Bell v. Commissioner of Correction, 131 Conn. App. 904, 27 A.3d 115,
cert. denied, 302 Conn. 949, 31 A.3d 383 (2011).
3
The petitioner alleged that he had been deprived of due process because
‘‘at the time of his conviction[s], the kidnapping statute was invalid and
unconstitutional.’’ Due to the petitioner’s reliance on State v. Salamon,
supra, 287 Conn. 509, Luurtsema v. Commissioner of Correction, supra,
299 Conn. 740, and State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156
(2008), 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. Sansever-
ino, 291 Conn. 574, 579, 969 A.2d 710 (2009), however, the habeas court
construed his claim as one based on a failure to properly instruct the jury.
On appeal, the petitioner does not argue that the habeas court improperly
construed any of his claims.
4
The respondent did not plead procedural default, but the court granted
without objection an oral motion to amend the return to include a claim of
procedural default. Nonetheless, the habeas court addressed the petitioner’s
due process claim ‘‘on the merits because the respondent failed to properly
raise procedural default in the return.’’ See, e.g., Ankerman v. Commissioner
of Correction, 104 Conn. App. 649, 654–55, 935 A.2d 208 (2007), cert. denied,
285 Conn. 916, 943 A.2d 474 (2008); see also Hinds v. Commissioner of
Correction, supra, 321 Conn. 76 (Salamon claim not subject to proce-
dural default).
5
The petitioner also argues that the habeas court improperly engaged in
a harmless error analysis after it concluded that the trial court should have
given a Salamon instruction. We are unpersuaded by this argument. See,
e.g., Hinds v. Commissioner of Correction, supra, 321 Conn. 77–81 (failure
to charge jury according to Salamon subject to harmless error analysis);
White v. Commissioner of Correction, 170 Conn. App. 415, 427–29, 154 A.3d
1054 (2017) (same); Farmer v. Commissioner of Correction, supra, 165
Conn. App. 465 (same).
6
After oral argument, we stayed the present appeal, sua sponte, until the
final disposition of Epps v. Commissioner of Correction, 153 Conn. App.
729, 104 A.3d 760 (2014), appeal dismissed, 327 Conn. 482, 175 A.3d 558
(2018) (certification improvidently granted). ‘‘Our Supreme Court granted
certification in Epps to determine ‘[w]hether . . . in a collateral proceeding,
where the petitioner claims that the trial court erred by omitting an element
of the criminal charge in its final instructions to the jury, is harm measured
in accordance with Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct.
1710, 123 L. Ed. 2d 353 (1993), or is harm measured in accordance with
Neder v. United States, 527 U.S. 1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35
(1999)?’ ’’ Epps v. Commissioner of Correction, 323 Conn. 901, 150 A.3d
679 (2016).
Under the Brecht standard, reversal of a criminal conviction is warranted
when error at the petitioner’s underlying criminal trial had a ‘‘substantial
and injurious effect or influence in determining the jury’s verdict.’’ (Internal
quotation marks omitted.) Brecht v. Abrahamson, supra, 507 U.S. 637. Under
the Neder standard, a petitioner is not entitled to habeas relief if ‘‘a reviewing
court concludes 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, the erroneous instruction
is properly found to be harmless.’’ Neder v. United States, supra, 527 U.S. 17.
Our Supreme Court dismissed Epps because ‘‘[t]he respondent had
squarely argued to the habeas court that the petition should be assessed
under the harmless beyond a reasonable doubt standard. The respondent
never argued in the alternative that a higher standard of harmfulness should
apply to collateral proceedings even if the petitioner’s claim was not subject
to procedural default, despite federal case law applying a higher standard
since 1993. Epps v. Commissioner of Correction, [327 Conn. 482, 485, 175
A.3d 558 (2018)].’’ (Internal quotation marks omitted.) Banks v. Commis-
sioner of Correction, supra, 184 Conn. App. 113 n.7.
In the present case, the respondent did not argue, either to the habeas
court or to this court, the applicability of the Brecht standard. Accordingly,
we will employ the harmlessness beyond a reasonable doubt standard as
stated in Hinds v. Commissioner of Correction, supra, 321 Conn. 56, and
Luurtsema v. Commissioner of Correction, supra, 299 Conn. 740; see gener-
ally Banks v. Commissioner of Correction, supra, 184 Conn. App. 112–13 n.7.
7
In response to questions during oral argument before this court, the
respondent appeared to posit that a Salamon instruction was not required
under the circumstances. See, e.g., Pereira v. Commissioner of Correction,
176 Conn. App. 762, 778, 171 A.3d 105 (Salamon instruction not required
when restraint forming basis of kidnapping has independent legal signifi-
cance and is otherwise ‘‘sufficiently disconnected’’ from other crime), cert.
denied, 327 Conn. 984, 175 A.3d 43 (2017); State v. Golder, 127 Conn. App.
181, 191, 14 A.3d 399 (Salamon instruction not required where criminal
conduct underlying kidnapping charge completed prior to restraint of vic-
tim), cert. denied, 301 Conn. 912, 19 A.3d 180 (2011). The respondent did
not distinctly raise this argument in his brief. Instead, he argued in his brief
that the lack of a Salamon instruction was ‘‘harmless under any applicable
standard.’’ Accordingly, we decline to consider the argument that a Salamon
instruction was not required in the present case.
8
The dissent argues that the relatively narrow principles set forth in State
v. Salamon, supra, 287 Conn. 509, have undergone a ‘‘steady transmogrifica-
tion’’ and become more expansive. We do not disagree with the substance
of this assessment insofar as our Supreme Court has expanded the principles
of Salamon to apply retroactively in collateral proceedings on judgments
rendered final prior to Salamon. See Wilcox v. Commissioner of Correction,
supra, 162 Conn. 736. More significantly, in Hinds v. Commissioner of
Correction, supra, 321 Conn. 78, our Supreme Court imposed the burden
of demonstrating harmless error on the respondent where the jury should
have received a Salamon instruction but did not. This requires the reviewing
court to conclude ‘‘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.
Our consideration of the petitioner’s appellate claim, therefore, must
include the principles regarding the crime of kidnapping stated in State v.
Salamon, supra, 287 Conn. 509, as viewed through the lens shaped by the
subsequent cases of Hinds v. Commissioner of Correction, supra, 321 Conn.
56, Luurtsema v. Commissioner of Correction, supra, 299 Conn. 740, and
White v. Commissioner of Correction, supra, 170 Conn. App. 415, as well
as others cited in the various opinions released today.
9
According to Royer, the petitioner ordered her to remain in the refrigera-
tor for fifteen minutes. The petitioner’s statement to the police differed
from Royer’s testimony. Specifically, the petitioner indicated that he had
instructed her to ‘‘step in [the refrigerator] for a minute and I’ll come back
and get you when I’m through.’’
In Epps v. Commissioner of Correction, 153 Conn. App. 729, 740–41, 104
A.3d 760 (2014), appeal dismissed, 327 Conn. 482, 175 A.3d 558 (2018)
(certification improvidently granted), we noted that, under the applicable
harmless error analysis, a reviewing court must be satisfied beyond a reason-
able doubt that the omitted element was uncontested and support by over-
whelming evidence. We also explained, in that case, that the allegations
regarding the criminal conduct neither were uncontested nor supported by
overwhelming evidence, in part because the perpetrator disputed the victim’s
testimony of events at the crime scene. Id., 741. As a result, we declined to
weigh the evidence in order to conclude that the missing Salamon instruction
in the case was harmless. Id., 741–42.
10
In conducting this analysis, we do not intend to dismiss or ignore that
the increased fear, if not terror, that Smith and Royer experienced as they
were ordered into the confines of the walk-in refrigerator as commanded
by the petitioner. See Hinds v. Commissioner of Correction, supra, 321
Conn. 80 n.15; State v. Flores, supra, 301 Conn. 88.
11
The dissent accurately and succinctly sets forth the facts of State v.
Salamon, supra, 287 Conn. 514–15, to distinguish the result in that case from
the present case. In response, we note the facts in Hinds v. Commissioner
of Correction, supra, 321 Conn. 56. In that case, the petitioner, Walter Hinds,
wearing only underwear and a sleeveless shirt, followed the sixteen year
old victim as she walked through a parking lot at night. Id., 61–62. Hinds
pursued the fleeing victim, grabbed her, covered her mouth, threatened her,
and threw her to the ground. Id., 62. He then dragged her to a grassy area
between the parking lot and a small house, where it was darker, and sexually
assaulted her.
In concluding that the absence of a Salamon instruction was not harmless,
our Supreme Court noted that that conduct in Hinds was a continuous,
uninterrupted course of conduct that lasted only minutes. Id., 80. Addition-
ally, it observed that ‘‘when the evidence regarding the perpetrator’s intent
is susceptible to more than one interpretation, that question is one for the
jury.’’ Id., 79. The court set forth various plausible explanations for Hinds’
intent in moving the victim to the dark, grassy area. Id., 80. It then concluded
that ‘‘[t]he close alignment in time and place of [the victim’s] restraint
and abduction to the sexual assault calls into serious question whether
reasonable jurors would conclude that [Hinds] intended to restrain [the
victim] for any purpose other than the commission of the sexual assault.’’
Id., 93–94.
We do note, however, that Hinds could have sexually assaulted the victim
at the specific location that he restrained the victim and threw her to the
ground. Id., 62. He instead moved the victim to a different location. In other
words, although it did not appear necessary for this asportation, our Supreme
Court nevertheless concluded that the absence of the Salamon instruction
was not harmless beyond a reasonable doubt.
12
‘‘Sisyphus, the mythical King of Corinth who was sentenced by Zeus to
an eternity in Hades trying to roll a rock uphill which forever rolled back
upon him.’’ (Internal quotation marks omitted.) Huch v. United States, 439
U.S. 1007, 1012, 99 S. Ct. 622, 58 L. Ed. 2d 684 (1978) (Rehnquist, J., dis-
senting).