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holding failure to give Salamon instruction harmful when petitioner's actions were "a continuous, uninterrupted course of conduct"
Summary of this case from White v. Comm'r of Corr.Opinion
No. 19393 No. 19394.
04-26-2016
Walter HINDS v. COMMISSIONER OF CORRECTION.
Jo Anne Sulik, supervisory assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Erika L. Brookman, assistant state's attorney, and Mary M. Galvin, former state's attorney, for the appellant in Docket No. SC 19393 and appellee in Docket No. SC 19394 (respondent). Adele V. Patterson, senior assistant public defender, for the appellee in Docket No. SC 19393 and appellant in Docket No. SC 19394 (petitioner).
Jo Anne Sulik, supervisory assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, Erika L. Brookman, assistant state's attorney, and Mary M. Galvin, former state's attorney, for the appellant in Docket No. SC 19393 and appellee in Docket No. SC 19394 (respondent).
Adele V. Patterson, senior assistant public defender, for the appellee in Docket No. SC 19393 and appellant in Docket No. SC 19394 (petitioner).
ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ROBINSON and DiPENTIMA, Js.
This appeal originally was argued before a panel of this court consisting of Chief Justice Rogers, and Justices Palmer, Zarella, Eveleigh, McDonald and Robinson. Thereafter, Chief Judge DiPentima was added to the panel and she has read the briefs and listened to a recording of the oral argument prior to participating in this decision.
Opinion
McDONALD, J. In 2002, the petitioner, Walter Hinds, was convicted of sexual assault in the first degree in violation of General Statutes § 53a–70 (a)(1) and kidnapping in the first degree in violation of General Statutes § 53a–92 (a)(2)(A). Three years after the petitioner's judgment of conviction was final, this court overruled an interpretation of our kidnapping statutes to which it had adhered in the face of numerous challenges over more than three decades, under which the crime of kidnapping did not require that the restraint used be more than that which was incidental to and necessary for the commission of another crime against the victim. See State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). Subsequently, this court determined that the holding in Salamon overruling that overly broad interpretation applied retroactively to collateral attacks on final judgments. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011) ( Luurtsema II ). The principal issues in the present case are whether the petitioner's failure to challenge our long-standing interpretation of kidnapping in his criminal proceedings requires him to overcome the bar of procedural default, and what constitutes the proper standard for assessing whether the petitioner is entitled to a new trial on that charge.
General Statutes § 53a–70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person (1) compels another person to engage in sexual intercourse by the use of force against such other person ... or by the threat of use of force against such other person ... which reasonably causes such person to fear physical injury to such person....”
General Statutes § 53a–92 (a) provides in relevant part: “A person is guilty of kidnapping in the first degree when he abducts another person and ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually....”
Upon our grants of certification, the respondent, the Commissioner of Correction, and the petitioner separately appealed from the Appellate Court's judgment, which affirmed the judgment of the habeas court granting in part and denying in part the petitioner's petition for a writ of habeas corpus and ordering a new trial on the kidnapping charge. Hinds v. Commissioner of Correction, 151 Conn.App. 837, 839, 97 A.3d 986 (2014). In his certified appeal, the respondent contends that the Appellate Court applied the wrong cause and prejudice standards in concluding that the petitioner had overcome his procedural default of a challenge to the kidnapping instruction and therefore could prevail on the merits. In the petitioner's appeal, he contends that the Appellate Court improperly affirmed the habeas court's judgment insofar as it concluded that a due process claim based on the cumulative effect of trial errors that individually were harmless is not cognizable under Connecticut law.
With respect to the respondent's appeal, we conclude that Luurtsema II's retroactivity decision compels the conclusion that challenges to kidnapping instructions in criminal proceedings rendered final before Salamon are not subject to the procedural default rule. We further conclude that the petitioner is entitled to a new trial on the kidnapping charge because the omission of a Salamon instruction was not harmless beyond a reasonable doubt. With respect to the petitioner's appeal, we conclude that, even assuming we were to recognize cumulative trial error as a basis for a due process violation, the improprieties in the petitioner's criminal trial would not rise to such a level. Therefore, we affirm the judgment of the Appellate Court.
The jury reasonably could have found the following facts in support of the kidnapping and sexual assault convictions, none of which the petitioner disputed except his identity as the perpetrator. On August 28, 2000, at approximately 9 p.m., sixteen year old K left the Super Stop & Shop supermarket in Milford on foot to head to a friend's apartment that was approximately five minutes away. En route, K cut through the property of In–Line Plastics Tool Company (In–Line Plastics). As she approached the property, K noticed a pickup truck exit the driveway of In–Line Plastics, but then reenter and come to a stop in the parking area. As she walked past the truck, she turned around and observed that the driver had exited the vehicle and was walking behind her. She continued walking and, upon turning around again, she saw that the driver was right behind her and wearing only underwear and a sleeveless shirt. Although it was nighttime, the lights on the surrounding buildings sufficiently illuminated the area to enable K to see the face of the driver, the petitioner.
We have omitted facts relevant to events that occurred after the petitioner's interactions with the victim, which provided additional support for the petitioner's convictions, as they are not relevant to our resolution of the issues in this habeas action. See State v. Hinds, 86 Conn.App. 557, 559–63, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005).
In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim. See General Statutes § 54–86e.
At that point, K started to run through the parking lot of In–Line Plastics, in the direction of some trees between the back parking lot and the route to her friend's apartment. The petitioner ran after K, grabbed her, and put one of his hands around her waist and his other hand over her mouth. He instructed her not to scream or he would kill her. The petitioner then threw K down and dragged her by the legs to a grassy area between the In–Line Plastics parking lot and a small house, behind an overgrown bush where it was darker. The petitioner sat on K's chest with his legs on the outside of her arms so she could not move and instructed K to open her mouth. He inserted his penis into her mouth and forced her to perform fellatio on him, ejaculating into her mouth. The petitioner then patted her on the cheek and told her she could leave. Too afraid to move, K remained where she was. As the petitioner walked back toward his truck, K pleaded with him not to kill her, telling him that she would not tell anybody what had happened. The petitioner turned around and looked at K, again enabling her to see his face. He then entered his truck and drove away. K's description of her attacker and his truck eventually led to the petitioner's identification and arrest.
The record reflects the following procedural history. At trial, the jury was instructed, without objection, on the elements of abduction and restraint in accordance with established law regarding kidnapping. Following his conviction of sexual assault in the first degree and kidnapping in the first degree, the defendant claimed on direct appeal that the trial court had committed four improprieties. See State v. Hinds, 86 Conn.App. 557, 558–59, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005). None related to the jury instruction on kidnapping. The Appellate Court separately examined each of the claimed improprieties, and concluded that three improprieties had occurred but each was harmless. Id., at 563–77, 861 A.2d 1219. Accordingly, it affirmed the judgment of conviction. Id., at 577, 861 A.2d 1219. This court denied the petitioner's petition for certification to appeal. See State v. Hinds, 273 Conn. 915, 871 A.2d 372 (2005).
Thereafter, this court issued its decisions in Salamon and Luurtsema II, respectively overruling its overly broad interpretation of our kidnapping statutes and deeming the interpretation pursuant to Salamon to apply retroactively. Following the appointment of habeas counsel, the petitioner filed a second amended petition for a writ of habeas corpus. Therein, he alleged that: (1) there was constitutional error in the kidnapping instruction, pursuant to Salamon and Luurtsema II ; and (2) there were cumulative trial errors that violated his right to a fair trial. The respondent asserted procedural default as affirmative defenses to both counts, as well as failure to state a cognizable claim with respect to the second count. The habeas court granted the petition as to the first count, concluding that the petitioner had proved that he was entitled to the Salamon limiting instruction and that it was not clear beyond a reasonable doubt that the verdict on the kidnapping charge would have been the same had the jury been given the instruction. The habeas court rejected the respondent's procedural default defense, reasoning that Luurtsema II compelled such a result and that good cause existed for trial counsel's failure to seek a Salamon instruction in any event because firmly established law would have made a request for such an instruction futile. The habeas court denied the petition as to the second count, concluding that a due process claim of cumulative harm had not been recognized in Connecticut.
Both parties appealed from the judgment, and the Appellate Court consolidated the appeals. See Hinds v. Commissioner of Correction, supra, 151 Conn.App. at 839 n. 1, 97 A.3d 986. Although the Appellate Court affirmed the habeas court's judgment; id., at 839, 97 A.3d 986 ; it adopted different reasoning with respect to the kidnapping instruction. It determined that the proper framework for addressing that claim in light of the procedural default defense is the cause and prejudice standard set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), as adopted by this court in Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991). See Hinds v. Commissioner of Correction, supra, 151 Conn.App. at 852–53, 97 A.3d 986. The Appellate Court concluded that the cause standard had been met because there was no reasonable basis for the petitioner to have asked for an instruction that had been rejected by controlling decisional law. Id., at 855, 97 A.3d 986. The Appellate Court further concluded that, although the habeas court's decision suggested that it improperly had placed the burden on the respondent to prove that the omission of the Salamon instruction was harmless; id., at 855–56, 97 A.3d 986 ; the petitioner had demonstrated the requisite actual and substantial prejudice. Id., at 858–59, 97 A.3d 986. The court cited the close alignment in time and place of the victim's restraint and abduction to the sexual assault and the fact that the proper instruction would have required the jury to consider whether the restraint and abduction were merely incidental to the sexual assault. Id., at 859, 97 A.3d 986. In sum, it concluded that “[t]he failure to give a Salamon instruction, under the facts presented at trial, substantially deprived the petitioner of his constitutional right to have the jury properly informed of the meaning of the language of the kidnapping charge.” Id. The parties' certified appeals to this court followed.
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.) Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009). Because the certified appeals do not involve challenges to facts found, we apply plenary review.
I
We begin with the respondent's appeal challenging the Appellate Court's affirmance of the habeas court's judgment insofar as it granted the petitioner a new trial on the kidnapping charge. The respondent does not challenge the Appellate Court's conclusion that the habeas court properly determined that a Salamon limiting instruction would apply under the facts of the present case. Rather, he contends that the Appellate Court did not correctly apply the legal standard for assessing cause and prejudice to overcome procedural default. With respect to cause, he contends that Salamon itself disproves the Appellate Court's determination that the law on kidnapping was settled at the time of the petitioner's criminal trial. He further contends that, even if the law was settled, futility does not establish cause. At oral argument, the respondent suggested that, if this court were inclined to accept the petitioner's futility argument, it would be preferable to create a limited exception for Salamon claims rather than to change the law on procedural default. With respect to prejudice, the respondent contends that the prejudice necessary to overcome procedural default can only be established if the petitioner demonstrates that he would not have been convicted had the jury been charged in accordance with Salamon, a burden that the petitioner cannot meet.
In response, the petitioner first contends that the habeas court properly concluded that there had not been a procedural default. The petitioner asserts that the respondent failed to plead and prove that affirmative defense. The petitioner further asserts that the habeas court properly concluded that Luurtsema II compels the conclusion that there had been no default because that decision examined the policies underlying procedural default and found them to be outweighed by the importance of providing a habeas corpus remedy for persons convicted prior to Salamon under the incorrect interpretation of kidnapping. Alternatively, the petitioner contends that the Appellate Court properly concluded that he had established cause and prejudice to excuse any procedural default. We agree with the petitioner that Luurtsema II effectively resolved the procedural default question such that the doctrine does not apply to his Salamon claim. We further conclude that the petitioner has established his entitlement to a new trial on his kidnapping charge.
Justice Zarella's contention that “the parties have not raised the issue of whether the rule should be replaced in their separate appeals to this court” is beside the point. The petitioner does not make such a sweeping argument, but instead argues that procedural default does not apply in this case because, under Luurtsema II, there is no default of a Salamon claim. If there is no default, there is no basis to engage in the cause and prejudice analysis to determine whether procedural default is excused.
A
To address the questions before us, it is necessary to provide some background regarding the extraordinary circumstances preceding and following our decision in Salamon. Under our Penal Code, the hallmark of a kidnapping is an abduction, a term that is defined by incorporating and building upon the definition of restraint. State v. Salamon, supra, 287 Conn. at 530, 949 A.2d 1092 ; see also footnote 1 of this opinion (defining kidnapping in first degree). In 1977, this court squarely rejected a claim that, when the abduction and restraint of a victim are merely incidental to some other offense, such as sexual assault, that conduct cannot form the basis of a guilty verdict on a charge of kidnapping. See State v. Chetcuti, 173 Conn. 165, 170–71, 377 A.2d 263 (1977). The court pointed to the fact that our legislature had declined to merge the offense of kidnapping with sexual assault or with any other felony, as well as its clearly manifested intent in the kidnapping statutes not to impose any time requirement for the restraint or any distance requirement for the asportation. Id. On numerous occasions between that decision and the present petitioner's criminal trial, this court reiterated that position. See, e.g., State v. Wilcox, 254 Conn. 441, 465–66, 758 A.2d 824 (2000) ; State v. Amarillo, 198 Conn. 285, 304–306, 503 A.2d 146 (1986) ; State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983) ; State v. Johnson, 185 Conn. 163, 177–78, 440 A.2d 858 (1981), aff'd, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983) ; State v. Briggs, 179 Conn. 328, 338–39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980) ; State v. DeWitt, 177 Conn. 637, 640–41, 419 A.2d 861 (1979) ; State v. Lee, 177 Conn. 335, 342–43, 417 A.2d 354 (1979). The court appeared to leave open the possibility that there could be a factual situation in which the asportation or restraint was so miniscule that a conviction of kidnapping would constitute an absurd and unconscionable result that would render the statute unconstitutionally vague as applied. See State v. Troupe, 237 Conn. 284, 315, 677 A.2d 917 (1996) ; State v. Tweedy, 219 Conn. 489, 503, 594 A.2d 906 (1991). A kidnapping conviction predicated on the movement of the sexual assault victim from one room in her apartment to another, however, was deemed not to constitute such a result. State v. Tweedy, supra, at 503, 594 A.2d 906.
“ ‘Abduct’ means to restrain a person with intent to prevent his liberation by either (A) secreting or holding him in a place where he is not likely to be found, or (B) using or threatening to use physical force or intimidation.” General Statutes § 53a–91 (2).
“ ‘Restrain’ means to restrict a person's movements intentionally and unlawfully in such a manner as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved, without consent....” General Statutes § 53a–91 (1).
In State v. Luurtsema, 262 Conn. 179, 203–204, 811 A.2d 223 (2002) ( Luurtsema I ), decided a few months after the present petitioner's criminal trial concluded, this court foreclosed the possibility of an absurd or unconscionable result as a matter of statutory interpretation. In that case, the defendant, Peter Luurtsema, had moved the victim from the couch to the floor, forced the victim's legs apart, and manually choked her while attempting to perpetrate a sexual assault. Id., at 200, 811 A.2d 223. The defendant was convicted of attempt to commit sexual assault in the first degree, kidnapping in the first degree, and assault in the second degree. This court again rejected the request to interpret our kidnapping statute so as to require that the restraint and abduction to support kidnapping exceed that which is incidental to the commission of another crime. In accordance with the consistent refrain of the decisions that preceded it, the court in Luurtsema I concluded that, in light of the express statutory terms, “[t]he defendant's interpretation of the kidnapping statute is simply not the law in this state.” (Internal quotation marks omitted.) Id., at 202, 811 A.2d 223.
Six years later, in Salamon, the court was persuaded to reexamine the broad, literal interpretation to which it had adhered for more than three decades. See State v. Salamon, supra, 287 Conn. at 513–14, 949 A.2d 1092. In concluding that it must overrule its long-standing interpretation, the court went beyond the language of the kidnapping statutes to consider sources that it previously had overlooked. It explained: “Upon examination of the common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, we now conclude the following: 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.
Following that decision, Luurtsema filed a habeas petition seeking to have the holding in Salamon applied retroactively to his case. Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 743, 12 A.3d 817. In Luurtsema II, this court concluded as a matter of state common law that policy considerations weighed in favor of retroactive application of Salamon to collateral attacks on judgments rendered final before that decision was issued. In response to a host of arguments advanced by the state against retroactivity, the court concluded: “We are not unsympathetic to the legitimate concerns ... relating to the general importance of preserving the finality of criminal convictions.... [H]owever, we are convinced that ... in cases such as this, the interests of finality must give way to the demands of liberty and a proper respect for the intent of the legislative branch.” Id., at 766, 12 A.3d 817. B
With this background in mind, we turn to the question of whether the petitioner's Salamon claim is subject to the doctrine of procedural default because of his failure to challenge his kidnapping instruction in his criminal proceedings. We conclude that it is not.
Because we conclude that the petitioner's Salamon claim is not subject to procedural default, we need not consider the petitioner's alternative argument that the Appellate Court properly determined that he established good cause to excuse any default under Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), in light of this court's repeated rejection of a Salamon type claim. In Reed, the United States Supreme Court identified three situations in which a new constitutional rule might emerge from that court, which, if applied retroactively, would result in a circumstance in which counsel would have had no reasonable basis in existing law to seek habeas relief. Id., at 17, 104 S.Ct. 2901. One such situation was that court's overruling of its precedent. Id. The court reasoned that, in that situation, “the failure of a defendant's attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the cause requirement.” Id. Subsequent case law has raised questions about the scope of this good cause exception. See, e.g., Bousley v. United States, 523 U.S. 614, 622–23, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (distinguishing novel claims from futile claims); Engle v. Isaac, 456 U.S. 107, 130–34, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (same); but see Peck v. United States, 106 F.3d 450, 456 (2d Cir.1997) (concluding that petitioner “demonstrated ‘cause’ for his failure to pursue on direct appeal his contention of instructional error because this court had definitively resolved the question as to the proper jury instruction regarding scienter and the Supreme Court had not agreed to review the issue prior to the deadline for [the petitioner] to file an appeal”). Neither Bousley nor Engle, however, involved claims that would have required the United States Supreme Court or the state's highest court to overrule those courts' precedents. Justice Zarella's dissenting opinion does not, in our view, fairly address the question of whether three decades of precedent from the highest reviewing court renders a legal argument challenging that precedent not merely futile, but one for which the petitioner would have no reasonable basis in existing law, even if the claim cannot be deemed “novel” because it previously has been raised in some form. In light of our resolution of this appeal on different grounds, we leave those questions for another day.
Although our court has often recognized that we are not bound by federal postconviction jurisprudence; see Small v. Commissioner of Correction, 286 Conn. 707, 720, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008) ; Valeriano v. Bronson, 209 Conn. 75, 83 n. 7, 546 A.2d 1380 (1988) ; Vena v. Warden, 154 Conn. 363, 366, 225 A.2d 802 (1966) ; we have adopted the procedural default standard prescribed in Wainwright v. Sykes, supra, 433 U.S. at 87, 97 S.Ct. 2497. See Jackson v. Commissioner of Correction, 227 Conn. 124, 132, 629 A.2d 413 (1993) ; Johnson v. Commissioner of Correction, supra, 218 Conn. at 409, 589 A.2d 1214. “Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance....” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 567–68, 941 A.2d 248 (2008). The cause and prejudice requirement is not jurisdictional in nature, but rather a prudential limitation on the right to raise constitutional claims in collateral proceedings. Taylor v. Commissioner of Correction, 284 Conn. 433, 447 n. 18, 936 A.2d 611 (2007).
The prudential considerations underlying the procedural default doctrine are principally intended to vindicate two concerns: federalism/comity and finality of judgments. See Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ; Murray v. Carrier, 477 U.S. 478, 495, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ; Crawford v. Commissioner of Correction, supra, 294 Conn. at 180–81, 982 A.2d 620 ; Jackson v. Commissioner of Correction, supra, 227 Conn. at 134, 629 A.2d 413 ; see also Brecht v. Abrahamson, 507 U.S. 619, 635, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (“The reason most frequently advanced in our cases for distinguishing between direct and collateral review is the [s]tate's interest in the finality of convictions that have survived direct review within the state court system.... We have also spoken of comity and federalism. The [s]tates possess primary authority for defining and enforcing the criminal law. In criminal trials they also hold the initial responsibility for vindicating constitutional rights. Federal intrusions into state criminal trials frustrate both the [s]tates' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” [Citations omitted; internal quotation marks omitted.] ). Of course, in state habeas proceedings, only finality and the constellation of issues related thereto are implicated. See James L. v. Commissioner of Correction, 245 Conn. 132, 142 n. 11, 712 A.2d 947 (1998) (noting that statutory constraints on federal court jurisdiction over federally filed writs of habeas corpus “reflect congressional views of federalism and comity that are not pertinent to the exercise of state court jurisdiction over state habeas corpus cases”).
In Luurtsema II, this court engaged in a comprehensive analysis of finality considerations when deciding to apply Salamon retroactively to collateral attacks on final judgments. Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 765–73, 12 A.3d 817. The court addressed in turn five rationales advanced by the state in support of either adopting a per se rule against retroactive relief or denying relief in Luurtsema's case: “(1) the fact that law enforcement relied on the old interpretation of the kidnapping statutes while trying the petitioner; (2) the fact that the retroactive application of Salamon has no deterrent value or remedial purpose; (3) the fear that our courts will be ‘flooded’ with habeas petitions from other inmates convicted under § 53a–92 (a)(2)(A) ; (4) the difficulty of retrying such cases where significant time has elapsed since conviction; and, perhaps most importantly (5) the concern that victims will be retraumatized by again having to testify and endure another round of judicial proceedings.” Id., at 765, 12 A.3d 817. This court did not find any of these rationales a sufficient basis, individually or collectively, for withholding retroactive application of Salamon to collateral attacks on final judgments. Id., at 766–73, 12 A.3d 817. Accordingly, application of the procedural default bar to protect finality of judgments seems inconsistent with the reasoning in Luurtsema II that “the interests of finality must give way to the demands of liberty and a proper respect for the intent of the legislative branch.” Id., at 766, 12 A.3d 817 ; see also id., at 759, 12 A.3d 817 (“under our system of justice, considerations of finality simply cannot justify the continued incarceration of someone who did not commit the crime of which he stands convicted”). Other aspects of the court's reasoning bolster our conclusion that this holding was not intended to afford relief to only those petitioners who could avoid or overcome the procedural default bar. The court in Luurtsema II extensively considered limitations on its retroactivity ruling, but did not cite procedural default as such a limitation. Availability of that doctrine and its heightened prejudice standard would have been a natural response to the state's floodgates argument had the court intended the doctrine to apply. Instead, the court responded: “There is little doubt that some petitioners will come forward contending that they are serving substantially longer sentences than are prescribed by the criminal code, as properly construed. In its brief, however, the state has identified only five such petitions that have been filed in the more than two years since we decided Salamon and [State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009) ]. At oral argument before this court, the state declined to provide additional information as to the number of present inmates who might have a colorable claim under Salamon. Of the 1.5 percent of [D]epartment of [C]orrection inmates incarcerated for kidnapping or unlawful restraint, one can reasonably assume that only a small subset will fall within the ambit of Salamon. Of those, we expect that courts will be able to dispose summarily of many cases where it is sufficiently clear from the evidence presented at trial that the petitioner was guilty of kidnapping, as properly defined, [such] that any error arising from a failure to instruct the jury in accordance with the rule in Salamon was harmless. See, e.g., State v. Hampton, 293 Conn. 435, 463–64, 978 A.2d 1089 (2009). Likewise, we doubt the state will expend the resources to retry cases where it is reasonably clear that a petitioner could not have been convicted of kidnapping under the correct interpretation of the statute.” (Footnotes altered.) Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 769–70, 12 A.3d 817.
The respondent and Justice Zarella argue that Luurtsema II has no precedential value because the main opinion, to which we refer, was a plurality decision, and there were three separate concurring opinions. Justice Katz' concurring opinion rested on due process, rather than common-law grounds, but she expressly addressed the ground on which the plurality rested its decision and stated: “I wholly agree with the plurality's thoughtful explanation as to why we should reject the state's call to adopt a per se rule against retroactivity and its equally persuasive rejection of the state's arguments against affording relief to the petitioner in the present case.” Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 791, 12 A.3d 817. Her sole disagreement with the majority's resolution of that issue was its recognition of the possibility of unusual circumstances in which retroactivity would not apply. Id. Thus, a majority of the court rejected the state's policy arguments relating to finality.
We are mindful that federal courts have concluded that procedural default will bar application of a retroactive holding. See, e.g., Ilori v. United States, 198 Fed.Appx. 543, 545 (7th Cir.2006) ; United States v. McCrimmon, 443 F.3d 454, 462 n. 44 (5th Cir.2006) ; United States v. Pettigrew, 346 F.3d 1139, 1143–45 (D.C.Cir.2003) ; see also Bousley v. United States, 523 U.S. 614, 620, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (deeming court's limiting interpretation of criminal statute not barred by retroactivity principles but barred by procedural default). As we previously have explained, federal habeas review is constrained by statutory, constitutional, and prudential considerations other than finality of judgments. We also note that the court's retroactivity analysis in Luurtsema II was not premised on federal retroactivity or constitutional jurisprudence. Instead, it relied exclusively on state common law.
Luurtsema's challenge to his jury instruction on direct appeal was acknowledged in the context of providing background to the case and the law leading up to Salamon, its sole significance being that Luurtsema's criminal case was the most recent occasion on which the court had reiterated its long-standing interpretation of kidnapping. See Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 745–46, 12 A.3d 817. This challenge was never mentioned in the retroactivity analysis. See id., at 751–73, 12 A.3d 817. This omission was not an oversight. The court later mentioned this fact in a different part of the opinion when summarily rejecting Luurtsema's argument that he should not have to face retrial because he had challenged his jury instruction at trial. Id., at 774, 12 A.3d 817.
It does not appear from our review that any of these petitions were advanced by petitioners who had challenged their kidnapping instructions in their criminal proceedings. See Luurtsema v. Commissioner of Correction, Conn. Supreme Court Records & Briefs, September Term, 2010, State's Brief pp. 3–4 n.2.
State v. Sanseverino, supra, 291 Conn. at 579, 595, 969 A.2d 710, which superseded in part State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), was a companion case to Salamon in which this court applied the holding in Salamon without reaching the constitutional vagueness challenge raised by the defendant.
One particular aspect of this response is telling. The court cited the harmless error standard for direct appeal—a standard wholly inconsistent with the actual prejudice standard for procedurally defaulted claims—as the limiting mechanism for colorable but ultimately nonmeritorious claims. Id., at 770, 12 A.3d 817. Compare State v. Hampton, supra, 293 Conn. at 463, 978 A.2d 1089 (on direct appeal, “the test for determining whether a constitutional [impropriety] is harmless ... is whether it appears beyond a reasonable doubt that the [impropriety] complained of did not contribute to the verdict obtained” [internal quotation marks omitted] ), with United States v. Frady, 456 U.S. 152, 170, 172, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) (in procedurally defaulted claim, petitioner must prove that impropriety “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions,” such that, with proper instruction, there was “substantial likelihood” that jury would not have convicted petitioner [emphasis omitted] ).
In the present case, the respondent's procedural default argument rests on the same finality concerns that were deemed insufficiently weighty in Luurtsema II. Those concerns carry little weight in the present case because we can have a fair assurance that the state would effectively be in the same position even if the petitioner had raised a Salamon type challenge in his criminal proceedings. Not only was there a three decades long history preceding the petitioner's criminal trial of rejecting such a challenge, but mere months after the petitioner's trial, the court in Luurtsema I again rejected such a challenge. See State v. Luurtsema, supra, 262 Conn. at 202, 811 A.2d 223. Thus, we are not persuaded that the state would suffer any greater burden with respect to retrial if the petitioner prevails in this habeas action than it would have suffered had the petitioner challenged his kidnapping instruction in his criminal proceedings.
In sum, we conclude that the court in Luurtsema II determined that retroactive relief is available for all collateral attacks on judgments rendered final prior to Salamon, irrespective of whether the kidnapping instruction was challenged in the criminal proceedings, as long as the evidence warrants such relief. Accordingly, the petitioner's Salamon claim is not subject to procedural default. C
In light of this conclusion, we turn to the question of whether the petitioner is entitled to a new trial due to the omission of a proper instruction on kidnapping in accordance with Salamon. This determination requires us to consider the legal parameters set forth in Salamon, and the standard for assessing whether the omission of such guidance to the jury requires reversal of the petitioner's kidnapping conviction.
In Luurtsema II, the court indicated that the proper standard to make such an assessment would be the harmless error standard applied on direct appeal. See Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 770, 12 A.3d 817, citing State v. Hampton, supra, 293 Conn. at 463–64, 978 A.2d 1089. That is the standard that was applied by the habeas court in the present case and has been applied in several other cases. See, e.g., Eric M. v. Commissioner of Correction, 153 Conn.App. 837, 845, 108 A.3d 1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015) ; St. John v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–11–4003987–S, 2013 WL 1277284 (March 7, 2013) ; see also Epps v. Commissioner of Correction, 153 Conn.App. 729, 738, 740, 104 A.3d 760 (2014) (determining that petitioner must overcome procedural default but applying direct appeal harmless error standard in prejudice analysis); Nogueira v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–14–4006033–S, 2015 WL 4172992 (June 10, 2015) (same); Smith v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–08–4002747–S, 2011 WL 4582841 (September 13, 2011) (same).
On direct appeal, “[i]t is well established that a defect in a jury charge which raises a constitutional question is reversible error if it is reasonably possible that, considering the charge as a whole, the jury was misled.... [T]he test for determining whether a constitutional error is harmless ... is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.... A jury instruction that 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....” (Citation omitted; internal quotation marks omitted.) State v. Fields, 302 Conn. 236, 245–46, 24 A.3d 1243 (2011). The failure to charge in accordance with Salamon is viewed as an omission of an essential element; id.; and thus gives rise to constitutional error. See State v. LaFleur, 307 Conn. 115, 125, 51 A.3d 1048 (2012).
We note that, except for the fact that this standard imposes the burden of persuasion exclusively on the state, it is effectively the same standard that this court applies in habeas proceedings when such an error is advanced through a claim of ineffective assistance of counsel. See Small v. Commissioner of Correction, supra, 286 Conn. at 728, 946 A.2d 1203 (The court cited the direct appeal harmless error standard and then explained: “Because the petitioner raises his claim that he suffered harm as a result of the trial court's failure to instruct the jury on attempt via his claims of ineffective assistance of counsel, our review is limited to the issue of whether, under Strickland, the petitioner can demonstrate that trial counsel's failure to object to the erroneous charge or appellate counsel's failure to challenge it on appeal prejudiced him. We therefore ... assess whether there is a reasonable probability that, if the issue were brought before us on direct appeal, the petitioner would have prevailed.” [Footnote added.] ).
See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Under this harmless error standard, it is clear that the petitioner is entitled to a new trial. “[T]o 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.” State v. Salamon, supra, 287 Conn. at 542, 949 A.2d 1092. “[A] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case.... For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim's movement or confinement by the defendant, whether that movement or confinement occurred during the commission of the separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the defendant's risk of detection and whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense.” (Footnote omitted.) Id., at 547–48, 949 A.2d 1092.
In light of these parameters, we cannot 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.) State v. Fields, supra, 302 Conn. at 246, 24 A.3d 1243. As Salamon makes clear, when the evidence regarding the perpetrator's intent is susceptible to more than one interpretation, that question is one for the jury. The petitioner's actions in the present case were a continuous, uninterrupted course of conduct lasting minutes. The petitioner could not accomplish the sexual assault without grabbing K and bringing her to the ground. He released K as soon as the sexual assault was completed. Thus, the essential fact is the movement of K. K's asportation from the spot where she was grabbed to the site of the sexual assault, however, appears to have been a matter of yards and accomplished in a matter of seconds. Although that movement took K from the lit parking lot to the adjacent dark ground by a bush, an act that undoubtedly reduced the risk of detection in one regard, it also brought K in very close proximity to an occupied residence in the lot adjacent to the parking lot. There is no evidence that the risk of harm to K was made appreciably greater by the asportation in and of itself. A properly instructed jury reasonably could conclude that the petitioner's intention in moving K from the lit lot to the dark, grassy area was to prevent her from being able to get a good look at his face, because he could not perform in the lit space, or simply to avoid the hard paved surface while kneeling on the ground.
In his dissent, Justice Eveleigh concludes that “the kidnapping had already occurred when [K] was restrained and knocked down in the parking lot.” It is difficult to imagine how a sexual assault can be perpetrated without grabbing the victim, and the feasibility of accomplishing a sexual assault while the victim and the perpetrator are standing in the middle of a parking lot seems rather remote.
Although the evidence did not establish a precise distance or time, because such facts would not have been significant in the absence of a Salamon instruction, the most reasonable inference from the numerous photographic exhibits and K's testimony is that the distance and time of the asportation were minimal. Put differently, it would be unreasonable to infer from the evidence that the asportation took minutes rather than seconds.
By concluding that the asportation did not create a significant danger or increase K's risk of harm independent of that posed by the sexual assault, we do not intend to diminish the fact that K's fear of suffering harm was likely made greater by having been moved from a lit spot to one where it was dark.
Under the deficient instruction, however, the jury effectively was compelled to conclude that the petitioner committed kidnapping in the first degree once it credited K's account. See footnotes 1 and 5 of this opinion. With the proper instruction, the jury would have to consider whether the state had proved beyond a reasonable doubt that the petitioner's intention in committing these actions had sufficient independent significance from his intention to commit the sexual assault as to warrant a conviction of kidnapping in the first degree. The aforementioned facts provided a logical basis for it to conclude that they did not. Therefore, the state could not prove that the omission of the Salamon instruction was harmless beyond a reasonable doubt. Accordingly, the petitioner is entitled to relief under our established harmless error standard.
We note that this court has not had the occasion to consider whether, even in the absence of procedural default, a more stringent standard of harm should apply in collateral proceedings. In Brecht v. Abrahamson, supra, 507 U.S. at 623, 113 S.Ct. 1710, a bare majority of the United States Supreme Court departed from its history of more than 200 years of parity between direct appeals and habeas corpus proceedings for constitutional claims. See R. Hertz & J. Liebman, 2 Federal Habeas Corpus Practice and Procedure (6th Ed.2011) § 31.1, pp. 1679–80. Citing federalism, comity, finality and other prudential considerations, the court determined that habeas proceedings require a standard that imposes a less stringent burden on the state when the constitutional error is not structural. Brecht v. Abrahamson, supra, at 634, 113 S.Ct. 1710 (“an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment” [internal quotation marks omitted] ); see also id., at 643, 113 S.Ct. 1710 (Stevens, J., concurring). The court in Brecht determined that the same standard for determining whether habeas relief must be granted for nonconstitutional error applies, namely, whether the error “had substantial and injurious effect or influence in determining the jury's verdict.” (Internal quotation marks omitted.) Id., at 637, 113 S.Ct. 1710. “The determinative consideration ... is not the strength of the evidence or the probability of conviction at a hypothetical retrial absent the error. Rather, the relevant question is whether the error substantially affected the actual thinking of the jurors or the deliberative processes by which they reached their verdict.” (Footnote omitted.) R. Hertz & J. Liebman, supra, § 31.4[d], at p. 1720. Because the state bears the burden of proof, “where the record is so evenly balanced that a conscientious judge is in grave doubt as to the harmlessness of an error,” the petitioner must win. O'Neal v. McAninch, 513 U.S. 432, 437, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) ; see id., at 438, 115 S.Ct. 992 (“The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” [Emphasis omitted; internal quotation marks omitted.] ).
Brecht and its progeny have raised numerous questions as to the precise standard to be applied in determining whether a particular type of error is harmless, and what degree of certainty as to whether that standard has been met. See Peck v. United States, 102 F.3d 1319, 1320 (2d Cir.1996) (Newman, C.J., concurring) (attempting “to identify and illuminate uncertainties that have been created by the way the [United States] Supreme Court has explicated its recent harmless error jurisprudence in the context of constitutional errors” as to these questions); R. Hertz & J. Liebman, supra, § 31.4[a], at p. 1708 (citing questions left open by Brecht and its progeny). Some courts, like the Second Circuit, have decided that the Brecht harmless error standard serves as the actual prejudice component for excusing procedurally defaulted claims, thus similarly analyzing defaulted and nondefaulted claims. See Peck v. United States, 106 F.3d 450, 456–57 (2d Cir.1997) (citing cause and actual prejudice procedural default standard from United States v. Frady, supra, 456 U.S. at 167–68, 102 S.Ct. 1584, but applying standard in Brecht of “ ‘substantial and injurious effect or influence in determining the jury's verdict’ ” as actual prejudice standard). We need not decide in the present case whether to enter the fray by adopting the standard in Brecht and the uncertainties that accompany it. Nevertheless, because the dissenting justices' conclusion that the petitioner is not entitled to a new trial due to his failure to establish the actual prejudice to overcome a procedurally defaulted claim appears to signal a retreat from our holdings in Salamon and Luurtsema II, we take this opportunity to explain why the petitioner would prevail even under the more stringent standard applied by the dissents.
Justice Scalia's concurrence in California v. Roy, 519 U.S. 2, 6, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), joined by Justice Ginsburg, appears to have sown some of the seeds of confusion. See id., at 6, 7, 117 S.Ct. 337 (Scalia, J., concurring) (The concurring justices agreed that the standard in Brecht applied in a habeas case but concluded with respect to instructional error: “A jury verdict that [a criminal defendant] is guilty of the crime means, of course, a verdict that he is guilty of each necessary element of the crime.... Formally, at least, such a verdict did not exist here: The jury was never asked to determine that [the defendant] had the ‘intent or purpose of committing, encouraging, or facilitating’ his confederate's crime.... The absence of a formal verdict on this point cannot be rendered harmless by the fact that, given the evidence, no reasonable jury would have found otherwise. To allow the error to be cured in that fashion would be to dispense with trial by jury.... The error in the present case can be harmless only if the jury verdict on other points effectively embraces this one or if it is impossible, upon the evidence, to have found what the verdict did find without finding this point as well. ” [Citations omitted; emphasis altered.] ). Some courts have relied on this concurrence as providing a functional equivalent test for an omitted element in a jury instruction. See, e.g., United States v. McDonald, 150 F.3d 1301, 1304 (10th Cir.1998) ; Smith v. Horn, 120 F.3d 400, 418 (3d Cir.1997).
This court has suggested that we would apply the standard in United States v.
Frady, supra, 456 U.S. 152, 102 S.Ct. 1584, for the prejudice showing required to overcome procedural default. See Johnson v. Commissioner of Correction, supra, 285 Conn. at 570–71, 941 A.2d 248 ; Valeriano v. Bronson, supra, 209 Conn. at 84, 546 A.2d 1380. Under Frady, the petitioner “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” (Emphasis omitted.) United States v. Frady, supra, at 170, 102 S.Ct. 1584. In applying that standard, the court indicated that the petitioner would have to demonstrate that, with the proper instruction, there was a “substantial likelihood” that the jury would not have found the petitioner guilty of the crime of which he was convicted. Id., at 172, 102 S.Ct. 1584 ; see also United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir.2003) (equating substantial likelihood standard in Frady to “reasonable probability that, but for [the errors], the result of the proceeding would have been different” [internal quotation marks omitted] ). Substantial likelihood or reasonable probability does not require the petitioner to demonstrate that the jury more likely than not would have acquitted him had it properly been instructed. See Strickler v. Greene, 527 U.S. 263, 280, 297–98, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (Souter, J., concurring in part and dissenting in part) (agreeing with majority that “ ‘reasonable probability’ ” under Brady does not require defendant to show that different result is more likely than not, but suggesting that, because term is misleading, “ ‘significant possibility’ would do better at capturing the degree to which the undisclosed evidence would place the actual result in question, sufficient to warrant overturning a conviction or sentence”); United States v. Hernandez, 94 F.3d 606, 610 (10th Cir.1996) ( “[t]here appears to be little or no difference in the operation of the ‘materiality’ [Brady ] and ‘prejudice’ [Frady ] tests”); People v. Versteeg, 165 P.3d 760, 765 (Colo.App.2006) (“[A] showing of actual prejudice under Frady generally depends on an inference that the error affected the outcome. This is the same showing of prejudice that is required for Strickland or Brady errors.” [Internal quotation marks omitted.] ). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (state's suppression of material, exculpatory evidence).
As even the dissenting justices purportedly concede in the present case, this standard does not require the petitioner to show that there was insufficient evidence to convict him under Salamon to prevail. Insufficient evidence would require the petitioner to meet an even higher standard than the inapplicable more probable than not standard. See State v. Bennett, 307 Conn. 758, 763, 59 A.3d 221 (2013) (“[i]n reviewing a sufficiency of the evidence claim, we construe the evidence in the light most favorable to sustaining the verdict, and then determine whether from the facts so construed and the inferences reasonably drawn therefrom, the trier of fact reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt”). A recent decision, however, in which this court concluded that it was a “close case” under that higher standard, illustrates why there is a substantial likelihood that a properly charged jury would not have convicted the petitioner. See State v. Ward, 306 Conn. 718, 736, 51 A.3d 970 (2012). In Ward, this court reviewed a trial court's judgment setting aside a verdict finding the defendant guilty of kidnapping but leaving the defendant's sexual assault conviction intact, which required the court to view the evidence in the light most favorable to supporting the jury's verdict. Id., at 729–30, 51 A.3d 970. In reversing the trial court's judgment, this court explained: “Although this is a close case, we conclude that the jury, which had been instructed on the applicable legal principles in accordance with Salamon, reasonably could have found that the defendant's confinement or movement of the victim was not merely incidental to the sexual assault. The victim, who weighed a mere 100 pounds, testified that she could not escape because the defendant was twice her size and held her very tightly. By moving the victim away from the kitchen door, the defendant made the possibility of escape even more remote. From this testimony, it was reasonable for the jury to conclude that the defendant could have sexually assaulted the victim without threatening to kill her and without continuously holding the knife sharpening tool to her neck and, therefore, that the force used by the defendant exceeded the amount necessary to commit the sexual assault. It was also reasonable to infer that the defendant, by engaging in this conduct, intended to frighten and subdue the victim to prevent her from struggling, trying to escape or summoning assistance. In light of the evidence, the jury also reasonably could have concluded that the defendant increased the risk of harm to the victim by holding the pointed metal knife sharpening tool to her neck and by moving her away from the kitchen door, which not only made it less likely that she would escape, but also made it less likely that the crime would be detected.... Moreover, given the disparity in size and strength between the defendant and the victim, it was reasonable for the jury to conclude that the defendant did not need to move the victim from the kitchen in order to sexually assault her. If he intended to move her to a location that was more comfortable for him, he could have quickly moved her to the bedroom and onto the bed. Instead, he moved her from the kitchen to the bedroom, and ultimately onto the floor. Finally, although the incident lasted ten to fifteen minutes, the sexual assault itself lasted only two minutes.” (Citation omitted; footnote omitted.) Id., at 736–37, 51 A.3d 970.
By contrast, in the present case, the petitioner's actions preceding the sexual assault appear to have taken seconds. He released K as soon as he completed the sexual assault. Although the asportation of K to a darker spot could help avoid detection, a jury reasonably could conclude that the petitioner had moved K from the parking lot to the nearby grass for his comfort. Her ability to escape was not diminished by moving her to the grass by the bush because this placed K closer to an occupied residence. The petitioner used no weapon to threaten K and thus did not increase the risk of harm to her on that basis. Except for the brief moment when the petitioner placed his hand over K's mouth, her physical ability to summon help was impaired solely due to the nature of the sexual assault. If the facts of Ward present a close case as to whether there was sufficient evidence to support a kidnapping conviction, then the facts in the present case would clearly undermine confidence in the petitioner's conviction due to the omission of a Salamon instruction.
The cases cited by the dissenting justices in support of their position all involve determinations of sufficient evidence to support a kidnapping conviction, not determinations of substantial likelihood of actual prejudice. Unlike Ward, however, the cases cited from other jurisdictions are not particularly persuasive because, although they consider a similar legal standard to ours, they give no indication of whether the evidence was merely sufficient or well in excess of that necessary to convict. Indeed, the fact that these cases involved far longer periods of restraint, far greater distances of asportation, continued restraint after completion of the nonkidnapping offenses, or numerous, distinct acts of restraint and asportation demonstrates why the present case is sufficiently close to require a new trial. See Yearty v. State, 805 P.2d 987, 993 (Alaska App.1991) (defendant's restraint of victim “went significantly beyond that which was merely incidental to the sexual assault” when defendant pulled victim off of bike path, “dragged him to a secluded area several hundred feet away, and there held him captive for almost an hour”); State v. Gordon, 161 Ariz. 308, 315–16, 778 P.2d 1204 (1989) (The “[d]efendant went beyond the restraint [kidnapping] inherent in the ultimate crime [of sexual assault]—he held the victim on the floor, hit her with his fists, and strangled her. Thus, the manner in which he committed the kidnapping added to the victim's suffering and increased her harm or risk of harm beyond that inherent in the ultimate crime.”); Lee v. State, 326 Ark. 529, 531, 932 S.W.2d 756 (1996) (defendant followed victim, grabbed her around her neck while she was on public sidewalk, and “dragged her approximately one city block to the back of the school building where there was no light,” where he raped her); People v. Robertson, 208 Cal.App.4th 965, 973, 146 Cal.Rptr.3d 66 (2012) (defendant ordered victim to enter dark garage, locked door with key, grabbed victim from behind, and ordered her to walk toward front of garage where large tub full of water was located; when victim refused, defendant pushed her forward toward tub and ordered her to lie down; victim did not scream or struggle when defendant sexually assaulted her near tub because she was afraid that defendant would throw her in tub and drown her); People v. Johnson, 389 Ill.Dec. 496, 26 N.E.3d 586, 589–90 (Ill.App.) (defendant forcibly moved victim from sidewalk to vacant lot, where he completed sexual act before moving her across alley to area between two garages where he raped her twice), appeal denied, 396 Ill.Dec. 181, 39 N.E.3d 1007 (Ill.2015).
The cases from this court cited by the dissenting justices yield even less support. See State v. Sanseverino, supra, 291 Conn. 574, 969 A.2d 710 ; State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008). Those cases involved direct appeals reviewing verdicts rendered in the absence of a Salamon instruction. In both cases, it seemed unlikely that the state had sufficient evidence to prevail on retrial but the court thought it appropriate to afford the state the opportunity to marshal additional evidence in support of the new standard. See State v. Sanseverino, supra, at 584–85, 969 A.2d 710 ; State v. DeJesus, supra, at 439, 953 A.2d 45 (ordering new trial because “any insufficiency in proof was caused by the subsequent change in the law under Salamon, rather than the government's failure to muster sufficient evidence”). In State v. Salamon, supra, 287 Conn. at 549–50, 949 A.2d 1092, the court concluded that it could not say that the defendant's restraint of the victim necessarily was incidental to his assault of the victim, and thus it was a factual question for a properly instructed jury. The dissenting justices reliance on these cases is troubling insofar as it suggests that they view Salamon as inapplicable to cases in which even the slightest movement or restraint of the victim beyond that which is absolutely essential to the commission of the nonkidnapping offense is established.
The court noted: “The victim testified that the defendant, after accosting her, forcibly held her down for five minutes or more. Although the defendant punched the victim once and shoved his fingers into her mouth, that conduct was very brief in contrast to the extended duration of the defendant's restraint of the victim. In light of the evidence, moreover, a juror reasonably could find that the defendant pulled the victim to the ground primarily for the purpose of restraining her, and that he struck her and put his fingers in her mouth in an effort to subdue her and to prevent her from screaming for help so that she could not escape. In such circumstances, we cannot say that the defendant's restraint of the victim necessarily was incidental to his assault of the victim. Whether the defendant's conduct constituted a kidnapping, therefore, is a factual question for determination by a properly instructed jury.” (Emphasis added; footnote omitted.) State v. Salamon, supra, 287 Conn. at 549–50, 949 A.2d 1092.
The cases cited by the dissenting justices indicate that they have failed to give meaningful effect to three critical, related aspects of the holding in Salamon. First, by focusing solely on whether there was any restraint or asportation beyond that necessary for the commission of the sexual assault, the dissenting justices ignore the “incidental to” language in Salamon. See State v. Salamon, supra, 287 Conn. at 542, 949 A.2d 1092 (“merely incidental to and necessary for the commission of another crime against that victim”); accord id., at 547, 949 A.2d 1092. Restraint may be incidental to a sexual assault that is not necessary for its commission. Second, the dissenting justices give no meaningful effect to the requirement that the additional restraint or asportation have “independent criminal significance....” Id., at 547, 949 A.2d 1092. The court in Salamon indicated that unlawful restraint, not kidnapping, would be the proper charge in the absence of such independent significance. See id., at 548, 949 A.2d 1092 (“because the confinement or movement of a victim that occurs simultaneously with or incidental to the commission of another crime ordinarily will constitute a substantial interference with that victim's liberty, such restraints still may be prosecuted under the unlawful restraint statutes”); see also id., at 546, 949 A.2d 1092 (indicating alignment of interpretation in Salamon with “majority view regarding the construction of statutes delineating the crime of kidnapping ... the salutary effect of which is to prevent the prosecution of a defendant on a kidnapping charge in order to expose him to the heavier penalty thereby made available, [when] the period of abduction was brief, the criminal enterprise in its entirety appeared as no more than an offense of robbery or rape, and there was lacking a genuine kidnapping flavor” [citations omitted; internal quotation marks omitted] ).
Finally, and related to the two preceding concerns, the dissenting justices do not recognize that the degree and nature of the restraint or asportation bears on the ultimate question—the perpetrator's intent in taking these actions. See id., at 532, 949 A.2d 1092 (“the proper inquiry for a jury evaluating a kidnapping charge is not whether the confinement or movement of the victim was minimal or incidental to another offense against the victim but, rather, whether it was accomplished with the requisite intent, that is, to prevent the victim's liberation” [emphasis added] ); id., at 542, 949 A.2d 1092 (“[o]ur 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” [emphasis added] ). Indeed, it was the ambiguity in the distinction between the intent to commit a kidnapping and the intent to commit an unlawful restraint that was at the heart of the analysis in Salamon. See id., at 534, 949 A.2d 1092 (“Those previous decisions [by our court] ... have not explored the parameters of that intent, in particular, how the ‘intent to prevent [a victim's] liberation’; General Statutes § 53a–91 (2) ; that is, the intent necessary to establish an abduction, differs from the intent ‘to interfere substantially with [a victim's] liberty’; General Statutes § 53a–91 (1) ; that is, the intent necessary to establish a restraint. Certainly, when an individual intends to interfere substantially with another person's liberty, he also intends to keep that person from escaping, at least for some period of time; in other words, he intends to prevent that person's liberation. Thus, the point at which an intended interference with liberty crosses the line to become an intended prevention of liberation is not entirely clear.”). Although the perpetrator's conduct is circumstantial evidence from which the jury infers such intent; see State v. Smith, 198 Conn. 147, 154–55, 502 A.2d 874 (1985) ; it is the degree and nature of the restraint or asportation that informs that inference.
Although we 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, we note a recent decision by Judge Mullins that reflects a more nuanced and appropriate comparison of cases with regard to these essential aspects of Salamon. See Mitchell v. Warden, Superior Court, judicial district of Tolland, Docket No. CV–10–4003542–S, 2014 WL 1283215 (February 27, 2014) (57 Conn. L. Rptr. 776 ). “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, supra, 293 Conn. at 463–64, 978 A.2d 1089 (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 (2011) ] (evidence showed the defendant restrained the victims to a greater degree than necessary to commit the assaults even though assaultive behavior spanned entire forty-five-minute duration of victims' confinement) [cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011) ]; State v. Strong, [122 Conn.App. 131, 143, 999 A.2d 765 ] (defendant's 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, where 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, [301 Conn. 77, 89, 17 A.3d 1025 (2011) ] (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) ].” Mitchell v. Warden, supra, 57 Conn. L. Rptr. at 781–82.
This discussion effectively illustrates why the petitioner's claim would succeed even under the more stringent prejudice standard for procedurally defaulted claims. The close alignment in time and place of K's restraint and abduction to the sexual assault calls into serious question whether reasonable jurors would conclude that the petitioner intended to restrain K for any purpose other than the commission of the sexual assault. Accordingly, there is a substantial likelihood that reasonable jurors would conclude that the state failed to meet its burden of proving beyond a reasonable doubt that the conduct had sufficient independent significance to warrant a conviction of kidnapping in the first degree. Accordingly, the Appellate Court properly concluded that the habeas court's judgment should be affirmed insofar as it granted the petitioner a new trial on his kidnapping conviction.
II
We turn next to the petitioner's appeal, which challenges the Appellate Court's determination that a claim of cumulative trial error as a violation of due process is not cognizable under Connecticut law. See Hinds v. Commissioner of Correction, supra, 151 Conn.App. at 860, 97 A.3d 986, citing State v. Samuels, 273 Conn. 541, 562, 871 A.2d 1005 (2005), and State v. Reddick, 33 Conn.App. 311, 338–39, 635 A.2d 848 (1993), cert. denied, 228 Conn. 924, 638 A.2d 38 (1994). The petitioner contends that the United States Supreme Court and every federal Circuit Court of Appeals recognize that trial errors individually insufficiently harmful to warrant a new trial may by their cumulative effect deprive a defendant of a fair trial in violation of his right to due process. He further contends that Connecticut case law does not bar such a claim, and would violate the supremacy clause of the federal constitution if it did.
The respondent contends that this claim was procedurally defaulted due to the petitioner's failure to raise it in his direct appeal, and that the petitioner failed to establish cause and prejudice to overcome the default. The respondent alternatively contends that the failure to recognize claims of cumulative error does not violate due process under federal law, and even if such claims were cognizable, the petitioner would not be entitled to relief on this basis. We conclude that, even if we were to recognize the cumulative error doctrine as articulated in the federal courts and to deem it applicable to habeas proceedings, the trial improprieties in the present case would not justify relief under that doctrine.
Federal case law in which the “ ‘cumulative unfairness' ” doctrine; United States v. Al–Moayad, 545 F.3d 139, 178 (2d Cir.2008) ; has required reversal of a conviction essentially seems to fall into one or more of the following categories: (1) the errors directly related to and impacted an identified right essential to a fair trial, i.e., the right to a presumption of innocence or the right to present witnesses in one's own defense; (2) at least one of the errors was so significant as to render it highly doubtful that the defendant had received a fair trial and the remaining errors created the additional doubt necessary to establish that there was serious doubt about the fairness of the trial, which is necessary to reverse a conviction; or (3) the errors were pervasive throughout the trial. The trial improprieties identified in the petitioner's direct appeal do not fall within any of these categories.
See, e.g., Chambers v. Mississippi, 410 U.S. 284, 297–303, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) (application of state rules violated right of accused to present witnesses in his own defense, in combination with right to present defense); Taylor v. Kentucky, 436 U.S. 478, 486–90, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978) (instructional errors impaired right to presumption of innocence); United States v. Haynes, 729 F.3d 178, 197 (2d Cir.2013) (defendant was improperly tried in shackles, trial court did not fulfill its obligation to investigate allegation of juror misconduct, court gave improper jury charge regarding obligations of deadlocked jury regarding further deliberations, and lay and expert testimony was erroneously admitted, all occurring in context of relatively short trial during which jury deliberated for approximately eight hours before returning deadlock note, “when considered together ... call into serious doubt whether the defendant received the due process guarantee of fundamental fairness”); United States v. Al–Moayad, supra, 545 F.3d at 178 (The improper admission of certain documentary evidence and the testimony of two witnesses “ ‘cast such a serious doubt on the fairness of the trial’ as to warrant reversal of the defendants' convictions. That doubt is especially grave when we also take into account the district court's erroneous admission of the mujahidin form, the wedding video, and the Croatian last will and testament, as well as its questionable handling of the derivative entrapment issue.”); Gaines v. Kelly, 202 F.3d 598, 605–606 (2d Cir.2000) (cumulative effect of instructional errors impaired right to have state prove elements of offense beyond reasonable doubt); United States v. Fields, 466 F.2d 119, 120–21 (2d Cir.1972) (cumulative effect of instructional errors impaired right to have state prove each element of offense beyond reasonable doubt); United States v. Guglielmini, 384 F.2d 602, 605–607 (2d Cir.1967) (total effect of errors, including trial judge's conduct suggesting bias in favor of prosecution created “firm impression that the defendants did not receive the fair trial to which our law entitles them,” bolstered by prosecutorial improprieties in cross-examination and argument, as well as improper reasonable doubt charge cast serious doubt on fairness of trial).
We note that, to the extent that some of these cases involve multiple defects in a jury charge relating to the same concern; see, e.g., Taylor v. Kentucky, supra, 436 U.S. at 486–90, 98 S.Ct. 1930 ; Gaines v. Kelly, supra, 202 F.3d at 605–606 ; we question whether they should be characterized as involving cumulative error rather than simply an improper jury charge on a matter.
The Appellate Court identified three improprieties. First, it determined that the trial court improperly admitted into evidence a photograph showing the petitioner with his underwear pulled down around his knees, with black tape covering the part of the photograph showing his genitals, taken when the petitioner was incarcerated. State v. Hinds, supra, 86 Conn.App. at 572–74, 861 A.2d 1219. The state had used this photograph to rebut the petitioner's misidentification theory premised in part on testimony that he never wore underwear. Id., at 572, 861 A.2d 1219. The Appellate Court determined that the photograph was not probative because it had been taken two years after the assault, but that its admission was harmless because it was cumulative of testimony, admitted without objection, that the petitioner had been wearing underwear when the photograph was taken. Id., at 573–74, 861 A.2d 1219. Second, the Appellate Court determined that there was an insufficient evidentiary basis to support the consciousness of guilt jury instruction regarding certain purportedly false statements made by the petitioner during the police investigation as to where he was staying and how long he had been in town. Id., at 563–68, 861 A.2d 1219. The court concluded that the statements were neither made in an effort to exculpate the petitioner nor connected to the crimes, but that the instruction was harmless given the strength of the state's case, in particular, the close match of the victim's description of her attacker and his vehicle to the petitioner and his truck. Id., at 568–69, 861 A.2d 1219. Third, the Appellate Court determined that the trial court improperly had failed to give the jury a supplemental answer correcting its earlier inaccurate answer to the jury's question as to whether a witness had testified regarding the date and time on a security recording of the Super Stop & Shop parking lot showing a vehicle similar to the one identified by the victim. Id., at 569–71, 861 A.2d 1219. The court deemed this error harmless because the correct information would have tended to inculpate the petitioner. Id., at 571, 861 A.2d 1219.
The petitioner claims that “the combined effect of [these improprieties] rendered [his] defense of misidentification far less persuasive, in violation of the constitutional right to a fair trial.” We are not persuaded that improprieties of this magnitude present a colorable basis for application of the cumulative error rule applied by the federal courts. Therefore, we need not consider whether our case law is in conflict with federal law.
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C.J., and PALMER and DiPENTIMA, Js., concurred.
ZARELLA, J., with whom EVELEIGH and ROBINSON, Js., join, dissenting.
The majority concludes that the procedural default rule does not apply to challenges to kidnapping instructions in criminal actions that proceeded to final judgment before we changed our interpretation of the kidnapping statutes in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), but, rather, should be replaced by a standard that provides retroactive relief in the form of a new trial for all collateral attacks on such judgments if the reviewing court determines that the omission of a Salamon instruction was not harmless beyond a reasonable doubt. I respectfully disagree. Neither party has questioned on appeal to this court whether the procedural default rule should be replaced by a different standard. Accordingly, the issue has not been properly raised or briefed. In addition, the majority relies on reasoning in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011), that was supported by only a plurality of this court and did not consider procedural default as a potential bar to habeas claims based on the omission of a Salamon instruction. As a consequence, Luurtsema does not compel the conclusion that the procedural default rule should not be applied in these cases, as the majority claims. Furthermore, the majority's decision to abandon the procedural default rule and adopt a different standard injects unnecessary incongruity into our law and undermines legitimate and settled expectations regarding the ability of petitioners to raise new claims that have not been raised at trial or in the Appellate Court. Finally, insofar as I deem the procedural default rule to be the proper legal standard for habeas review of Salamon claims, the petitioner, Walter Hinds, did not establish good cause for failing to seek a Salamon instruction at trial or for failing to raise the issue of its omission on direct appeal. For the reasons discussed in Justice Eveleigh's dissenting opinion, the petitioner also did not establish that he suffered actual prejudice under the facts and circumstances of this case. I would thus conclude that the Appellate Court incorrectly determined that the petitioner satisfied the two-pronged test of good cause and actual prejudice required to overcome procedural default.
I
I begin with the majority's sua sponte decision to abandon the procedural default rule on the basis of this court's reasoning in Luurtsema and to replace it with an entirely new standard that would require a reviewing court to determine whether the omission of a Salamon instruction was not harmless beyond a reasonable doubt. As previously noted, the parties have not raised the issue of whether the rule should be replaced in their separate appeals to this court. Both parties instead address the merits of the Appellate Court's conclusion that the petitioner established the good cause and actual prejudice required under the rule to allow habeas review of his jury instruction claim. In fact, the respondent, the Commissioner of Correction, citing Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991) (adopting cause and prejudice as “the appropriate standard for reviewability in a habeas corpus proceeding of constitutional claims not adequately preserved at trial because of procedural default”), specifically emphasizes in his brief that he is not challenging the Appellate Court's consideration of the procedural default rule in its review of the petitioner's claim, but only the manner in which the court applied the rule. The majority also acknowledges that the respondent is contending only that “the Appellate Court did not correctly apply the legal standard for assessing cause and prejudice to overcome procedural default.” Although the petitioner purportedly makes a brief, secondary argument that procedural default is not a bar to habeas review pursuant to the reasoning in Luurtsema, even he never goes so far as to suggest that the procedural default rule should be replaced by an entirely different standard. It is thus improper for the majority to consider the issue in the present case without the input of the parties who appealed to this court. See, e.g., Sabrowski v. Sabrowski,
The petitioner makes this relatively brief argument in the middle of his twenty-one page discussion of the procedural default rule and the conclusion of the habeas court and the Appellate Court that the petitioner had demonstrated the good cause and actual prejudice required under the rule to bar a procedural default.
State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008).
The majority describes the parties' failure to raise such a claim as “beside the point.” Footnote 4 of the majority opinion. I strongly disagree with this cavalier dismissal of such an obvious and important omission. If the majority wishes to address whether the procedural default rule should be replaced by a different standard in the context of a Salamon claim, it must do so by following the court's routine practice of ordering the parties to file supplemental briefs on the issue, as we have done when reexamining the standard of review for resolving habeas claims alleging ineffective assistance of counsel; see, e.g., Small v. Commissioner of Correction, 286 Conn. 707, 715 n. 5, 946 A.2d 1203 (2008) (ordering supplemental briefing on issue of appropriate standard of review in habeas proceedings for claims of ineffective assistance of counsel premised on failure of trial and appellate counsel to raise, at trial and on direct appeal, respectively, issue of lack of instruction on essential element of crime charged), cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008) ; Ghant v. Commissioner of Correction, 255 Conn. 1, 11 n. 7, 761 A.2d 740 (2000) (ordering supplemental briefing on standard to be applied in assessing ineffective assistance of counsel claim); and in numerous other cases involving a wide variety of issues. See, e.g., In re Shane M., 318 Conn. 568, 587 and n. 16, 122 A.3d 1247 (2015) (ordering supplemental briefing to consider appropriate standard of review of trial court's finding that parent has failed to achieve sufficient rehabilitation); State v. Kalphat, 285 Conn. 367, 374 and n. 11, 939 A.2d 1165 (2008) (ordering supplemental briefing concerning standing of defendant to challenge legality of search); Brown v. Soh, 280 Conn. 494, 500, 909 A.2d 43 (2006) (ordering supplemental briefing on impact of prior decision on exculpatory contracts signed by public users of commercial recreational services); State v. DeCaro, 280 Conn. 456, 468–69, 908 A.2d 1063 (2006) (ordering supplemental briefing regarding whether, in light of trial court's finding regarding compliance with subpoena, judgment should be affirmed); State v. Kirby, 280 Conn. 361, 387, 908 A.2d 506 (2006) (ordering supplemental briefing on whether certain statements properly admitted at trial); Dark–Eyes v. Commissioner of Revenue Services, 276 Conn. 559, 568 n. 9, 887 A.2d 848 (ordering supplemental briefing on impact of United States Supreme Court decision involving city's assessment of property taxes against Indian tribe), cert. denied, 549 U.S. 815, 127 S.Ct. 347, 166 L.Ed.2d 26 (2006) ; Almada v. Wausau Business Ins. Co., 274 Conn. 449, 454–55, 876 A.2d 535 (2005) (ordering supplemental briefing on impact of prior decision on claim of tortious processing of workers' compensation claim); Location Realty, Inc. v. General Financial Services, Inc., 273 Conn. 766, 771, 873 A.2d 163 (2005) (ordering supplemental briefing on applicability of particular statute to issue on appeal); Bloom v. Gershon, 271 Conn. 96, 105–106, 856 A.2d 335 (2004) (ordering supplemental briefing on impact of prior decision on whether Claims Commissioner had authority to permit apportionment complaint against state); Nussbaum v. Kimberly Timbers, Ltd., 271 Conn. 65, 70, 856 A.2d 364 (2004) (ordering supplemental briefing on whether enforceability of arbitration provision in contract is question to be decided in first instance by arbitrator); Pikulski v. Waterbury Hospital Health Center, 269 Conn. 1, 6 n. 3, 848 A.2d 373 (2004) (ordering supplemental briefing on applicability of recent decision to issue raised on appeal); Mandell v. Gavin, 262 Conn. 659, 662 n. 3, 816 A.2d 619 (2003) (ordering supplemental briefing on meaning of statutory term); Cox Cable Advisory Council v. Dept. of Public Utility Control, 259 Conn. 56, 62 n. 8, 788 A.2d 29 (ordering supplemental briefing on whether federal legislation preempted action of advisory council to local cable television company), cert. denied, 537 U.S. 819, 123 S.Ct. 95, 154 L.Ed.2d 25 (2002) ; Darien v. Estate of D'Addario, 258 Conn. 663, 670, 784 A.2d 337 (2001) (ordering supplemental briefing on meaning of statutory terms and relationship of certain statutes to one another); Quarry Knoll II Corp. v. Planning & Zoning Commission, 256 Conn. 674, 699–700, 780 A.2d 1 (2001) (ordering supplemental briefing on whether statutory amendment should be retroactively applied); Oxford Tire Supply, Inc. v. Commissioner of Revenue Services, 253 Conn. 683, 689, 755 A.2d 850 (2000) (ordering supplemental briefing on whether statutory amendment should be retroactively applied); State v. Hart, 221 Conn. 595, 607–608 n. 10, 605 A.2d 1366 (1992) (ordering supplemental briefing on whether, after defendant has raised issue of drug dependency, state or defendant has burden of proof under statutory scheme and what standard applies).
The majority asserts that “[i]t is difficult to imagine how a sexual assault can be perpetrated without grabbing the victim, and the feasibility of accomplishing a sexual assault while the victim and the perpetrator are standing in the middle of a parking lot seems rather remote.” See footnote 13 of the majority opinion. The majority seems to be asserting that dragging the victim behind the large overgrown bush in the adjacent lot was incidental to the sexual assault because the assault could not be performed while they were both standing. The majority's position, however, ignores the evidence in the present case. The evidence in the present case established that the petitioner knocked the victim to the ground while they were both still in the parking lot. Therefore, the asportation of the victim to the dark area behind a large overgrown bush in an adjacent yard was not necessary or incidental to the assault.
282 Conn. 556, 560, 923 A.2d 686 (2007) (reviewing court limited to resolving claims raised by parties); Ghant v. Commissioner of Correction, 255 Conn. 1, 17, 761 A.2d 740 (2000) (“[i]t is not appropriate to engage in a level of review that is not requested” [internal quotation marks omitted] ). II
Notwithstanding this significant threshold problem, even if the parties had raised and briefed the issue, I do not agree with the majority's reliance on the reasoning in Luurtsema to abandon application of the procedural default rule when petitioners in habeas cases bring Salamon claims. The majority concludes that Luurtsema “effectively resolved the procedural default question such that the doctrine does not apply to [the petitioner's] Salamon claim.” In the majority's view, Luurtsema determined, as a matter of state common law, that policy considerations weigh in favor of retroactive application of Salamon to collateral attacks on judgments rendered final before Salamon was decided; see Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 766–67, 12 A.3d 817 (plurality opinion). Accordingly, application of the procedural default rule to protect the finality of judgments would be inconsistent with the reasoning in Luurtsema that “the interests of finality must give way to the demands of liberty and a proper respect for the intent of the legislative branch.” Id., at 766, 12 A.3d 817 (plurality opinion). In further support of this conclusion, the majority adds that Luurtsema failed to explicitly consider procedural default as a limitation on its decision. In my view, however, the majority misunderstands Luurtsema and its potential effect, if any, on the disposition of Salamon claims in habeas proceedings.
I begin by noting that the analysis in Luurtsema on which the majority relies was endorsed by a plurality of three panel members, with one other member of the panel concurring only in the judgment and two other members concurring only in the result. As a consequence, the plurality's analysis in Luurtsema does not govern in the present case because it does not reflect the decision of a majority of the panel members.
To better understand the precedential value of Luurtsema, I briefly review the opinions in that case. Initially, the habeas court reserved two questions for resolution by this court: “(1) whether [this court's decisions in] Salamon and [State v. Sanseverino, 287 Conn. 608, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus, 288 Conn. 418, 953 A.2d 45 (2008), and modified in part after reconsideration en banc by State v. Sanseverino, 291 Conn. 574, 969 A.2d 710 (2009) ] apply retroactively in habeas corpus proceedings; and (2) whether those cases apply in the petitioner's case in particular.” Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 743, 12 A.3d 817 (plurality opinion). All six members of the panel in Luurtsema agreed that both questions should be answered in the affirmative. Different panel members, however, relied on different rationales in reaching that conclusion.
With respect to the first question, a plurality of three justices opted not to characterize the Salamon decision as a clarification of the kidnapping statute that should be given full retroactive effect under a federal due process analysis. Id., at 751, 12 A.3d 817. The plurality instead chose to decide the retroactivity question under state common law, and, therefore, adopted “a general presumption in favor of full retroactivity for judicial decisions that narrow the scope of liability of a criminal statute. That presumption, however, would not necessarily require that relief be granted in cases where continued incarceration would not represent a gross miscarriage of justice, such as where it is clear that the legislature did intend to criminalize the conduct at issue, if perhaps not under the precise label charged. In situations where the criminal justice system has relied on a prior interpretation of the law so that providing retroactive relief would give the petitioner an undeserved windfall, the traditional rationales underlying the writ of habeas corpus [also] may not favor full retroactivity.” Id., at 764, 12 A.3d 817. The plurality emphasized that, “in the Salamon context in particular, any exceptions to the general presumption in favor of full retroactivity are likely to be few and far between.” Id. The plurality then rejected each of the state's five policy arguments for adopting a per se rule against retroactive relief or for denying relief to the petitioner, Peter Luurtsema. Id., at 765–72, 12 A.3d 817. With respect to the second reserved question, the plurality determined that this court's interpretation of the kidnapping statutes in Salamon should apply retroactively to Luurtsema because his case did not fall within any exception to the rule discussed therein and there appeared to be no evidence that Luurtsema intended to restrain the victim more than was necessary to conduct the underlying sexual assault. Id., at 773–74, 12 A.3d 817. In her concurrence, which no other justice joined, Justice Katz concluded, unlike the plurality, that the Salamon decision represented a clarification of the kidnapping statute that should be given full retroactive effect under federal due process law. See id., at 775, 12 A.3d 817. Although she agreed with the plurality's explanation as to why the court should reject the state's general policy arguments for adopting a per se rule against retroactivity and the state's arguments against affording relief to Luurtsema; id., at 791, 12 A.3d 817 ; she disagreed with the plurality's decision to permit exceptions to the rule of retroactivity in order to, as the plurality explained, “guard against certain fringe cases....” Id. She explained that the plurality had crafted “a novel rule of retroactivity under our common-law authority,” and that, “even if it were necessary to decide [the] case under our common-law authority, we should adopt a per se rule that decisions narrowing the interpretation of criminal statutes apply retroactively.” Id., at 775, 12 A.3d 817. Justice Katz further criticized the plurality's approach as “unclear” and discussed various hypothetical situations in which questions might arise regarding the retroactivity of decisions narrowing the interpretation of criminal statutes. Id., at 793, 12 A.3d 817. Justice Katz thus concurred only in the judgment. Id., at 797, 12 A.3d 817.
In Justice Palmer's separate concurrence, he expressed “agree[ment] with much of the plurality opinion and concur[red] in the result....” Id. He also explained, however, that he did not believe the court should decide the question of whether to adopt a per se rule in favor of full retroactivity under our common law, observing that the court “need not resolve the issue to decide the ... case because, as the plurality also conclude[d], [Luurtsema was] entitled to full retroactivity regardless of whether we adopt[ed] such a rule.” Id.
Justice McLachlan also issued a separate opinion in which he “reluctantly” concurred in the result. Id., at 798, 12 A.3d 817. He explained that he would have “prefer[red] to follow our long-standing principle of finality of judgments and would deny [Luurtsema] the relief that he [sought], [but he was] compelled to follow the precedent established by Salamon ....” Id., at 799, 12 A.3d 817.
This court has recognized that, “[w]hen a fragmented [c]ourt decides a case and no single rationale explaining the result enjoys the assent of [a majority of the] [j]ustices, the holding of the [c]ourt may be viewed as the position taken by those [m]embers who concurred in the judgments on the narrowest grounds....” (Internal quotation marks omitted.) State v. Ross, 272 Conn. 577, 604 n. 13, 863 A.2d 654 (2005), quoting Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). In Luurtsema, Justice Katz was the only concurring panel member who explicitly adopted any part of the plurality's reasoning. As previously discussed, she agreed with the plurality's rationale for rejecting the state's general arguments for a per se rule against retroactivity; Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 791, 12 A.3d 817 ; but she did not agree with the plurality's “novel rule of retroactivity under our common-law authority....” Id., at 775, 12 A.3d 817. She instead argued for a per se rule in favor of full retroactivity under a federal due process analysis. See id., at 791, 12 A.3d 817. Justice Palmer agreed with “much of the plurality opinion”; id., at 797, 12 A.3d 817 ; but did not distinguish those parts with which he agreed from those with which he disagreed. See id., at 797–98, 12 A.3d 817. Justice McLachlan did not agree with any part of the plurality's reasoning but merely stated that he felt “compelled to follow the precedent established by Salamon ....” Id., at 799, 12 A.3d 817. Accordingly, it does not appear that any of the three concurring justices explicitly agreed with the plurality's decision to adopt a “general presumption in favor of full retroactivity” or with its description of the scope of, or exceptions to, this general presumption. Id., at 764, 12 A.3d 817. I thus believe that the majority's assertion that the plurality's reasoning in Luurtsema “compels the conclusion that challenges to kidnapping instructions in criminal proceedings rendered final before Salamon are not subject to the procedural default rule”; (emphasis added); is legally unsupportable. The only parts of the plurality opinion that appear to have any precedential value are the court's affirmative answers to the reserved questions of whether Salamon and Sanseverino apply retroactively in habeas corpus proceedings and to Luurtsema, in particular, because those are the narrowest grounds on which a majority of the panel clearly agreed.
The majority states that the plurality opinion in Luurtsema has precedential value because Justice Katz “agree[d] with the plurality's thoughtful explanation as to why we should reject the state's call to adopt a per se rule against retroactivity and its equally persuasive rejection of the state's arguments against affording relief to [Luurtsema],” her “sole disagreement [being] with the [plurality's] resolution of [the retroactivity] issue ... [and] its recognition of the possibility of unusual circumstances in which retroactivity would not apply.” (Internal quotation marks omitted.) Footnote 7 of the majority opinion. The majority, however, misses the point that a majority of the panel members in Luurtsema failed to reach agreement on the crucial issue of how the retroactivity decision of the court should be applied. As previously discussed, Justice Katz supported a per se rule in favor of full retroactivity; Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 791, 12 A.3d 817 ; the plurality supported a general presumption in favor of retroactivity subject to certain qualifications that Justice Katz deemed unworkable; id., at 764, 12 A.3d 817 (plurality opinion); see id., at 791, 12 A.3d 817 (Katz, J., concurring); Justice Palmer expressed his hesitation to support a per se rule in favor of full retroactivity at that time; see id., at 797–98, 12 A.3d 817 ; and Justice McLachlan concurred in the judgment with little explanation. See id., at 798–99, 12 A.3d 817. Given these differing views, it cannot be said that Luurtsema has any precedential value with respect to the critical question before this court of the standard that should be applied when considering the retroactive application of Salamon in a habeas proceeding. The fact that Justice Katz may have agreed with the plurality's explanation as to why it rejected the state's policy arguments in favor of a per se rule against retroactivity simply does not relate to this question. Moreover, even if it did, our well established law provides that the holding of a fragmented court “may be viewed [only] as the position taken by those [m]embers who concurred in the judgments on the narrowest grounds....” (Emphasis added; internal quotation marks omitted.) State v. Ross, supra, 272 Conn. at 604 n. 13, 863 A.2d 654. Accordingly, the majority cannot view Justice Katz' concurring opinion, together with the opinion of the plurality, as supporting the conclusion that the procedural default rule does not apply to Salamon claims because Justice Katz had the broadest view of retroactivity, not the narrowest, which means that the plurality opinion in Luurtsema has no legal effect, contrary to what the majority would like to believe.
The majority asserts that the victim's “asportation from the spot where she was grabbed to the site of the sexual assault, however, appears to have been a matter of yards and accomplished in a matter of seconds.” The majority does not provide and I cannot find, a citation for either of these measurements. Indeed, the only evidence in the file establishes that the area where the victim was first apprehended and knocked down was a lit parking lot with multiple cars and that she was dragged up onto grass and around to a dark area in the rear of a large overgrown shrub. Although the majority relies on the fact that the shrub was located in the yard of an occupied home, there is no evidence that the petitioner had any idea that the home was occupied. There is no evidence that there were any lights on inside the home. The only evidence regarding the home is that the police officer interviewed the occupant who said he was home, but that he usually did not hear many outside noises because of noise caused by window air conditioners installed in his home and the motor from the factory next door.
In addition to the fact that the plurality's reasoning in Luurtsema has no precedential value, procedural default was not addressed by any of the panel members, most likely because Luurtsema's counsel had the foresight to ask the trial court for a Salamon -type instruction eight years before Salamon was decided. Id., at 774, 12 A.3d 817 (plurality opinion). Accordingly, in Luurtsema, the respondent did not raise a procedural default defense, and that case provides no guidance as to the applicability of the procedural default rule when a petitioner who has not requested a Salamon instruction at trial or raised the issue on direct appeal makes a Salamon claim in a subsequent habeas proceeding.
Moreover, I am not the first to note the lack of guidance in Luurtsema as to the applicability of procedural default to a Salamon claim. In Smith v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–08–4002747–S, 2011 WL 4582841 (September 13, 2011), a habeas case decided only eight months following the publication of Luurtsema, the court observed that the issue of procedural default was “absent and therefore never discussed by the Supreme Court” in Luurtsema and that this court “never had occasion in [Luurtsema ] to consider the effect of procedural default with respect to the retroactive application of Salamon. ” The court in Smith thus considered the respondent's affirmative defense of procedural default in that case and determined that the petitioner, Lawrence R. Smith, had established the good cause and actual prejudice required to overcome the default. Id. Thereafter, the respondent routinely raised the affirmative defense of procedural default when habeas petitioners sought a new trial because of the trial court's omission of a Salamon instruction, and petitioners never challenged the propriety of the defense, opting instead to argue that their claims had not been barred by the procedural default rule. See Hinds v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–09–4003234–S, 2012 WL 4820821 (August 21, 2012), aff'd sub nom. Hinds v. Commissioner of Correction, 151 Conn.App. 837, 97 A.3d 986, cert. granted, 314 Conn. 928, 928–29, 101 A.3d 273 (2014) ; Epps v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–06–4001167–S, 2012 WL 5936277 (November 7, 2012), aff'd sub nom. Epps v. Commissioner of Correction, 153 Conn.App. 729, 104 A.3d 760 (2014) ; Barile v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–10–4003798–S, 2013 WL 4873478 (August 13, 2013) ; Farmer v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–12–4004510–S, 2014 WL 2696740 (May 8, 2014) ; Wilcox v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–11–4004205–S (September 17, 2014), rev'd sub nom. Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 129 A.3d 796 (2016) ; Davis v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–11–4004289–S, 2014 WL 6415609 (October 6, 2014) ; Robles v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–12–4004528–S, 2014 WL 7647800 (December 16, 2014) ; Nogueira v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–14–4006033–S, 2015 WL 4172992 (June 10, 2015). Indeed, in one recent case in which the habeas court noted that the respondent had not raised procedural default as an affirmative defense, the court suggested that such a defense would have been appropriate. See Betancourt v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR–CV–12–4004762–S, 2016 WL 490285 (January 12, 2016) (“[The] court is of the opinion that this claim is susceptible to the special defense of procedural default if raised by the respondent. However, this was not the case.”). Similarly, when three of the foregoing habeas cases, including the present case, were appealed to the Appellate Court, that court considered the habeas court's ruling with respect to the respondent's procedural default defense in each case without hesitation. See Wilcox v. Commissioner of Correction, supra, at 739, 746, 749–50, 129 A.3d 796 (reversing judgment of habeas court, which had concluded that petitioner's claim was not procedurally defaulted, on ground that petitioner had failed to meet heavy burden of demonstrating actual prejudice due to absence of Salamon instruction); Epps v. Commissioner of Correction, supra, at 736, 738, 742, 104 A.3d 760 (affirming judgment of habeas court, which had concluded that petitioner's claim was not procedurally defaulted, on ground that petitioner had established good cause and actual prejudice due to absence of Salamon instruction); Hinds v. Commissioner of Correction, supra, at 855–60, 97 A.3d 986 (affirming judgment of habeas court granting habeas petition in part and concluding that petitioner had demonstrated good cause and actual prejudice due to absence of Salamon instruction). It thus has been universally understood by multiple petitioners, the respondent, every habeas court that has considered the issue, and the Appellate Court following Luurtsema that procedural default is an appropriate defense to a Salamon claim.
III
Because procedural default was never addressed in Luurtsema, it was left for future courts to decide how the retroactivity decision should be applied when habeas petitioners seek new trials because of the omission of a Salamon instruction. I freely acknowledge at the outset that, in my view, this court's decisions in Salamon and Sanseverino should not be applied retroactively. Thus, if I had been a panel member in Luurtsema, I would have answered the first reserved question in the negative and the second reserved question by limiting the application of Salamon and Sanseverino to the petitioner in Luurtsema. In fact, I strongly favor reconsideration of the decision in Luurtsema for the five policy reasons rejected by the plurality and Justice Katz in their respective opinions. These reasons include “(1) the fact that law enforcement relied on the old interpretation of the kidnapping statutes while trying the petitioner; (2) the fact that the retroactive application of Salamon has no deterrent value or remedial purpose; (3) the fear that our courts will be ‘flooded’ with habeas petitions from other inmates convicted under [the kidnapping statutes]; (4) the difficulty of retrying such cases where significant time has elapsed since conviction; and ... (5) the concern that victims will be retraumatized by again having to testify and endure another round of judicial proceedings.” Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 765, 12 A.3d 817 (plurality opinion). Of particular concern to me is that retroactive application of Salamon and Sanseverino will have no deterrent value, will make the retrial of cases that originally were tried up to three decades ago difficult to replicate, and may force victims who have recovered in part from the original crime and the first trial to reexperience their former pain and suffering.
Absent reconsideration by this court of the retroactivity issue, I would limit retroactive application of Salamon and Sanseverino to cases tried before Luurtsema in which a defendant, unlike the petitioner in the present case, either sought a Salamon —type instruction at trial, as counsel did in Luurtsema's case; Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 774, 12 A.3d 817 (plurality opinion); or raised a claim on direct appeal relating to the omission of such an instruction, as the defendant did in State v. Hampton, 293 Conn. 435, 455, 978 A.2d 1089 (2009), and Luurtsema also did in his direct appeal. See State v. Luurtsema, 262 Conn. 179, 200, 811 A.2d 223 (2002). I take this position because a criminal defendant who is convicted under the law in effect at the time he committed the crime cannot be said to suffer any harm from this limited application of Salamon and Sanseverino, having been put on notice of the consequences of his conduct. To the extent petitioners raise Salamon claims for the first time in habeas proceedings, however, I believe it is absolutely necessary to apply the procedural default rule when determining whether these claims are reviewable out of respect for the consistency of our procedural default law and for the principle of the finality of judgments.
In rejecting a per se rule against retroactivity, the court in Luurtsema left open several potential options for reviewing such claims, there being no majority in favor of any particular approach. Among these options are (1) a per se rule in favor of full retroactivity, as advocated by Justice Katz; id., at 791, 12 A.3d 817 ; (2) a general presumption in favor of full retroactivity subject to a few limited exceptions, as advocated by the plurality; see id., at 764, 12 A.3d 817 ; or (3) an approach that allows for the limited retroactivity of Salamon and Sanseverino under an appropriate standard of review.
The majority in the present case appears to reject the first two options in favor of the third option of limited retroactivity, but under a newly created and simplified standard that requires a reviewing court to consider whether omission of the instruction was “not harmless beyond a reasonable doubt.” Like the majority, I also reject the first two options. I nonetheless disagree with the majority's decision to create an entirely new standard because it represents a significant and unjustifiable departure from Connecticut's well established procedural default rule, which is the standard that is generally applied by reviewing courts in these circumstances.
The procedural default rule provides that the petitioner in a habeas proceeding “must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition.” (Emphasis omitted.) Johnson v. Commissioner of Correction, 285 Conn. 556, 567, 941 A.2d 248 (2008). Thus, to the extent a petitioner does not seek or object to the lack of a Salamon instruction at trial or raise the issue on direct appeal, his claim is subject to procedural default unless he is able to demonstrate good cause and actual prejudice for his failure to do so. See, e.g., id. We have stated that “[t]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule.” (Internal quotation marks omitted.) Id., at 568, 941 A.2d 248. For example, “a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard.” (Internal quotation marks omitted.) Id. With respect to actual prejudice, a petitioner must show “not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” (Emphasis omitted; internal quotation marks omitted.) Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).
Although it may be difficult for habeas petitioners who raise Salamon claims to establish the good cause and actual prejudice required to overcome procedural default, it is not impossible. Moreover, application of the procedural default rule when reviewing Salamon claims in habeas proceedings is consistent with our traditional respect for the finality of judgments and the purpose and policies underlying the Great Writ. As the state notes, the writ of habeas corpus is intended as “a special and extraordinary writ.” McClain v. Robinson, 189 Conn. 663, 668, 457 A.2d 1072 (1983). It is thus available to address “fundamental unfairness or miscarriage of justice”; Bunkley v. Commissioner of Correction, 222 Conn. 444, 461, 610 A.2d 598 (1992), overruled in part on other grounds by Small v. Commissioner of Correction, 286 Conn. 707, 946 A.2d 1203, cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008) ; and “not merely an error which might entitle [the petitioner] to relief on appeal.” (Internal quotation marks omitted.) Safford v. Warden, 223 Conn. 180, 190, 612 A.2d 1161 (1992). The habeas petitioner “does not come before the [c]ourt as one who is innocent, but on the contrary as one who has been convicted by due process of law....” (Internal quotation marks omitted.) Summerville v. Warden, 229 Conn. 397, 423, 641 A.2d 1356 (1994). Accordingly, the petitioner “bears a heavy burden of proof” when attacking a presumptively valid conviction. Lubesky v. Bronson, 213 Conn. 97, 110, 566 A.2d 688 (1989). Lastly, because this court has recognized that a “habeas ... petition may not be employed as a substitute for a direct appeal”; Summerville v. Warden, supra, at 429, 641 A.2d 1356 ; it makes no sense to abandon the cause and prejudice standard in favor of a harmless error standard generally applicable to a direct appeal in the relatively narrow category of cases involving Salamon claims.
I fully appreciate the liberty interests of petitioners who believe that they have been unfairly convicted and incarcerated for crimes they did not commit. The procedural default rule, however, provides an appropriate mechanism for reviewing Salamon claims because it does not forbid petitioners from bringing these claims. It simply requires petitioners to establish good cause and actual prejudice for failing to raise the claims at trial or on direct appeal. Furthermore, the cause and prejudice standard has been applied consistently in habeas proceedings without any apparent problem for more than two and one-half decades. See Crawford v. Commissioner of Correction, 294 Conn. 165, 186, 982 A.2d 620 (2009) ( “[s]ince Jackson [v. Commissioner of Correction , 227 Conn. 124, 629 A.2d 413 (1993) ], this court consistently and broadly has applied the cause and prejudice standard to trial level and appellate level procedural defaults in habeas corpus petitions”). Thus, abandoning that standard in favor of a different standard for the specific purpose of deciding Salamon claims would create an incongruity in our law that would encourage other petitioners to seek exceptions to, and potentially undermine, the procedural default rule.
The majority's only justifications for abandoning the rule are derived from reasoning in Luurtsema that did not reflect the views of a majority of this court. The first justification is that “application of the procedural default bar to protect finality of judgments seems inconsistent with the reasoning in [Luurtsema ] that ‘the interests of finality must give way to the demands of liberty and a proper respect for the intent of the legislative branch.’ ” Text accompanying footnote 8 of the majority opinion, quoting Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 766, 12 A.3d 817 (plurality opinion). As previously discussed, however, the court in Luurtsema did not adopt a per se rule in favor of full retroactivity. The court merely held that Salamon and Sanseverino should apply retroactively in answering “yes” to both reserved questions because it was unable to achieve a majority consensus on the scope of its holding. Insofar as there was any agreement whatsoever on the issue, a plurality of three justices concluded that, although there should be a general presumption in favor of full retroactivity, “there are various situations in which to deny retroactive relief may be neither arbitrary nor unjust”; Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 760, 12 A.3d 817 ; and, accordingly, the court should grant only limited exceptions to this general presumption. See id., at 764, 12 A.3d 817.
The majority next observes that Salamon claims should not be subject to procedural default in habeas proceedings because Luurtsema did not cite procedural default as a limitation on its retroactivity ruling, which the majority claims would have been a “natural response to the state's floodgates argument....” This justification is equally unpersuasive. The failure of the court in Luurtsema to consider the procedural default bar indicates nothing about its views on the subject because procedural default was not an issue in that case, Luurtsema's counsel having sought a Salamon type instruction at Luurtsema's trial. There is thus no support for the majority's speculation that the plurality's failure to discuss procedural default in Luurtsema meant that it did not view procedural default as a limitation on a habeas court's review of a Salamon claim. If that had been the case, the plurality surely would have expressed its view directly.
The majority's final justification for abandoning the procedural default rule is that “[t]he court [in Luurtsema ] cited the harmless error standard for direct appeal ... as the limiting mechanism for colorable but ultimately nonmeritorious claims.” The plurality in Luurtsema, however, was not discussing the issue of whether harmless error or the procedural default rule should be applied to Salamon claims in habeas proceedings when it made a passing reference to the harmless error standard. Rather, the plurality was considering the state's policy argument that “a finding of retroactivity would flood the court system with habeas petitioners seeking to overturn kidnapping convictions....” (Internal quotation marks omitted.) Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 769, 12 A.3d 817. In responding to that argument, the plurality cited State v. Hampton, supra, 293 Conn. at 463–64, 978 A.2d 1089, in which the defendant had raised a Salamon claim in his direct appeal, to make the point that there was no evidence that the court would be flooded with petitioners seeking new trials, but, instead, “courts [would] be able to dispose summarily of many cases where it is sufficiently clear from the evidence presented at trial that the petitioner was guilty of kidnapping, as properly defined, [and] that any error arising from a failure to instruct the jury in accordance with the rule in Salamon was harmless.” Luurtsema v. Commissioner of Correction, supra, at 769–70, 12 A.3d 817. As a consequence, the plurality's reference to harmless error in this completely different context cannot be taken as its considered view regarding the standard that should be applied in reviewing Salamon claims in habeas proceedings.
IV
Applying the procedural default rule in the present case, I would conclude that the petitioner has not demonstrated good cause for or actual prejudice from his failure to seek a Salamon -type instruction at trial or to raise the issue on direct appeal. This court has stated that “[t]he cause and prejudice test is designed to prevent full review of issues in habeas ... proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance....” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. at 567–68, 941 A.2d 248. In addition, “[b]ecause [c]ause and prejudice must be established conjunctively, [the court] may dispose of [the procedurally defaulted] claim if the petitioner fails to meet either prong.” (Internal quotation marks omitted.) Thorpe v. Commissioner of Correction, 73 Conn.App. 773, 780, 809 A.2d 1126 (2002).
With respect to the first prong of the test, the petitioner alleged in his habeas pleadings that his claim of an improper jury instruction was not procedurally defaulted because “futility provided him good cause for not previously raising the claim” and because he “lacked a reasonable basis for raising the ... claim at either the trial or appellate level based on a long line of consistently adverse case law, beginning with State v. Chetcuti, 173 Conn. 165 (1977), which adopted the definition of kidnapping that the petitioner was convicted under.” The petitioner also alleged that his “criminal trial and direct appeal were both decided before the Salamon decision in 2008, and he had no reason to believe that a challenge to the kidnapping instruction held any merit before that [decision].” Although the Appellate Court agreed with this reasoning; see Hinds v. Commissioner of Correction, supra, 151 Conn.App. at 854–55, 97 A.3d 986 ; I do not.
As previously explained, “[t]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 285 Conn. at 568, 941 A.2d 248. Thus, for example, “a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard.” (Internal quotation marks omitted.) Id.
Mindful of these principles, I do not believe that futility is a persuasive argument because Connecticut's decisional law interpreting the kidnapping statutes was not settled at the time of the petitioner's trial in 2002 and his direct appeal in 2004. In Salamon, this court observed that it “never [had] undertaken an extensive analysis of whether our kidnapping statutes warrant the broad construction that [the court had] given them.” State v. Salamon, supra, 287 Conn. at 524, 949 A.2d 1092. Justice Katz likewise explained in her concurring opinion in Luurtsema that “Salamon rested on grounds that never had been considered by this court. Not only was it the first time that this court examined the intent element of the kidnapping statutes and the first time that we examined the circumstances surrounding the statutes' enactment, but it also was the first time that this court considered the meaning of the statute en banc.... Our reexamination was prompted in part by an issue expressly left open in our prior decisions regarding whether the existing interpretation could lead to bizarre, and therefore legislatively unintended, results.” (Citation omitted.) Luurtsema v. Commissioner of Correction, supra, 299 Conn. at 786, 12 A.3d 817 (Katz, J., concurring). Accordingly, there was no reason for the petitioner to believe that it would have been futile to raise such a claim.
There also was a reasonable basis at the time of the petitioner's trial and direct appeal on which to challenge this court's interpretation of the kidnapping statutes because, even though the court had supported a broad interpretation of the statutes on a number of occasions over a lengthy period of time, defendants continued to challenge it, and at least two members of the court expressed contrary views in concurring and dissenting opinions issued around the time of the petitioner's trial and direct appeal in 2002 and 2004, respectively. See State v. Luurtsema, supra, 262 Conn. at 208–209, 211, 811 A.2d 223 (Katz, J., dissenting in part) (noting that, although kidnapping did not merge with sexual assault under Connecticut law, court had indicated that “there may be factual situations in which charging a defendant with kidnapping based upon the most minuscule movement would result in an absurd and unconscionable result,” such as when kidnapping is “integral or incidental to the crime of rape” [internal quotation marks omitted] ); State v. Niemeyer, 258 Conn. 510, 528, 529, 782 A.2d 658 (2001) (McDonald, C.J., concurring) (expressing view that kidnapping statute should apply only “to true kidnapping situations and not ... to crimes ... in which some confinement or asportation occurs as a subsidiary incident,” and that evidence of restraint by defendant in that case supported kidnapping conviction because “[t]he jury could find that restraint was not merely incidental to the assault” [internal quotation marks omitted] ); but see, e.g., State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983) (rejecting defendant's claim that court improperly denied request to charge jury that he could not be convicted on kidnapping count if jury found kidnapping was “ ‘integral or incidental’ ” to crime of rape because “[t]hat [was] not the law in this state”); State v. Briggs, 179 Conn. 328, 338, 426 A.2d 298 (1979) (rejecting defendant's request to adopt “merger doctrine” that would preclude prosecution for kidnapping that is “ ‘merely incidental’ ” to sexual assault), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980) ; State v. Chetcuti, supra, 173 Conn. at 168–69, 377 A.2d 263 (rejecting challenge to kidnapping statutes as unconstitutional on ground they can be applied to other criminal activity to which kidnapping is only incidental and subsidiary). Rather than view this history of continuing challenges to the court's interpretation of the kidnapping statutes as a reason to conclude that there was no reasonable basis to raise a Salamon claim or that such a claim would be futile, the petitioner should have understood the dissenting opinion of Justice Katz in 2002 and the concurring opinion of Chief Justice McDonald in 2001, in which they questioned this court's broad interpretation of the kidnapping statutes, as an invitation to raise the claim again in the hope that the court would revisit the issue and alter its interpretation, as it did in Salamon only a few years later. As this court has previously stated, “[t]he mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural default.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 218 Conn. at 422, 589 A.2d 1214, quoting Murray v. Carrier, supra, 477 U.S. at 486–87, 106 S.Ct. 2639. A habeas petitioner also “may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.” (Internal quotation marks omitted.) Johnson v. Commissioner of Correction, supra, 218 Conn. at 422, 589 A.2d 1214. I would therefore conclude that the petitioner did not establish good cause for failing to seek a Salamon type instruction at trial or for failing to raise a claim on direct appeal regarding the trial court's failure to give such an instruction, as other defendants had done.
In Correia v. Rowland, 263 Conn. 453, 820 A.2d 1009 (2003), this court also recognized the United States Supreme Court's holding in the context of procedural default that, “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable ... procedures.” (Internal quotation marks omitted.) Id., at 463, 820 A.2d 1009, quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Even if the present claim was a constitutional claim, however, the frequency with which prior defendants raised it or this court discussed it prior to or around the time of the trial and direct appeal of the petitioner in the present case clearly demonstrates that it is not a novel claim.
The majority asserts that “the dissenting justices ignore the ‘incidental to’ language in Salamon ” and “give no meaningful effect to the requirement that the additional restraint or asportation have ‘independent criminal significance....’ ” I disagree. In fact, it is the majority who does not appropriately examine the restraint in the present case in accordance with this court's instructions in Salamon. In Salamon, this court explained as follows: “Upon examination of the common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, we now conclude the following: 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.” State v. Salamon, supra, 287 Conn. at 542, 949 A.2d 1092. Accordingly, my analysis of whether the restraint used by the petitioner against the victim in the present case was necessary for the commission of the sexual assault is exactly what Salamon instructs.
Furthermore, my analysis of the facts in the present case is consistent with this court's prior case law. See, e.g., State v. Ward, supra, 306 Conn. at 738, 51 A.3d 970. In Ward, this court concluded that “the jury, which had been instructed on the applicable legal principles in accordance with Salamon, reasonably could have found that the defendant's confinement or movement of the victim was not merely incidental to the sexual assault.” Id., at 736, 51 A.3d 970. As grounds for our conclusion, we relied on the following facts: “The victim, who weighed a mere 100 pounds, testified that she could not escape because the defendant was twice her size and held her very tightly. By moving the victim away from the kitchen door, the defendant made the possibility of escape even more remote. From this testimony, it was reasonable for the jury to conclude that the defendant could have sexually assaulted the victim without threatening to kill her and without continuously holding the knife sharpening tool to her neck and, therefore, that the force used by the defendant exceeded the amount necessary to commit the sexual assault. It was also reasonable to infer that the defendant, by engaging in this conduct, intended to frighten and subdue the victim to prevent her from struggling, trying to escape or summoning assistance. In light of the evidence, the jury also reasonably could have concluded that the defendant increased the risk of harm to the victim by holding the pointed metal knife sharpening tool to her neck and by moving her away from the kitchen door, which not only made it less likely that she would escape, but also made it less likely that the crime would be detected.... Moreover, given the disparity in size and strength between the defendant and the victim, it was reasonable for the jury to conclude that the defendant did not need to move the victim from the kitchen in order to sexually assault her. If he intended to move her to a location that was more comfortable for him, he could have quickly moved her to the bedroom and onto the bed. Instead, he moved her from the kitchen to the bedroom, and ultimately onto the floor. Finally, although the incident lasted ten to fifteen minutes, the sexual assault itself lasted only two minutes.” (Citation omitted; footnote omitted.) Id., at 736–37, 51 A.3d 970. Ultimately, we concluded that “although the defendant did not confine the victim for a lengthy period of time or move her a significant distance, the facts and circumstances of the present case, considered as a whole, support the jury's determination that the restraint of the victim was not merely incidental to or an inherent part of the sexual assault. Our decision is not based on any single fact, but on the cumulative effect of the evidence adduced at trial.” (Footnote omitted.) Id., at 738, 51 A.3d 970.
Similarly, in the present case, the petitioner did not need to threaten to kill her or drag her to the secluded dark area behind the overgrown bush in order to assault her. Accordingly, I would conclude that the facts establish that the petitioner restrained the victim beyond that which was necessary for and incidental to the sexual assault and that such restraint has independent criminal significance.
In light of this conclusion, there is no need to address whether the petitioner satisfied the second prong of the test required under the procedural default rule. I nonetheless agree with Justice Eveleigh's thorough analysis of this issue in his dissenting opinion and with his conclusion that the petitioner did not demonstrate that he suffered actual prejudice because of the trial court's failure to give the jury a Salamon instruction.
For all of the foregoing reasons, I respectfully dissent.
EVELEIGH, J., with whom ZARELLA and ROBINSON, Js., join, dissenting.
I respectfully dissent. I respectfully disagree with the majority that the habeas court properly granted the petitioner, Walter Hinds, a new trial on the charge of kidnapping in the first degree. Specifically, I would conclude that the petitioner has not demonstrated actual prejudice because he has not shown that there is a substantial likelihood that the jury would not have found that the petitioner's restraint of the victim in the parking lot and subsequent removal to the woods constituted a crime of independent legal significance. I also agree with and join Justice Zarella's dissent. In particular, I agree with Justice Zarella that the respondent, the Commissioner of Correction, “did not raise a procedural default defense” in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 774, 12 A.3d 817 (2011), and that, therefore, that case “provides no guidance as to the applicability of the procedural default rule when a petitioner who has not requested a Salamon 1 instruction at trial or raised the issue on direct appeal makes a Salamon claim in a subsequent habeas proceeding.” (Footnote added.) I also agree with Justice Zarella that, because the petitioner himself does not “suggest that the procedural default rule should be replaced by an entirely different standard,” it is “improper for the majority to consider [this] issue in the present case without the input of the parties who appealed to this court.”
In State v. Salamon, 287 Conn. 509, 542, 949 A.2d 1092 (2008), this court concluded 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.” In Salamon, this court cautioned that its holding did “not represent a complete refutation of the principles established [in its] prior kidnapping jurisprudence.” Id., at 546, 949 A.2d 1092. This court further observed that, in order to prove a kidnapping, “the state is not required to establish any minimum period of confinement or degree of movement.” Id. The court noted, however, that when the “confinement or movement is merely incidental to the commission of another crime ... the confinement or movement must have exceeded that which was necessary to commit the other crime.” Id.
This court explained as follows: “[I]n other words ... the test ... to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the confinement, movement, or detention was merely incidental to the accompanying felony or whether it was significant enough, in and of itself, to warrant independent prosecution.” (Internal quotation marks omitted.) Id., at 547, 949 A.2d 1092. “[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.” Id.
In addition, the Salamon court listed a number of factors to be considered by the fact finder, in its determination of whether a separate crime existed, including the nature and duration of the victim's movement or confinement by a defendant, whether the movement or confinement occurred during the commission of a separate offense, whether the restraint was inherent in the nature of the separate offense, whether the restraint prevented the victim from summoning assistance, whether the restraint reduced the risk of detection, and whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense. Id., at 548, 949 A.2d 1092. On the basis of my review of these factors annunciated by this court in Salamon, I cannot conclude that, had the jury in the present case received the instruction in accordance with Salamon, there is a substantial likelihood that it would not have convicted the petitioner for kidnapping in the first degree. Accordingly, I would conclude that the petitioner has failed to meet his burden of establishing actual prejudice in this case. Therefore, I respectfully dissent.
I agree with the facts and procedural history set forth by the majority. I disagree with the majority that the petitioner's Salamon claim is not subject to the doctrine of procedural default. Instead, I agree with the Appellate Court that the procedural default rule should apply in the present case. “In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure.” Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014).
“In Connecticut, the procedural default rule set forth in [Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) ], was adopted and applied to state habeas corpus petitions in Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991). Since Johnson, a habeas petitioner is barred from asserting a claim in a habeas petition that could have been raised in the underlying criminal proceeding unless he is able to demonstrate good cause for having failed to raise such a claim and actual prejudice resulting from the failure to raise the claim in the criminal proceedings.” Hinds v. Commissioner of Correction, supra, 151 Conn.App. at 852–53, 97 A.3d 986.
The majority's conclusion that the petitioner's claim in the present case is not subject to the doctrine of procedural default effectively overrules this court's jurisprudence in Johnson and its progeny. I disagree with such an approach, particularly because no party has asked us to do so in the present case.
Accordingly, I would conclude that the petitioner in the present case “must shoulder the burden of showing, not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” (Emphasis omitted.) United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). I further agree with the majority that “the petitioner would have to demonstrate that, with the proper instruction, there was a substantial likelihood that the jury would not have found the petitioner guilty of the crime of which he was convicted.” (Internal quotation marks omitted.) Therefore, the outcome of this collateral proceeding depends on whether, if the jury had been given the charge now required by Salamon, there is a substantial likelihood that it would have convicted the petitioner of kidnapping in the first degree.
Turning to this question, we look to Salamon for guidance because, in Salamon, this court interpreted the intent element of the offense and found that “the proper inquiry for a jury evaluating a kidnapping charge is not whether the confinement or movement of the victim was minimal or incidental to another offense against the victim but, rather, whether it was accomplished with the requisite intent, that is, to prevent the victim's liberation.” State v. Salamon, supra, 287 Conn. at 532, 949 A.2d 1092. The evidence need not establish that the restraint was disconnected from the sexual assault. Instead, the evidence must show that the perpetrator intended to restrain the victim beyond what was necessary to commit the sexual assault. Id., at 542, 949 A.2d 1092.
In the present case, the state clearly presented sufficient evidence from which a reasonable jury could find that the petitioner intended “to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.” Id.; see also State v. Ward, 306 Conn. 718, 737–38, 51 A.3d 970 (2012) (sufficient evidence existed to establish requisite intent where defendant moved “the victim away from the kitchen door to the more secluded bedroom”). In this collateral proceeding, the only relevant evidence presented in the trial transcript shows that the petitioner's restraint of the sixteen year old victim was not “merely incidental to the accompanying felony [but was, rather] significant enough, in and of itself, to warrant independent prosecution.” (Internal quotation marks omitted.) State v. Salamon, supra, 287 Conn. at 547, 949 A.2d 1092.
At the conclusion of the criminal trial, the jury credited the state's evidence and found the petitioner guilty of kidnapping beyond a reasonable doubt. That evidence showed that the petitioner identified the victim and then pursued her. When she noticed him—and realized the danger of the situation—the young woman panicked and began running. Unfortunately, the petitioner caught her. He then covered her mouth to stop her from screaming and summoning help. Indeed, he threatened to kill her if she renewed her screaming. Under these circumstances, it is more than reasonable to infer that the petitioner, “by engaging in this conduct, intended to frighten and subdue the victim to prevent her from struggling, trying to escape or summoning assistance.” State v. Ward, supra, 306 Conn. at 736, 51 A.3d 970. Next, while still in the parking lot, the petitioner knocked the victim to the pavement.2 He could have committed the intended sexual assault at this moment. Instead, he chose to drag her across the parking lot. I disagree with the majority's analysis that this was a “continuous, uninterrupted course of conduct....” Once the petitioner knocked the victim to the ground and restrained her, he could have accomplished the sexual assault, but instead he dragged the victim into the woods and sexually assaulted her.
The majority states that “the essential fact is the movement of [the victim].” I agree insofar as an analysis of the sexual assault is necessary. In my view, the kidnapping had already occurred when the victim was restrained and knocked down in the parking lot. The majority further states that the victim's “asportation from the spot where she was grabbed to the site of the sexual assault, however, appears to have been a matter of yards and accomplished in a matter of seconds.” In my view, however, this statement does not pay sufficient deference to one of the key elements of Salamon which is that “the state is not required to establish any minimum period of confinement or degree of movement.” State v. Salamon, supra, 287 Conn. at 546, 949 A.2d 1092. Therefore, the exact distance or degree of confinement is not essential to my analysis. Furthermore, the distance is not even among the factors this court identified as appropriate considerations in Salamon. 3 In the present case, only after the petitioner had dragged the victim by her legs into the woods did he commence his sexual assault. It was at that point that the restraint “merely incidental to and necessary for” the commission of the sexual assault began. Id., at 542, 949 A.2d 1092. That restraint commenced when he “sat on her chest with his feet on the outside of her arms and instructed [the victim] to open her mouth.” State v. Hinds, 86 Conn.App. 557, 559, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005). The petitioner could have sexually assaulted the victim in the parking lot when he first saw her and ultimately subdued her. When she became suspicious, she ran. The petitioner chased, restrained, and threatened her. He delayed the sexual assault. He then threw her to the ground. After she lay helpless on the pavement, he dragged her across the parking lot and into a secluded location. It was only after he had transported her to this place, hidden in a dark area behind a large overgrown bush, that he imposed the restraint incidental to and necessary to accomplish the assault.4 In moving the victim to this
location, the petitioner increased the odds of the following: (1) that the victim would suffer injuries from being dragged across the hard surface of the pavement; (2) that any cries for help would not be heard by others; (3) that the victim would be further terrorized by the isolation; (4) that she would not be visible to any one passing by; and (5) that the petitioner could avoid detection. In other words, his movement of the victim “not only made it less likely that she would escape, [it] also made it less likely that the crime would be detected.” State v. Ward, supra, 306 Conn. at 737, 51 A.3d 970. Any other interpretation of the evidence, which has already been credited by the jury that found him guilty beyond a reasonable doubt, would result in granting the petitioner immunity for chasing the victim, halting her screams for help, threatening her life, knocking her to the ground, dragging her across a parking lot and inflicting injuries.
I further disagree with the majority's contention that “[t]here is no evidence that the risk of harm to [the victim] was made appreciably greater by the asportation in and of itself.” Instead, I would conclude that a reasonable jury could infer that the very act of asportation of the victim constituted a risk of physical harm. In my view, no reasonable jury would find that the petitioner's actions merely were incidental or necessary to the commission of the sexual assault. On the basis of the evidence presented to the jury and the habeas court, the petitioner has failed to demonstrate that he suffered an “actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” (Emphasis omitted.) United States v. Frady, supra, 456 U.S. at 170, 102 S.Ct. 1584.
Moreover, a consideration of the factors enumerated by this court in Salamon, which are important to determining whether the kidnapping constitutes a crime of independent legal significance, further supports my position. The amount of time that elapsed during the confinement and the length of asportation are not essential to the state's case. First, the nature and duration of the victim's confinement was distinct from the sexual assault. The confinement occurred in the parking lot, while the sexual assault took place in the woods. Second, the movement or confinement did not occur during the commission of the sexual assault, but prior thereto. The victim was pushed to the ground and restrained in the parking lot. Subsequently, she was dragged by her legs across the parking lot to the woods. Third, the restraint in the parking lot was not inherent to the sexual assault in the woods. A separate restraint occurred in the woods. Fourth, the restraint certainly prevented the victim from summoning assistance. Fifth, the restraint reduced the petitioner's risk of detection because he dragged the victim from the illuminated parking lot to the darkness of the woods. I do not agree with the majority that “[a]lthough that movement took [the victim] from the lit parking lot to the adjacent dark ground by a bush, an act that undoubtedly reduced the risk of detection in one regard, it also brought [the victim] in very close proximity to an occupied residence in the lot adjacent to the parking lot.” The essential point is that he had already restrained the victim in the parking lot. I would conclude that a reasonable jury could have found that the petitioner removed the victim from the lit parking lot to the darkness of the woods to avoid detection. Sixth, the restraint created a significant danger and increased the victim's risk of harm because the petitioner threatened to kill the victim and dragged her by the legs across the pavement of the parking lot. Indeed, the act of asportation itself certainly increased the risk of harm to the victim. A review of these factors demonstrates that the evidence in the present case established that the confinement and movement of the victim was not incidental to the assault, but was accomplished so as to prevent the victim's liberation.
The majority asserts that “the dissenting justices do not recognize that the degree and nature of the restraint or asportation bears on the ultimate question—the perpetrator's intent in taking these actions.” (Emphasis in original.) I disagree. Salamon instructs that a number of factors are appropriate in making the ultimate determination of whether the confinement or movement of the victim was accomplished with the intent to prevent the victim's liberation. See State v. Salamon, supra, 287 Conn. at 542, 949 A.2d 1092. Indeed, the majority ignores these factors.
On the basis of the foregoing, I would conclude that all of the Salamon factors have been satisfied and that the petitioner has failed to prove that there is a substantial likelihood that the jury would not have found the petitioner guilty of kidnapping if it had been instructed pursuant to Salamon. Indeed, it is difficult to conceive that anyone could conclude that a separate offense, independent of the sexual assault, had not occurred when the petitioner restrained the victim in the parking lot. Certainly, if the sexual assault had never occurred, the petitioner's actions constituted the independent crime of kidnapping.
It is helpful to compare the present case to a few cases wherein this court determined that the defendant was entitled to a new trial, under Salamon, because a reasonable jury could conclude that the conduct alleged to be a kidnapping could be incidental to either a sexual assault or an assault. First, in Salamon, wherein the defendant had grabbed the victim on the back of the neck, causing her to fall onto the steps at a train station, held her down by her hair, punched the victim in the mouth and attempted to thrust his fingers down her throat while she was screaming, this court reversed the kidnapping conviction and remanded for a new trial. State v. Salamon, supra, 287 Conn. at 513–15, 949 A.2d 1092. Second, in State v. Sanseverino, 291 Conn. 574, 577–81, 969 A.2d 710 (2009), the court held that, upon reconsideration, the state could retry the defendant on the charge of kidnapping when the defendant had followed the victim to the back room of a bakery, grabbed her by her shoulders and pushed her against a wall and a metal shelving unit and then sexually assaulted her. Finally, in State v. DeJesus, 288 Conn. 418, 422–23, 953 A.2d 45 (2008), the defendant had sexually assaulted the victim on two separate occasions in two rooms of a supermarket. This court ordered a new trial so that the trial court could instruct the jury pursuant to Salamon. Id., at 428, 953 A.2d 45. These cases are distinguishable from the present case because, unlike Salamon, Sanseverino and DeJesus, in the present case, there is a clearly defined separate incident unrelated to the ultimate sexual assault, and the petitioner removed the victim from the point of initial restraint in order to avoid detection. In both DeJesus and Sanseverino, the sexual assaults took place in a confined area and there was no evidence of any asportation. In Salamon, there was no movement from the point of the initial attack. In all of those previous cases, the issue was solely whether the amount of restraint exercised was incidental to the assaults or whether the length of the restraint went beyond the time necessary to commit the assaults. In my view, the present case is not a close question, but rather represents a fact pattern in which no reasonable jury could conclude that the initial restraint was incidental to the sexual assault.
In reaching this conclusion, however, this court explicitly stated that “a juror reasonably could find that the defendant's restraint of the victim was not merely incidental to his assault of the victim” noting, in particular, that “[t]he victim testified that the defendant, after accosting her, forcibly held her down for five minutes or more.” (Emphasis added.) State v. Salamon, supra, 287 Conn. at 549–50, 949 A.2d 1092.
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A review of cases from other jurisdictions in which courts have found that there is sufficient evidence to support a separate conviction for kidnapping bolsters my conclusion that the petitioner has failed to demonstrate that there is a reasonable probability that, but for the lack of a Salamon instruction, the result of the trial would have been different. See, e.g., Yearty v. State, 805 P.2d 987, 993 (Alaska App.1991) (defendant's restraint of victim “went significantly beyond that which was merely incidental to the sexual assault” where defendant pulled victim off of bike path, “dragged him to a secluded area several hundred feet away, and there held him captive for almost an hour”); State v. Gordon, 161 Ariz. 308, 316, 778 P.2d 1204 (1989) (affirming consecutive sentences on kidnapping and sexual assault charges because “the manner in which [the defendant] committed the kidnapping added to the victim's suffering and increased her harm or risk of harm beyond that inherent in the ultimate crime”); Lee v. State, 326 Ark. 529, 531, 932 S.W.2d 756 (1996) (affirming convictions for rape and kidnapping convictions where defendant began to follow victim, then grabbed victim around her neck while she was on public sidewalk and “dragged her approximately one city block to the back of the school building where there was no light” where he raped her); People v. Robertson, 208 Cal.App.4th 965, 986–97, 146 Cal.Rptr.3d 66 (2012) (affirming defendant's kidnapping conviction where “record contain[ed] substantial evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that the movement was more than merely incidental and increased the risk of harm above and beyond that inherent in the crime of rape”); People v. Johnson, 389 Ill.Dec. 496, 26 N.E.3d 586, 589–90 (Ill.App.) (affirming conviction for kidnapping where the defendant forcibly moved victim from sidewalk to vacant lot, then to area between two garages off of alley), appeal denied, 389 Ill.Dec. 496, 26 N.E.3d 586 (Ill.2015). Although in these cases, the courts were considering whether there was sufficient evidence to support a separate kidnapping conviction, they demonstrate that the petitioner in the present case has not met his burden of proving actual prejudice.
In the present case, the petitioner has failed to demonstrate that he suffered actual prejudice as a result of the trial court's failure to instruct the jurors, pursuant to State v. Salamon, supra, 287 Conn. at 546, 949 A.2d 1092, that a restraint that is “merely incidental to the commission of another crime” could not serve as the basis of a kidnapping conviction. The petitioner cannot satisfy his burden of demonstrating that it is reasonably likely that the jury would have acquitted him of the kidnapping charge if given the Salamon instruction. Indeed, the petitioner has failed to prove any of the Salamon factors in his favor. Instead, an analysis of all of the factors demonstrates that the petitioner committed a crime of independent legal significance when, prior to sexually assaulting this sixteen year old, he also increased the risk of harm to her and then dragged her into a secluded location to avoid detection. In my view, the petitioner has not met his burden of demonstrating actual prejudice and, therefore, I would conclude that the judgment of the Appellate Court should be reversed and that the case should be remanded to that court with direction to reverse the judgment of the habeas court and to remand the case to the habeas court with direction to deny the petition for a writ of habeas corpus.
Therefore, I respectfully dissent.