Opinion
AC 38401
08-07-2018
Leon BELL v. COMMISSIONER OF CORRECTION
David B. Rozwaski, assigned counsel, for the appellant (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).
David B. Rozwaski, assigned counsel, for the appellant (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).
DiPentima, C.J., and Lavine and Sheldon, Js.
DiPENTIMA, C.J.
The petitioner, Leon Bell, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. The habeas court denied the petition after concluding that, although the petitioner was entitled to a jury instruction in accordance with the seminal case of State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), that failure was harmless 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 Correction , 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., at 132, ––– A.3d ––––. Our analysis and conclusion in Banks controls the resolution 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 kidnapping charges.
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 regarding 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.
The following facts and procedural history are relevant. 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 Statutes § 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, 891 A.2d 9, cert. denied, 277 Conn. 933, 896 A.2d 101 (2006). Following the petitioner'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 Glastonbury on April 14, 2001, during which the petitioner instructed the respective victims, employees of Friendly's, to enter walk-in refrigerators after ordering them to open the restaurants' safes. See id., at 652–53, 891 A.2d 9. The state charged the petitioner in two separate long form informations, which the court consolidated for trial; see id., at 654, 891 A.2d 9 ; each information alleged one count each of robbery in the first degree, burglary in the third degree, kidnapping 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, the law fundamentally changed with regard to kidnapping offenses when our Supreme Court decided State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, and Luurtsema v. Commissioner of Correction , 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] commission of some other crime or crimes." Wilcox v. Commissioner of Correction , 162 Conn. App. 730, 736, 129 A.3d 796 (2016) ; see also Hinds v. Commissioner of Correction , supra, at 69, 136 A.3d 596 (as matter of state common law, policy considerations weighed in favor of retroactive application of Salamon to collateral attacks on judgments rendered final prior to release of Salamon decision).
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).
The petitioner, self-represented at the time, commenced a second habeas action on June 8, 2012, which he later amended after being appointed counsel (operative 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 . The respondent filed a return on January 23, 2015, denying the material allegations 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 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. at 509, 949 A.2d 1092, Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817, 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. Sanseverino , 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.
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, 949 A.2d 1092], 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. 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 omitted 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 uncontested evidence of nonincidental restraint of the two victims." More specifically, it concluded that ordering both victims of the Manchester and Glastonbury robberies 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 .
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. at 76, 136 A.3d 596 (Salamon claim not subject to procedural default).
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 followed. 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 quotation marks omitted.) Hinds v. Commissioner of Correction , supra, 321 Conn. at 65, 136 A.3d 596. "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, at 60, 65, 136 A.3d 596 ; 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 improperly 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.
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. at 77–81, 136 A.3d 596 (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. at 465, 139 A.3d 767 (same).
In response, the respondent argues that the failure to give a Salamon instruction was "harmless under any applicable standard." According to the respondent, the robberies occurred before the petitioner forced both victims into the walk-in refrigerators. 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 refrigerators had independent legal significance, and "establish[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."
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. at 637, 113 S.Ct. 1710. 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. at 17, 119 S.Ct. 1827.
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. Commissioner of Correction , supra, 184 Conn. App. at 113 n.7, ––– A.3d ––––.
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. at 56, 136 A.3d 596, and Luurtsema v. Commissioner of Correction , supra, 299 Conn. 740, 12 A.3d 817 ; see generally Banks v. Commissioner of Correction , supra, 184 Conn. App. at 112–13 n.7, ––– A.3d ––––.
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 significance 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 victim), 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.
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. at 103, ––– A.3d ––––; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 91, 136 A.3d 596. 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, at 103, ––– A.3d ––––. Instead, the respondent bears the "arduous burden of demonstrating that the omission of an instruction on incidental restraint did not contribute to the verdict." Id. We conclude that this burden has not been met, and, therefore, we reverse the judgment of the habeas court. We recite, in some detail, the underlying facts surrounding the Manchester and Glastonbury robberies, which the jury reasonably could have found, as part of our analysis. See Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 814–15, 149 A.3d 983 ; see also State v. Bell , supra, 93 Conn. App. at 652–54, 891 A.2d 9. At approximately 1 a.m. on April 12, 2001, Cheryl Royer was the last employee to leave the Friendly's restaurant in Manchester. 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 approximately "[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 manager's office, and, after the petitioner finished looting the safe, he ordered Royer to proceed into the refrigerator. Once she entered the refrigerator, and after the refrigerator door shut behind her, the petitioner told her "to stay in there for fifteen minutes." 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.
The dissent argues that the relatively narrow principles set forth in State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, have undergone a "steady transmogrification" 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. at 736, 129 A.3d 796. More significantly, in Hinds v. Commissioner of Correction , supra, 321 Conn. at 78, 136 A.3d 596, 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., at 77–78, 136 A.3d 596.
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. at 509, 949 A.2d 1092, as viewed through the lens shaped by the subsequent cases of Hinds v. Commissioner of Correction , supra, 321 Conn. at 56, 136 A.3d 596, Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817, and White v. Commissioner of Correction , supra, 170 Conn. App. at 415, 154 A.3d 1054, as well as others cited in the various opinions released today.
According to Royer, the petitioner ordered her to remain in the refrigerator 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 reasonable doubt that the omitted element was uncontested and support by overwhelming 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., at 741, 104 A.3d 760. As a result, we declined to weigh the evidence in order to conclude that the missing Salamon instruction in the case was harmless. Id., at 741–42, 104 A.3d 760.
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 petitioner 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 petitioner 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 harmless error. It is undisputed that the trial court did not provide an incidental restraint instruction in accordance 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 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 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 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." (Citation omitted; internal quotation marks omitted.) Hinds v. Commissioner of Correction , supra, 321 Conn. at 77–78, 136 A.3d 596 ; see also Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 770, 12 A.3d 817 ; White v. Commissioner of Correction , 170 Conn. App. 415, 427–28, 154 A.3d 1054 (2017) ; Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 812–13, 149 A.3d 983 ; 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 omitted element was uncontested and supported by overwhelming 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. at 91, 136 A.3d 596 ; see id., at 78, 17 A.3d 1025. Similarly, the appropriate test is not whether a properly instructed jury likely would have found the petitioner guilty of kidnapping. Id., at 85, 17 A.3d 1025 ; see also State v. Flores , supra, 301 Conn. at 87, 17 A.3d 1025.
"To answer the question of whether the absence of the Salamon standard constituted harmless error requires us to examine the factors and principles enunciated in that case.... [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.... 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 during the commission of the separate offense, [3] whether the restraint was inherent in the nature of the separate offense, [4] whether the restraint prevented the victim from summoning assistance, [5] whether the restraint reduced the defendant's risk of detection and [6] whether the restraint created a 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. at 114–15, ––– A.3d ––––; see also State v. Flores , supra, 301 Conn. at 84–85, 17 A.3d 1025.
At this point, a discussion of Banks v. Commissioner of Correction , supra, 184 Conn. App. at 101, ––– A.3d ––––, 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., at 104, ––– A.3d ––––. His convictions stemmed from the events at two Bedding Barn stores in Newington and Southington. Id., at 105–106, ––– A.3d ––––. On August 30, 1995, Banks, posing as a customer, entered the Newington store shortly before closing time. Id., at 105, ––– A.3d ––––. After briefly speaking 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., at 105–106, ––– A.3d ––––. 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 thereafter, 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., at 106 n.5, ––– A.3d ––––. "The habeas court concluded that the respondent demonstrated that the absence of a Salamon instruction at [Banks'] criminal trial constituted harmless 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., at 107–108, ––– A.3d ––––.
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., at 104, ––– A.3d ––––. 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 therefore, was not a kidnapping. Because [Banks] was deprived of the opportunity of having the jurors consider this issue, which was susceptible to more than one interpretation, the respondent did not prove the error was harmless beyond a reasonable doubt." (Internal quotation marks omitted.) Id., at 114, ––– A.3d ––––. Ultimately, we agreed with Banks and reversed the judgment of the habeas court. Id., at 132, ––– A.3d ––––.
In both Banks v. Commissioner of Correction , supra, 184 Conn. App. at 101, ––– A.3d ––––, and White v. Commissioner of Correction , supra, 170 Conn. App. at 430–32, 154 A.3d 1054, we began our analysis with the first Salamon factor, that is, the nature and duration of the victims' movement or confinement by the perpetrator. Specifically, we observed: "[I]n Hinds v. Commissioner of Correction , supra, 321 Conn. at 92–93, 136 A.3d 596, our Supreme Court attempted to categorize 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 committing sexual assault and attempted murder); State v. Jordan , [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 instruction harmless—when the offenses are separated by greater time spans, or by more movement or restriction 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 difficulty in determining whether each crime has independent 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. at 89, 17 A.3d 1025] (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 incidental 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. [at] 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. at 116–18, ––– A.3d ––––.
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 leaving 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 refrigerator, 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 restaurant. Intimating that he possessed a gun, the petitioner 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 criminal conduct occurred at a single location, and the robbery and confinement were not separated by a significant time period or distance. Therefore, it is difficult 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/movement was limited in nature and distance"; (internal quotation marks omitted); and for the reasons set forth in Banks v. Commissioner of Correction , supra, 184 Conn. App. at 119, ––– A.3d ––––, 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 robberies. Id., at 120, ––– A.3d ––––. The habeas court's decision suggests, and the respondent explicitly argues in his appellate brief, that the robberies in both Manchester and Glastonbury had been completed prior to the petitioner's movement of Royer and Smith to the walk-in refrigerator. 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 robbery. In Banks , we specifically rejected this argument, noting that the crime of robbery may continue after the taking of property. Id., at 122, ––– A.3d ––––. 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 movement 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., at 128, ––– A.3d ––––. In other words, these actions of the petitioner constituted part of the course of events of the robbery, and not a separate criminal offense. See id., at 124–25, ––– A.3d –––– ; see also White v. Commissioner of Correction , supra, 170 Conn. App. at 433–34, 154 A.3d 1054. 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 kidnapping 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. at 129, ––– A.3d ––––; see also State v. Fields , supra, 302 Conn. at 252, 24 A.3d 1243 ; White v. Commissioner of Correction , supra, 170 Conn. App. at 435–37, 154 A.3d 1054. Accordingly, we conclude that the third Salamon factor weighs in favor of the petitioner.
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. at 80 n.15, 136 A.3d 596 ; State v. Flores , supra, 301 Conn. at 88, 17 A.3d 1025.
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. at 129, ––– A.3d ––––. Our reasoning in Banks regarding consideration 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. Commissioner of Correction , supra, 170 Conn. App. at 437–38, 154 A.3d 1054 (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, at 130, ––– A.3d ––––. We are cognizant of the respondent's somewhat Sisyphean 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. at 509, 949 A.2d 1092, Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817, and Hinds v. Commissioner of Correction , supra, 321 Conn. at 56, 136 A.3d 596, as well as a growing number of appellate cases applying and interpreting these precedents, 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 supported by overwhelming evidence.
The dissent accurately and succinctly sets forth the facts of State v. Salamon , supra, 287 Conn. at 514–15, 949 A.2d 1092, 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. at 56, 136 A.3d 596. 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., at 61–62, 136 A.3d 596. Hinds pursued the fleeing victim, grabbed her, covered her mouth, threatened her, and threw her to the ground. Id., at 62, 136 A.3d 596. 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., at 80, 136 A.3d 596. Additionally, 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., at 79, 136 A.3d 596. The court set forth various plausible explanations for Hinds' intent in moving the victim to the dark, grassy area. Id., at 80, 136 A.3d 596. 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., at 93–94, 136 A.3d 596.
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., at 62, 136 A.3d 596. 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.
"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., dissenting).
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 furtherance of the robberies at the Manchester and Glastonbury Friendly's restaurants on April 12, 2001, and April 14, 2001, respectively. See, e.g., State v. Flores , supra, 301 Conn. at 87, 17 A.3d 1025 (test is not whether jury would return a guilty verdict if properly instructed, but rather whether it was reasonably possible that jury, instructed in accordance with Salamon , might find petitioner's conduct constituted robbery but did not rise to level of kidnapping). 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 independent 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. at 132, ––– A.3d –––– (citing Hinds v. Commissioner of Correction , supra, 321 Conn. at 92–93, 136 A.3d 596, and Wilcox v. Commissioner of Correction , supra, 162 Conn. App. at 743, 129 A.3d 796 ). 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, at 132, ––– A.3d –––– ; 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, vacating the petitioner's convictions under § 53a-92 (a) (2) (B) and ordering a new trial on those offenses.
In this opinion SHELDON, J., concurred.
Despite its thoughtful and well reasoned analysis, I disagree with the majority's conclusion that the respondent, the Commissioner of Correction, failed to prove that the absence of jury instructions in accordance with State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), was harmless error in the present case and, therefore, respectfully dissent.
My conclusion is informed by what I believe to be the steady transmogrification of the relatively narrow principles announced in Salamon , into something more expansive, as exemplified by the present case, Banks v. Commissioner of Correction , 184 Conn. App. 101, ––– A.3d –––– (2018), which this court also releases today, and others. Consequently, the seriousness of the conduct involving the normal incidents of what is typically thought of as kidnapping, and its devastating impact on victims, is being minimized because conduct that merely facilitates another crime—rather than that which is necessary to its completion—is being viewed as a continuation of the conduct associated with the other substantive offense. As will be discussed, I also believe that an analysis of the nonexhaustive six factors enunciated in Salamon supports affirmance of the habeas court's judgment.
Salamon provided a necessary corrective to the all too familiar scenario in which the state overcharged defendants by appending a kidnapping charge onto an assault, frequently a sexual assault. As the majority opinion in Salamon stated: "Unfortunately [the previous interpretation of the kidnapping law] has afforded prosecutors virtually unbridled discretion to charge the same conduct either as a kidnapping or as an unlawful restraint despite the significant differences in the penalties that attach to those offenses. Similarly, our prior construction of the kidnapping statutes has permitted prosecutors—indeed, it has encouraged them—to include a kidnapping charge in any case involving a sexual assault or robbery. In view of the trend favoring reform of the law of kidnapping that existed at the time that our statutes were enacted, and in light of the stated goal of the [Commission to Revise the Criminal Statutes] of creating a modern, informed and enlightened penal code, it is highly likely that our legislature intended to embrace ... reform, thereby reducing the potential for unfairness that had been created under this state's prior kidnapping statutes." State v. Salamon , supra, 287 Conn. at 543–44, 949 A.2d 1092.
The change brought about by Salamon was necessary and appropriate. Permitting kidnapping to be charged in many of these cases ignored the real core of the criminal conduct involved—assaultive behavior—and gave prosecutors a cudgel with which to thrash defendants, who were charged with two serious crimes, when only one had in essence been committed. This unreasonably lengthened a defendant's exposure and provided prosecutors with enormous leverage.
But like moss climbing up a tree, Salamon 's reach has crept steadily and now applies to situations beyond what I believe was originally contemplated by the case. A quick comparison of Salamon itself, and the instant case, puts my view into context.
For a comprehensive review of post-Salamon cases, see Nogueira v. Commissioner of Correction , 168 Conn. App. 803, 149 A.3d 983, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016).
In Salamon , the defendant followed the victim up a flight of stairs. The victim fell and the defendant held her down by her hair. The defendant punched the victim in the mouth and attempted to thrust his fingers down her throat as she was screaming. The victim escaped and the defendant was arrested. Id., at 515, 949 A.2d 1092.
In its review of the law of kidnapping in Connecticut, the court noted that "[a]mong the evils that both the common law and later statutory prohibitions against kidnapping sought to address were the isolation of a victim from the protections of society and the law and the special fear and danger inherent in such isolation." Id., at 536, 949 A.2d 1092. Severe sanctions for "relatively trivial types of restraint"; id., at 538, 949 A.2d 1092 ; were to be avoided, the court continued. The remedy proposed by the court in Salamon was as follows: "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 accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." (Emphasis added.) Id., at 542, 949 A.2d 1092. It is noteworthy that the court used the word necessary , meaning required or essential; it did not refer to conduct which simply facilitates or makes easier the commission of the underlying crime.
Unfortunately, the cases are morphing from the easy task of concluding that holding down someone by their hair is incidental to the ongoing assault, to attempting to determine the defendant's often opaque and inchoate intent on the basis of his or her actions. Here, the conduct at issue involved petrifying innocent victims by pointing what appeared to be a gun at them, herding them into a refrigerator, telling them not to leave, closing them in—thereby isolating them from the outside world—and preventing them from communicating with someone to get help. All the while, and for every second, the victims were undoubtedly terrified and probably afraid they were about to die. As the law in this area has developed, subsequent cases have minimized or overlooked the merely incidental to and necessity requirements of Salamon and have watered it down to apply to conduct that is not really merely incidental to or necessary to commit the underlying crime, but simply facilitates or makes completion of the underlying crime easier or more convenient. In other words, the necessity requirement is being eviscerated. This case provides a good illustration of this morphing.
It is true that judges and juries are often tasked with the difficult job of evaluating an actor's intent, but often, the intent involved is the intent to do a particular act. For example, a trier of fact may be asked to determine if someone intended to inflict "physical injury" or "serious physical injury" on another person. That, however, is far different than the amorphous task of determining how much time a defendant believes is necessary to commit a crime. Determining how much time is necessary to commit a crime—or what degree of force, coercion, or restraint is needed—in the eyes of an often violent criminal is an inherently impracticable, sometimes impossible, task. Suppose that the petitioner in this case, Leon Bell, believed, in good faith, that keeping someone locked up in a refrigerator is necessary , so he can escape to a hideout in northern California. Does this conduct meet the necessity test? Or to posit a closer case, suppose a defendant believes it is necessary to confine a victim until he reaches a nearby getaway car, but not until he gets on the highway 500 yards away? Can jurors really be expected to evaluate these sorts of matters in a meaningful, consistent, coherent way? Once the defendant has finished emptying a safe, or a victim's pockets, how can a jury be expected to determine what is in the defendant's mind in any rational, predictable manner as it relates to how much time is required to complete a crime or escape? The likely result of this trend is to permit gratuitous harm to be inflicted on victims of robberies, and encourage a mishmash of verdicts with no principled core.
In summary, I believe the necessary correction accomplished by Salamon is losing its moorings and is being extended too far. I believe the necessity requirement should be resuscitated and Salamon 's application should be restricted in some appropriate way only to cases in which the restraint is truly part and parcel of the underlying crime.
Even if my view is rejected, I would still affirm the judgment of the habeas court in the present case pursuant to the nonexhaustive six factors set out in Salamon . See, e.g., White v. Commissioner of Correction , 170 Conn. App. 415, 430–39, 154 A.3d 1054 (2017). I agree with both the majority's recitation of the facts for each robbery in the present case and its narration of the law governing the respondent's heavy burden in the context of this collateral proceeding. For the reasons that follow, however, I respectfully part ways with the majority regarding the assessment of the Salamon factors. I address each robbery in turn.
The respondent's burden of proving that the absence of Salamon instructions, beyond a reasonable doubt, did not contribute to the verdict obtained; see, e.g., Hinds v. Commissioner of Correction , 321 Conn. 56, 77–78, 136 A.3d 596 (2016) (absence of Salamon instruction is 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" [internal quotation marks omitted] ); is akin to the respondent demonstrating entitlement to a directed verdict on the same facts. See, e.g., State v. Fields , 302 Conn. 236, 253 n.17, 24 A.3d 1243 (2011) (properly instructed jury reasonably could conclude "that the defendant's restraint of [the victim] lasted for a period of time that was longer than necessary for the commission of the assault, [but] the state has failed to establish that the jury reasonably could not have reached a contrary conclusion" [emphasis in original] ); State v. Flores , 301 Conn. 77, 87, 17 A.3d 1025 (2011) ("the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result"); Nogueira v. Commissioner of Correction , 168 Conn. App. 803, 845, 149 A.3d 983 ("[u]nder the facts and circumstances of this case, we conclude that a reasonable fact finder, under the proper interpretation of our kidnapping law, could not find that the restraint of the victim was merely incidental to or an inherent part of the sexual assault crimes" [emphasis added] ), cert. denied, 323 Conn. 949, 169 A.3d 792 (2016) ; see also Bagley v. Adel Wiggins Group , 327 Conn. 89, 102, 171 A.3d 432 (2017) ("[a] trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion" [internal quotation marks omitted] ).
In the robbery of the Friendly's restaurant in Manchester, with regard to the first Salamon factor, it was uncontested at trial that the petitioner ordered an employee, Cheryl Royer, into the walk-in refrigerator after she opened the safe. It was also uncontested that he ordered her to remain there for an indeterminate period of time. Although the duration of Royer's confinement for, at most, a few minutes was relatively minor; see, e.g., State v. Hampton , 293 Conn. 435, 463–64, 988 A.2d 167 (2009) (victim driven around more than three hours prior to assault and attempted murder); Eric M . v. Commissioner of Correction , 153 Conn. App. 837, 846, 108 A.3d 1128 (2014) (victim restrained, gagged, and handcuffed for at least five hours), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015) ; State v. Nelson , 118 Conn. App. 831, 861, 986 A.2d 311 (victim restrained for several hours and was driven to several locations after assault), cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010) ; the nature of her confinement was qualitatively different when compared with other cases. The petitioner isolated Royer in an enclosed space that was shielded from public view, the location of which was entirely separate from the safe in the manager's office. In other words, the situs and isolating nature of Royer's confinement is a significant feature of the Manchester robbery.
The majority highlights the conflicting evidence between Royer's testimony and the petitioner's statement to police regarding how long the petitioner instructed Royer to remain inside the refrigerator. See footnote 9 of the majority opinion. I acknowledge this conflict and agree with the majority's reading of this court's decision in 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).
Under the specific facts of both robberies in the present case, however, I disagree that any such conflict between the evidence introduced at trial, along with the limited distance of the movement of either Royer or Tricia Smith, an employee at the other Friendly's restaurant in Glastonbury that was robbed, is dispositive with respect to the respondent's burden. The very nature of the confinement—a key consideration under the first Salamon factor—suffered by both Royer and Smith at the petitioner's hands is qualitatively different than in any Connecticut case that I am aware of, besides the opinion which this court also releases today. See Banks v. Commissioner of Correction , supra, 184 Conn. App. at 101, ––– A.3d ––––. How long the petitioner instructed Royer or Smith to remain inside the respective refrigerators arguably does bear on his intent to restrain them for a period of time exceeding that which was necessary to commit the respective robberies. Additionally, the time that either victim remained inside the refrigerators—i.e., the duration of their confinement—is also a relevant consideration. And so is the distance between the refrigerators and the safes. Nonetheless, I believe the very nature of the confinement in both robberies outweighs such considerations. In other words, the nature of the confinement is central to this court's analysis and is different from any Connecticut appellate case that I am aware of dealing with the issue presently before this court.
I acknowledge that, on the one hand, relatively short durations of restraint over limited distances can make it difficult to conclude, as a matter of law, that an alleged kidnapping was not incidental to another crime. See, e.g., White v. Commissioner of Correction , supra, 170 Conn. App. at 432–33, 154 A.3d 1054. But on the other hand, a kidnapping conviction does not require any minimum or fixed period of confinement or degree of movement. See State v. Salamon , supra, 287 Conn. at 546, 949 A.2d 1092. Confinement for one minute can be as terrifying as confinement for hours, depending on the circumstances. The petitioner isolated Royer in a separate space within Friendly's that was secreted from public view and where she was certain not to be seen or found. He ordered her to remain there for either fifteen minutes or until he came back to get her. He also left her in the refrigerator after he fled the restaurant. In effect, Royer's isolation amounted to a "second level of restraint ...." Nogueira v. Commissioner of Correction , 168 Conn. App. 803, 842, 149 A.3d 983 (asportation of victim to window well, "essentially a deep hole," limited victim's escape routes), cert. denied, 323 Conn. 949, 169 A.3d 792 (2016) ; see also State v. Salamon , supra, at 536, 949 A.2d 1092 ("[a]mong the evils that both the common law and later statutory prohibitions against kidnapping sought to address were the isolation of a victim from the protections of society and the law and the special fear and danger inherent in such isolation " [emphasis added] ). Such conduct is overwhelming evidence of the petitioner's intent to restrain Royer to a greater degree and for a longer period of time than was necessary to accomplish the robbery. See State v. Winot , 294 Conn. 753, 768, 988 A.2d 188 (2010) (intent may be inferred from circumstances and "[a]n accused's own words ... constitute particularly compelling, direct evidence of his intent").
With regard to the second Salamon factor, the respondent argues that Royer's confinement helped to facilitate the petitioner's escape and that he already had completed the robbery before ordering Royer into the refrigerator. The petitioner argues that the confinement of Royer was part of the ongoing robbery and therefore was not a separate, distinct act.
When the circumstances could be viewed as being part of "a continuous, uninterrupted course of conduct"; Hinds v. Commissioner of Correction , 321 Conn. 56, 79, 136 A.3d 596 (2016) ; I recognize that this tends to weigh in favor of having a jury decide whether the accused possessed the requisite level of intent to be found guilty of a kidnapping under Salamon . See, e.g., id. ; White v. Commissioner of Correction , supra, 170 Conn. App. at 433–35, 154 A.3d 1054. Nevertheless, Salamon makes clear that "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.) State v. Salamon , supra, 287 Conn. at 547, 949 A.2d 1092. "[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 ...." (Emphasis added; internal quotation marks omitted.) Id., at 546, 949 A.2d 1092.
Even if the jury, in accordance with Salamon , had been instructed to consider whether the confinement of Royer occurred during the commission of the robbery, the verdict would have been the same because such confinement had independent legal significance. See, e.g., 51 C.J.S. 319, Kidnapping § 26 (2010) ("in the case of robbery, where the confinement of a victim is greater than that which is inherently necessary to rob them, the confinement while part of the robbery is also a separate criminal transgression"). The petitioner could have taken the money from the safe after Royer opened it. Instead, he compelled her to enter the refrigerator, an entirely separate and enclosed space, after she opened the safe, and left her there when he fled. At most, her confinement made the robbery easier to commit. See, e.g., State v. Ward , 306 Conn. 718, 739–41, 51 A.3d 970 (2012) (suggesting that confinement or movement not merely incidental when it makes underlying crime easier to commit). And on appeal, both parties agree that the petitioner left Royer in the refrigerator to help him escape. See, e.g., State v. Crenshaw , 313 Conn. 69, 84–85 n.9, 95 A.3d 1113 (2014) (kidnapping continues until liberty restored). The state even argued this same theory to the jury. Ordering Royer into the refrigerator and telling her to stay there, therefore, was neither incidental to nor necessary for the robbery.
During closing arguments before the jury, the prosecutor argued that the petitioner placed Royer in the refrigerator to facilitate his escape. The prosecutor stated in relevant part: "Cheryl Royer told you her intent was not to go back into that restaurant that night. It was certainly not to go into a walk-in freezer.... She was met by someone who threatened her, threatened her with the use of force, ordered her back inside, and then continued to restrain her by forcing her to go into the refrigerator. And the intent in doing that, to me, clearly inferred this was to enable him to escape, to delay her, to keep her in the refrigerator until he could get away from the restaurant and be less likely to be caught ." (Emphasis added.)
Similarly, with regard to the third Salamon factor, the petitioner's restraint of Royer by isolating her in the refrigerator was not the type of restraint inherent in the nature of a robbery. Some degree or type of restraint, though technically not an element of a robbery, is almost always necessary to rob someone. See General Statutes §§ 53a-91 (1) and 53a-133 ; see also State v. Fields , 302 Conn. 236, 247–48, 24 A.3d 1243 (2011). But I agree with the habeas court that the petitioner's confining of Royer in the refrigerator was not necessary to rob the Friendly's in Manchester. See, e.g., State v. Jordan , 129 Conn. App. 215, 223, 19 A.3d 241 (absence of Salamon instruction was harmless where defendant "controlled [the victims'] movement and prevented them from leaving" while he was not assaulting them and, therefore, actions were not merely incidental to assaults and sexual assault), cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011). Therefore, the specific restraint at issue here—confining Royer inside the refrigerator—is compelling evidence that the petitioner intended to restrain her for a period of time exceeding that which was necessary to commit the robbery.
The majority concludes that the third Salamon factor supports the petitioner. See Bell v. Commissioner of Correction , 184 Conn. App. 150, 170, 194 A.3d 809 (2018). I respectfully disagree and believe the majority's assessment of this factor illustrates how Salamon is slowly breaking free of its moorings. Salamon instructs that "[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 ...." (Emphasis added; internal quotation marks omitted.) State v. Salamon , supra, 287 Conn. at 546, 949 A.2d 1092. Simply put, the question is whether the confinement or movement was part and parcel of the other substantive offense. From this vantage point, I do not believe that a reasonable juror could conclude that the confinement in refrigerators of Royer and Tricia Smith, an employee at the other Friendly's restaurant in Glastonbury that was robbed, was part and parcel of either robbery, such that they could not have been committed without such confinement.
Royer was also the only individual in the restaurant after closing at 1 a.m. Significantly, Royer's isolation in a separate and enclosed refrigerator prevented her from discerning what was happening, or summoning assistance, and reduced the petitioner's risk of detection. See State v. Ward , supra, 306 Conn. at 736–38, 51 A.3d 970. And although the petitioner places great emphasis on the fact that Royer "[was] not locked in the [refrigerator] nor unable [to] seek help," this argument is unpersuasive with regard to the fourth and fifth Salamon factors. The petitioner explicitly stated to Royer that he had a gun and ordered her to remain inside the refrigerator. No reasonable juror, under those circumstances, could conclude that such restraint did not prevent Royer from summoning assistance or did not reduce the petitioner's risk of detection. Accordingly, the omitted element regarding the petitioner's intent to prevent Royer's liberation for a longer period of time or to a greater degree than was necessary to commit the Manchester robbery "was uncontested 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. at 77–78, 136 A.3d 596.
Because the undisputed evidence at trial demonstrated that there was not a risk of the refrigerator door locking behind Royer, the habeas court concluded that placing Royer in the refrigerator did not create a significant danger or increase her risk of harm independent of that posed by the robbery. To the extent that this factor slightly weighs in favor of the petitioner, it is clearly outweighed by the remaining factors that demonstrate the petitioner's intent to prevent Royer's liberation for a longer period of time or to a greater degree than was necessary to commit the Manchester robbery. See, e.g., White v. Commissioner of Correction , supra, 170 Conn. App. at 438, 154 A.3d 1054.
The facts and circumstances surrounding the Glastonbury robbery largely mirror those of the Manchester robbery, with one noteworthy difference. On April 14, 2001, the petitioner ordered Tricia Smith, the only Friendly's employee at the Glastonbury location at 6 a.m., to open the restaurant's safe and to then enter the walk-in refrigerator for an indefinite period of time. The undisputed evidence at trial further demonstrated that the petitioner took the money from the safe and left Smith inside the refrigerator when he fled. Both parties agree that this conduct facilitated his escape. Unlike the Manchester robbery, however, Smith testified that she heard the petitioner say something that she could not make out approximately two minutes after the petitioner ordered her to enter the refrigerator. The record does not provide any elucidation as to what the petitioner said, or if it was directed at Smith.
Notwithstanding this latter distinction, I believe that the record contains overwhelming and undisputed evidence that the petitioner intended to prevent Smith's liberation for a longer period of time or to a greater degree than was necessary to commit the Glastonbury robbery. I view this as a somewhat closer call than the Manchester robbery, but conclude nonetheless that the failure to provide an incidental restraint instruction in accordance with Salamon was harmless. See id.
Much like the Manchester robbery, the nature and situs of Smith's confinement is a key feature of the Glastonbury robbery when assessing the Salamon factors. With regard to the first and second Salamon factors, the petitioner's confinement of Smith essentially amounted to a "second level of restraint"; Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 842, 149 A.3d 983 ; that restricted her movement to an extent exceeding that which was necessary to remove the money from the open safe. See State v. Salamon , supra, 287 Conn. at 547, 949 A.2d 1092. Although it was undisputed at trial that Smith's confinement was also for a relatively short period of time, it had independent legal significance. The petitioner left Smith inside the refrigerator after taking the money from the safe, and Smith did not exit the refrigerator until a few minutes after the petitioner left the restaurant. See, e.g., State v. Crenshaw , supra, 313 Conn. at 84–85 n.9, 95 A.3d 1113. Again, at most, confining Smith inside the refrigerator made the robbery easier to commit, but was by no means "necessary." See, e.g., State v. Ward , supra, 306 Conn. at 739–41, 51 A.3d 970.
With regard to the third Salamon factor, Smith's confinement was not so much a part of the robbery that the offense could not have been completed without it. State v. Salamon , supra, 287 Conn. at 546, 949 A.2d 1092. The petitioner could have taken the money from the safe immediately after Smith opened it. Instead, he secreted Smith inside a refrigerator outside of public view and effectively controlled her movements for an indeterminate period of time. See, e.g., State v. Jordan , supra, 129 Conn. App. at 223, 19 A.3d 241. And with regard to the fourth and fifth Salamon factors, Smith's isolation prevented her from summoning assistance, reduced the petitioner's risk of detection, made it impossible for her to see or be seen by a third party, and undoubtedly was terrifying to her. Regardless of what the petitioner might have said while Smith was inside the refrigerator, no reasonable juror could conclude that confining Smith inside the refrigerator was merely incidental to and necessary for the Glastonbury robbery. Simply put, the confinement of Smith in the refrigerator had independent criminal significance. See Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 843, 149 A.3d 983.
Much like the evidence in the Manchester robbery, the evidence at trial did not demonstrate that Smith's confinement in the refrigerator created a significant danger or increased her risk of harm independent of that posed by the robbery. To the extent that the sixth Salamon factor weighs slightly in favor of the petitioner, it is clearly outweighed by the other Salamon factors.
--------
Considering all the facts and circumstances, I conclude that no reasonable fact finder, even if properly instructed in accordance with Salamon , could find that 187 the restraint of Royer and Smith was merely incidental to or a necessary part of either robbery. The uncontested and overwhelming evidence before the jury demonstrated that the petitioner intended to prevent the victims' liberation for a longer period of time or to a greater degree than was necessary to commit the robberies. See Hinds v. Commissioner of Correction , supra, 321 Conn. at 77–78, 136 A.3d 596. Accordingly, the habeas court properly concluded that the absence of a Salamon instruction was harmless and, therefore, correctly denied the petitioner's second petition for a writ of habeas corpus. I therefore respectfully dissent.