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comparing cases in which this court and Appellate Court concluded that conduct did, or did not, as matter of law, have independent criminal significance
Summary of this case from Banks v. Comm'r of Corr.Opinion
AC 39830
08-07-2018
Mark BANKS v. COMMISSIONER OF CORRECTION
Pamela S. Nagy, assistant public defender, for the appellant (petitioner). Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).
Pamela S. Nagy, assistant public defender, for the appellant (petitioner).
Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellee (respondent).
DiPentima, C.J., and Keller and Prescott, Js.
DiPENTIMA, C.J.
The dispositive issue in this appeal is whether the absence of a jury instruction required by our Supreme Court's seminal decision in State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), and subject to a retroactive application in a subsequent collateral proceeding; see Luurtsema v. Commissioner of Correction , 299 Conn. 740, 12 A.3d 817 (2011) ; constituted harmless error. See Hinds v. Commissioner of Correction , 321 Conn. 56, 136 A.3d 596 (2016). This court recently articulated the issue as follows: "[A] defendant who has been convicted of kidnapping may collaterally attack his kidnapping conviction on the ground that the trial court's jury instructions failed to require that the jury find that the defendant's confinement or movement of the victim was not merely incidental to the defendant's commission of some other crime or crimes." Wilcox v. Commissioner of Correction , 162 Conn. App. 730, 736, 129 A.3d 796 (2016). Further, a reviewing court must conclude, beyond a reasonable doubt, that the absence of the Salamon instruction did not contribute to the kidnapping conviction. White v. Commissioner of Correction , 170 Conn. App. 415, 428, 154 A.3d 1054 (2017).
In this case, the respondent, the Commissioner of Correction, bears the arduous burden of demonstrating that the omission of an instruction on incidental restraint did not contribute to the verdict. See, e.g., id., at 428–29, 154 A.3d 1054. Accordingly, our task is not to determine whether sufficient evidence existed in the record to support a conviction of kidnapping or "whether a jury likely would return a guilty verdict if properly instructed; rather, the test is whether there is a reasonable possibility that a properly instructed jury would reach a different result. " (Emphasis added.) State v. Flores , 301 Conn. 77, 87, 17 A.3d 1025 (2011). We conclude that, under the facts and circumstances of this case, as well as the analysis established in our appellate precedent, the absence of the Salamon instruction was not harmless beyond a reasonable doubt. Accordingly, we reverse the judgment of the habeas court denying the petitioner's petition for a writ of habeas corpus, and remand the case with direction to vacate his kidnapping convictions and to order a new trial with respect to those charges.
The petitioner, Mark Banks, appeals from the judgment of the habeas court denying his amended petition for a writ of habeas corpus. On appeal, he claims that the decision of the habeas court violated his due process right to a fair trial pursuant to the fifth and fourteenth amendments to the United States constitution. Specifically, he contends that the court improperly determined that the lack of a jury instruction in his underlying criminal case concerning the intent and conduct necessary to find the petitioner guilty of kidnapping in accordance with State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, was harmless beyond a reasonable doubt. We agree with the petitioner.
The following facts and procedural history are relevant to this appeal. In 1997, following a jury trial, the petitioner was convicted of four counts of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (B), four counts of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4), and two counts of criminal possession of a pistol or revolver in violation of General Statutes § 53a-217c. The trial court sentenced the petitioner to a total effective sentence of twenty-five years incarceration consecutive to any sentence the petitioner was presently serving.
General Statutes § 53a-92 provides in relevant part: "(a) 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 ... (B) accomplish or advance the commission of a felony ...."
The petitioner was convicted under two separate criminal cases, docket numbers CR-96-0161628-T and CR-96-0094045-T, that were consolidated for trial.
The petitioner received a total effective sentence of fifteen years incarceration in CR-96-0161628-T. In CR-96-0094045-T, the petitioner was sentenced to a total effective sentence of ten years incarceration to be served consecutively to the sentence imposed in CR-96-0161628-T.
At oral argument before this court, the respondent asserted, and the petitioner's counsel concurred, that at the time of his convictions, the petitioner was serving a sentence imposed in an unrelated case.
In 2000, following a direct appeal, this court affirmed the judgments of conviction, setting forth the following facts that a reasonable jury could have found concerning the petitioner's crimes: "Michael Kozlowski and Howard Silk were working [on the evening of August 30, 1995] at the Bedding Barn store in Newington. The [petitioner], posing as a customer, entered the store shortly before closing at 9 p.m.; there were no other customers in the store. Kozlowski approached the [petitioner] and began to show him some king-size beds. The [petitioner] pulled a large silver gun from a bag he was holding. The gun had a round cylinder. The [petitioner], while pointing the gun at Silk, ordered Kozlowski to open the cash register. After taking money from the register, the [petitioner] requested the store's bank bag or safe. The [petitioner] then asked Silk and Kozlowski for the money from their wallets. He then took money from Silk, but not from Kozlowski. Silk and Kozlowski were then locked in the bathroom with something propped against the door and told not to leave or they would be shot. A short time later, when Silk and Kozlowski heard the doorbell in the store ring, they assumed the robber had left, pushed open the bathroom door and called the police." State v. Banks , 59 Conn. App. 112, 116, 755 A.2d 951, cert. denied, 254 Conn. 950, 762 A.2d 904 (2000).
"Kelly Wright was working [on the evening of September 13, 1995] at the Bedding Barn store in Southington. Shortly before 9 p.m., while Wright's roommate, Idelle Feltman, was waiting to take her home, the [petitioner] and an unknown woman, posing as customers, entered the store. The [petitioner] pulled a gun from a bag he was carrying, held it to Feltman's temple, and asked her to open the cash register and to give him money. The [petitioner] then requested the bank bag, which Feltman gave him. The [petitioner] then told Wright and Feltman to get into the bathroom and lock themselves in. Shortly thereafter, Feltman and Wright heard the door buzzer and surmised that the [petitioner] had left the store. They exited the bathroom and called the police." Id., at 116–17, 755 A.2d 951.
On January 13, 2014, the petitioner filed the petition for a writ of habeas corpus underlying the present appeal, which he amended on August 12, 2016, alleging a violation of his due process right to a fair trial. In his amended petition, the petitioner challenged his two kidnapping convictions on the ground that the instructions given to the jury were not in accordance with State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092. On October 14, 2016, the respondent filed his return to the amended petition. On October 17, 2016, both sides stipulated to a trial on the papers. On October 20, 2016, the court issued a memorandum of decision denying the petition. In its memorandum of decision, the court set forth a detailed version of events based on the transcript from the petitioner's criminal trial. The habeas court concluded that the respondent demonstrated that the absence of a Salamon instruction at the petitioner's criminal trial constituted harmless error because the "movements and confinements [of the employees] were perpetrated after the crimes of robbery were committed and cannot conceivably be regarded as coincidental with or necessary to complete the substantive crimes of robbery. Depriving someone of their freedom of movement by imprisoning them in a bathroom subsequent to acquiring their money, although convenient for the robber, is not inherent in the crime of robbery. It is crystal clear that the petitioner's intent and purpose for locking up his robbery victims was to postpone their summoning of assistance and reporting of the crime to police, thus facilitating the petitioner's escape from the scene and delaying detection of his crime, identity, and/or whereabouts. Also, the petitioner extended the period of infliction of duress and distress for the victims by restraining them beyond the time of fulfillment of his quest, i.e., seizure of cash." (Emphasis in original.) The habeas court subsequently granted the petitioner's certification to appeal on October 27, 2016. This appeal followed.
In its decision, the habeas court noted that the respondent had conceded that "had the holding of State v. Salamon , supra, [287 Conn. at 509, 949 A.2d 1092 ], prevailed in 1997, the petitioner would have been entitled to a jury instruction conforming to that holding." The issue of whether a Salamon instruction was required at the petitioner's criminal trial is not part of our consideration or analysis in this case. See, e.g., State v. Jordan , 129 Conn. App. 215, 220, 19 A.3d 241 (where state failed to argue that Salamon did not apply, reviewing court need only determine whether error was harmful to defendant), cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011). We also note that "in State v. Fields , 302 Conn. 236, 24 A.3d 1243 (2011), our Supreme Court indicated that whenever kidnapping and another substantive offense are charged, a Salamon instruction ordinarily must be given." White v. Commissioner of Correction , supra, 170 Conn. App. at 425, 154 A.3d 1054 ; cf. Pereira v. Commissioner of Correction , 176 Conn. App. 762, 777–78, 171 A.3d 105 (Salamon instruction not required in case where kidnapping had been completed, and therefore was not incidental to murder of victim), cert. denied, 327 Conn. 984, 175 A.3d 43 (2017).
On appeal, the petitioner challenges certain factual findings made by the habeas court. Under the procedural circumstances of this case, we note our standard of review would differ from the usual standard due to the absence of live witnesses in the habeas trial. "Although we generally review a trial court's factual findings under the clearly erroneous standard, when a trial court makes a decision based on pleadings and other documents, rather than on the live testimony of witnesses, we review its conclusions as questions of law. Morton Buildings, Inc. v. Bannon , 222 Conn. 49, 53–54, 607 A.2d 424 (1992) (In this case, the trial court's determinations were based on a record that consisted solely of a stipulation of facts, written briefs, and oral arguments by counsel. The trial court had no occasion to evaluate the credibility of witnesses or to assess the intent of the parties in light of additional evidence first presented at trial. The record before the trial court was, therefore, identical with the record before this court. In these circumstances, the legal inferences properly to be drawn from the parties' definitive stipulation of facts raise questions of law rather than of fact.); Giorgio v. Nukem, Inc. , 31 Conn. App. 169, 175, 624 A.2d 896 (1993) ( [i]f ... [t]he trial court's conclusions as to intent were based not on such factors as the credibility of witnesses, or on the testimony of live witnesses as to the meaning of documents or as to circumstances surrounding the execution of those documents ... but were instead based on the intent expressed in the contract itself and the affidavits submitted with the motion for summary judgment considered in the light of their surrounding circumstances ... [t]hen the legal inferences to be drawn from the documents raise questions of law rather than of fact ...)." (Internal quotation marks omitted.) State v. Lewis , 273 Conn. 509, 516–17, 871 A.2d 986 (2005) ; see also State v. Kallberg , 326 Conn. 1, 17–18, 160 A.3d 1034 (2017) ; C.R. Klewin Northeast, LLC v. Bridgeport , 282 Conn. 54, 87, 919 A.2d 1002 (2007) (when trial court makes decision based on pleadings on other documents, rather than on live testimony of witnesses, appellate court reviews its conclusions as questions of law and employs plenary review); cf. State v. Lawrence , 282 Conn. 141, 155–57, 920 A.2d 236 (2007) (improper for appellate court to supplement credibility determinations of fact finder, regardless of whether fact finder relied on cold printed record to make such determinations).
Thus, were we to review the factual findings challenged by the petitioner, we would employ the plenary, rather than the clearly erroneous, standard of review. We need not, however, determine whether the habeas court made factual findings that were improper as a matter of law. Instead, we conclude that the habeas petition should have been granted because the respondent failed to demonstrate that the absence of the Salamon instruction was harmless beyond a reasonable doubt regardless of whether the challenged findings were proper.
The petitioner claims that the habeas court improperly determined that the lack of a jury instruction in his underlying criminal case concerning the intent and conduct necessary to find the petitioner guilty of kidnapping in accordance with State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, was harmless beyond a reasonable doubt. We agree.
The determination of whether the trial court's failure to provide a Salamon instruction constitutes harmless error is a question of law subject to plenary review. Farmer v. Commissioner of Correction , 165 Conn. App. 455, 459, 139 A.3d 767, cert. denied, 323 Conn. 905, 150 A.3d 685 (2016) ; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 65, 136 A.3d 596 ; Nogueira v. Commissioner of Correction , 168 Conn. App. 803, 814, 149 A.3d 983, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016).
A review of the evolution of our kidnapping jurisprudence will facilitate the analysis in this case. Following the petitioner's criminal trial and direct appeal, our Supreme Court issued several significant decisions with respect to the crime of kidnapping. See State v. Salamon , supra, 287 Conn. at 542–550, 949 A.2d 1092 ; see also State v. DeJesus , 288 Conn. 418, 430–34, 438, 953 A.2d 45 (2008) ; State v. Sanseverino , 287 Conn. 608, 620–26, 949 A.2d 1156 (2008), overruled in part by State v. DeJesus , supra, at 437, 953 A.2d 45, and superseded in part after reconsideration by State v. Sanseverino , 291 Conn. 574, 969 A.2d 710 (2009).
"In Salamon , we reconsidered our long-standing interpretation of our kidnapping statutes, General Statutes §§ 53a-91 through 53a-94a.... The defendant had assaulted the victim at a train station late at night, and ultimately was charged with kidnapping in the second degree in violation of § 53a-94, unlawful restraint in the first degree, and risk of injury to a child.... At trial, the defendant requested a jury instruction that, if the jury found that the restraint had been incidental to the assault, then the jury must acquit the defendant of the charge of kidnapping.... The trial court declined to give that instruction....
"[W]e [thus] reexamined our long-standing interpretation of the kidnapping statutes to encompass even restraints that merely were incidental to and necessary for the commission of another substantive offense, such as robbery or sexual assault.... We ultimately concluded that [o]ur legislature ... 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 ....
"We explained in Salamon that a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that had 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. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury. For purposes of making that determination, the jury should be instructed to consider the various relevant factors, including the nature and duration of the victim's movement or confinement by the 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." (Citations omitted; emphasis added; internal quotation marks omitted.) State v. Hampton , 293 Conn. 435, 459–60, 988 A.2d 167 (2009) ; see also White v. Commissioner of Correction , supra, 170 Conn. App. at 423–24, 154 A.3d 1054 ; Wilcox v. Commissioner of Correction , supra, 162 Conn. App. at 742, 129 A.3d 796.
Next, in Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 742, 12 A.3d 817, our Supreme Court considered whether its decisions in State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, State v. Sanseverino , supra, 287 Conn. at 608, 949 A.2d 1156, and State v. DeJesus , supra, 288 Conn. at 418, 953 A.2d 45, applied retroactively to collateral attacks on final judgments. It ultimately concluded that "when an appellate court provides a new interpretation of a substantive criminal statute, an inmate convicted under a prior, more expansive reading of the statute presumptively will be entitled to the benefit of the new interpretation on collateral attack. We decline, however, the petitioner's invitation to adopt a per se rule in favor of full retroactivity." Id., at 760, 12 A.3d 817 ; see also Farmer v. Commissioner of Correction , supra, 165 Conn. App. at 459–460, 139 A.3d 767 ; Eric M. v. Commissioner of Correction , 153 Conn. App. 837, 844–45, 108 A.3d 1128 (2014), cert. denied, 315 Conn. 915, 106 A.3d 308 (2015) ; Epps v. Commissioner of Correction , 153 Conn. App. 729, 735, 104 A.3d 760 (2014) ("[o]ur Supreme Court later ruled that its holding in Salamon is retroactive"), appeal dismissed, 327 Conn. 482, 175 A.3d 558 (2018) (certification improvidently granted).
Finally, in Hinds v. Commissioner of Correction , supra, 321 Conn. at 61, 136 A.3d 596, our Supreme Court held that the procedural default rule does not apply to claims that the trial court failed to instruct the jury in accordance with State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092, in cases rendered final before that decision was issued. The court also addressed the proper standard for determining when the failure to provide the jury with a Salamon instruction requires a new trial. Id., at 76, 136 A.3d 596. It reasoned that the failure to instruct the jury in accordance with Salamon is considered to be an omission of an essential element of kidnapping, and thus, rises to the level of constitutional error. Id., at 78, 136 A.3d 596."[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 ...." (Internal quotation marks omitted.) Id., at 77–78, 136 A.3d 596 ; see also Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 770, 12 A.3d 817 ; White v. Commissioner of Correction , supra, 170 Conn. App. at 427–28, 154 A.3d 1054 ; Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 812–13, 149 A.3d 983 ; see generally State v. Fields , 302 Conn. 236, 245–46, 24 A.3d 1243 (2011) (on direct appeal, jury instruction that omits essential element from charge constitutes harmless error only if reviewing court concluded, beyond reasonable doubt, that omitted element was uncontested and supported by overwhelming evidence such that jury verdict would have been same absent error); State v. Flores , supra, 301 Conn. at 83, 17 A.3d 1025 (on direct appeal, test for determining whether constitutional error in jury instruction is harmless is whether it appears beyond reasonable doubt that error complained of did not contribute to verdict). We emphasize that to prevail on
After oral argument, we stayed the present appeal, sua sponte, until the final disposition of Epps v. Commissioner of Correction , supra, 153 Conn. App. at 729, 104 A.3d 760. Our Supreme Court granted certification in Epps to determine, inter alia, "[w]hether ... in a collateral proceeding, where the petitioner claims that the trial court erred by omitting an element of the criminal charge in its final instructions to the jury, is harm measured in accordance with Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), or is harm measured in accordance with Neder v. United States , 527 U.S. 1, 15, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ?" Epps v. Commissioner of Correction , 323 Conn. 901, 150 A.3d 679 (2016).
Under the Brecht standard, reversal of a criminal conviction is warranted when error at the petitioner's underlying criminal trial had a "substantial and injurious effect or influence in determining the jury's verdict." (Internal quotation marks omitted.) Brecht v. Abrahamson , supra, 507 U.S. at 637, 113 S.Ct. 1710. Under the Neder standard, a petitioner is not entitled to habeas relief if "a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless." Neder v. United States , supra, 527 U.S. at 17, 119 S.Ct. 1827.
Our Supreme Court dismissed Epps because "[t]he respondent had squarely argued to the habeas court that the petition should be assessed under the harmless beyond a reasonable doubt standard. The respondent never argued in the alternative that a higher standard of harmfulness should apply to collateral proceedings even if the petitioner's claim was not subject to procedural default, despite federal case law applying a higher standard since 1993." Epps v. Commissioner of Correction , 327 Conn. 482, 485, 175 A.3d 558 (2018). In the present case, at the habeas trial, there was no request that the Brecht standard apply.
Following the release of Epps v. Commissioner of Correction , supra, 327 Conn. at 482, 175 A.3d 558, we afforded the parties an opportunity to file supplemental briefs addressing the question of the appropriate standard for assessing harm. The parties filed supplemental briefs with this court on February 2, 2018. The petitioner contends that we should follow the path of our Supreme Court in Hinds v. Commissioner of Correction , supra, 321 Conn. at 56, 136 A.3d 596, and Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817, and apply the harmlessness beyond a reasonable doubt standard. The respondent claims that the petitioner's claim fails under either standard or, in the alternative, this court should adopt the Brecht standard.
"It is axiomatic that, [a]s an intermediate appellate court, we are bound by Supreme Court precedent and are unable to modify it .... [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them.... [I]t is not within our province to reevaluate or replace those decisions." (Internal quotation marks omitted.) State v. Madera , 160 Conn. App. 851, 861–62, 125 A.3d 1071 (2015). Accordingly, we will employ the test set forth in Hinds v. Commissioner of Correction , supra, 321 Conn. at 56, 136 A.3d 596, and Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817.
his habeas claim that the absence of a Salamon instruction did not constitute harmless error, the petitioner is not required to establish that there was insufficient evidence to convict him or that a properly instructed jury likely would find him guilty. Hinds v. Commissioner of Correction , supra, 321 Conn. at 85, 136 A.3d 596 ; State v. Flores , supra, 301 Conn. at 87, 17 A.3d 1025.
We now turn to the petitioner's claim, and the dispositive issue, that is, whether the respondent failed to establish that the absence of a Salamon instruction constituted harmless error. Specifically, the petitioner argues that, on the basis of the evidence presented at his criminal trial, "it would have been reasonable for jurors to conclude that the brief restraint that occurred during the commission of the robbery was incidental to the robbery, and therefore, was not a kidnapping. Because the petitioner was deprived of the opportunity of having the jurors consider this issue, which was susceptible to more than one interpretation, the respondent did not prove the error was harmless beyond a reasonable doubt."
The dissent centers its analysis on State v. Salamon , supra, 287 Conn. at 509, 949 A.2d 1092. In that case, our Supreme Court reconsidered the interpretation of our kidnapping statutes and required the jury instruction if the evidence reasonably supports the finding that the restraint in a particular case was not merely incidental to the commission of another crime. Id., at 547–48, 949 A.2d 1092.
Salamon , of course, is the necessary starting point for these types of cases. The law, however, has developed beyond the rule established in Salamon . As we have discussed in greater detail, the Salamon rule retroactively applies to collateral proceedings on judgments rendered final prior to Salamon . See Luurtsema v. Commissioner of Correction , supra, 299 Conn. at 740, 12 A.3d 817. Furthermore, in habeas proceedings, such as the present case, where a petitioner was entitled to a Salamon instruction, the burden of establishing harmlessness beyond a reasonable doubt lies with the respondent with respect to the omitted jury instruction. See Hinds v. Commissioner of Correction , supra, 321 Conn. at 56, 136 A.3d 596. Our review of the present case, therefore, must include the Salamon principles as considered in the context of a habeas proceeding where the question is limited to whether the respondent proved to this court that the absence of the jury instruction was harmless beyond a reasonable doubt. See, e.g., id. ; White v. Commissioner of Correction , supra, 170 Conn. App. at 415, 154 A.3d 1054 ; Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 803, 149 A.3d 983.
The respondent counters that the habeas court properly concluded that the absence of the Salamon instruction constituted harmless error because "[t]he petitioner had completed the robberies without need for, and prior to, moving and restraining the [employees], and he moved and restrained them simply to facilitate his escape without detection." We agree with the petitioner.
"To answer the question of whether the absence of the Salamon standard constituted harmless error requires us to examine the factors and principles enunciated in that case." Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 840, 149 A.3d 983. "[A ] defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. " (Emphasis added.) State v. Salamon , supra, 287 Conn. at 547–48, 949 A.2d 1092. We iterate that "to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." Id., at 542, 949 A.2d 1092.
The Salamon court set forth a list of factors "[f]or purposes of making [the] determination [of whether a criminal defendant's movement or confinement of a victim was necessary or incidental to the commission of another crime; specifically] the jury should be instructed to consider the various relevant factors, including [1] the nature and duration of the victim's movement or confinement by the defendant, [2] whether that movement or confinement occurred during the commission of the separate offense, [3] whether the restraint was inherent in the nature of the separate offense, [4] whether the restraint prevented the victim from summoning assistance, [5] whether the restraint reduced the defendant's risk of detection and [6] whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense." Id., at 548, 949 A.2d 1092.
With respect to the first Salamon factor, the nature and duration of the victim's movement or confinement, the petitioner argues: "The movement to the bathroom in both cases was brief in distance and the duration of the movement and confinement lasted only a few minutes. In addition, the restraint occurred extremely close in time to the robbery and it is conceivable that jurors would view the fact that [the] petitioner moved the employees into the bathroom so that he could escape as being part and parcel of the robbery." The respondent counters that "[o]n the facts of this case, the nature and duration of the movements and confinements reinforce their independent significance." We agree with the petitioner that this factor weighs in his favor.
Analysis of this factor is guided by our decision in White v. Commissioner of Correction , supra, 170 Conn. App. at 430–432, 154 A.3d 1054, where we observed: "[I]n Hinds v. Commissioner of Correction , supra, 321 Conn. [at] 92–93 , our Supreme Court attempted to categorize various Salamon incidental restraint cases with differing degrees of confinement or movement: Although no minimum period of restraint or degree of movement is necessary for the crime of kidnapping, an important facet of cases where the trial court has failed to give a Salamon instruction and that impropriety on appellate review has been deemed harmless error is that longer periods of restraint or greater degrees of movement demarcate separate offenses. See State v. Hampton , supra, 293 Conn. [at] 463–64 (defendant confined victim in a car and drove her around for approximately three hours before committing sexual assault and attempted murder); State v. Jordan , [129 Conn. App. 215, 222–23, 19 A.3d 241] (evidence showed the defendant restrained the victims to a greater degree than necessary to commit the assaults even though assaultive behavior spanned entire forty-five minute duration of victims' confinement) [cert. denied, 302 Conn. 910, 23 A.3d 1248 (2011) ]; State v. Strong , [122 Conn. App. 131, 143, 999 A.2d 765] (defendant's prolonged restraint of victim while driving for more than one hour from one town to another not merely incidental to threats made prior to the restraint) [cert. denied, 298 Conn. 907, 3 A.3d 73 (2010) ]; and State v. Nelson , [118 Conn. App. 831, 860–62, 986 A.2d 311] (harmless error when defendant completed assault and then for several hours drove victim to several locations) [cert. denied, 295 Conn. 911, 989 A.2d 1074 (2010) ]. Thus, as these cases demonstrate, multiple offenses are more readily distinguishable—and, consequently, more likely to render the absence of a Salamon instruction harmless—when the offenses are separated by greater time spans, or by more movement or restriction of movement.
"Conversely, multiple offenses occurring in a much shorter or more compressed time span make the same determination more difficult and, therefore, more likely to necessitate submission to a jury for it to make its factual determinations regarding whether the restraint is merely incidental to another, separate crime. In those scenarios, [in which] kidnapping and multiple offenses occur closer in time to one another, it becomes more difficult to distinguish the confinement or restraint associated with the kidnapping from another substantive crime. The failure to give a proper Salamon instruction in those scenarios is more likely to result in harmful error precisely because of the difficulty in determining whether each crime has independent criminal significance. See State v. Thompson , [118 Conn. App. 140, 162, 983 A.2d 20 (2009) ] (within fifteen minutes defendant entered victim's car, pushed her behind a building and sexually assaulted her) [cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010) ]; State v. Flores , [supra, 301 Conn. at 89, 17 A.3d 1025] (defendant's robbery of victim in her bedroom lasted between five and twenty minutes); State v. Gary , [120 Conn. App. 592, 611, 992 A.2d 1178] (defendant convicted of multiple sexual assaults and an attempted sexual assault that were in close temporal proximity to the defendant's restraint of the victim; thus court determined evidence reasonably supports a finding that the restraint merely was incidental to the commission of other crimes, namely, sexual assaults and attempted sexual assault; lack of Salamon instruction harmful error) [cert. denied, 297 Conn. 910, 995 A.2d 637 (2010) ]." (Emphasis added; internal quotation marks omitted.); see generally Wilcox v. Commissioner of Correction , supra, 162 Conn. App. at 743, 129 A.3d 796 (review of appellate decisions reveals that absence of Salamon instruction is generally more prejudicial where kidnapping related actions were closely aligned in time, place and manner to other criminal acts and these factors are particularly crucial).
In the present case, at the criminal trial, the state presented testimony that the length of the entire store in Newington was "maybe thirty yards." In response to a question regarding the distance from the counter to the bathroom, Kozlowski stated: "[The bathroom is] actually right behind [the counter] but there is a wall. I mean, you'd have to walk maybe twelve, twenty, about twenty-four feet, basically a square." Silk testified that the two employees and the petitioner remained by the counter for approximately four to five minutes.
After moving the two employees to the bathroom, the petitioner then placed a mop handle behind the door. A few minutes later, the employees heard a bell that sounded when someone entered or exited the store. The employees then pushed open the door to the bathroom and called the police. Silk specifically indicated that the two employees remained in the bathroom for a period of time "[u]nder two minutes. Maybe even under a minute."
With respect to the criminal activity at the Southington store, Wright testified that the entire proceedings, from the time the petitioner entered the store until he left, lasted five to ten minutes. Feltman indicated that her encounter with the petitioner in front of the cash register lasted four to five minutes. Feltman also noted that a narrow hallway, with three doors, connected the main showroom to the bathroom area. Wright and Feltman testified that they remained in the bathroom for a few minutes before exiting and calling the police.
In each instance, the petitioner's criminal conduct occurred at a single location. See White v. Commissioner of Correction , supra, 170 Conn. App. at 432, 154 A.3d 1054. Furthermore, the robberies and purported kidnappings were not separated by a significant time period or distance. Id., at 432–33, 154 A.3d 1054. Under these facts, it is difficult to determine whether each crime had independent criminal significance. Id., at 431, 154 A.3d 1054. Given the "close temporal proximity to the alleged kidnapping and [the fact that] any confinement/movement was limited in nature and distance," this factor supports the petitioner's contention that the lack of a Salamon instruction was not harmless error. Id., at 432–33, 154 A.3d 1054 ; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 79–80, 136 A.3d 596 (petitioner's actions were continuous, uninterrupted course of conduct and lasted a few minutes where he pursued, grabbed, threatened and sexually assaulted victim); State v. Flores , supra, 301 Conn. at 87, 17 A.3d 1025 (Supreme Court noted that where victim neither was bound nor moved physically, but was restrained on bed for no more than five minutes, failure to provide jury with Salamon instruction was not harmless); Epps v. Commissioner of Correction, supra, 153 Conn. App. at 741, 104 A.3d 760 (evidence neither overwhelming nor undisputed regarding restriction of victim's movements during assault); cf. State v. Hampton , supra, 293 Conn. at 464, 988 A.2d 167 (passage of substantial amount of time clearly showed defendant's intent to prevent victim's liberation for longer period of time or to greater degree than necessary to commit subsequent crimes); Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 841, 149 A.3d 983 (absence of Salamon instruction harmless where, inter alia, criminal conduct lasted for nearly two hours and was interrupted by actions of third party and victim's escape efforts); Eric M. v. Commissioner of Correction , supra, 153 Conn. App. at 846–47, 108 A.3d 1128 (failure to give Salamon instruction harmless where victim had been sexually assaulted for few minutes and restrained for five hours); State v. Nelson , supra, 118 Conn. App. at 860–61, 986 A.2d 311 (court noted significance of substantial length of restraint and that five hour period of restraint constituted overwhelming evidence of intent to prevent liberation for longer period of time than necessary to commit assault).
Next, we consider the second Salamon factor, that is, whether the confinement or movement of the three store employees and Feltman occurred during the commission of the robberies. See, e.g., White v. Commissioner of Correction , supra, 170 Conn. App. at 433, 154 A.3d 1054. The habeas court determined that "[t]hese movements and confinements were perpetrated after the crimes of robbery were committed and cannot conceivably be regarded as coincidental with or necessary to complete the substantive crimes of robbery. Depriving someone of their freedom of movement by imprisoning them in a bathroom subsequent to acquiring their money, although convenient for the robber, is not inherent in the crime of robbery." (Emphasis in original.) The respondent agrees with the habeas court's statement that the crime of robbery had been completed prior to the movement and confinement of the three store employees and Feltman, which supports the contention that the absence of the Salamon instruction was harmless. The petitioner maintains that the jury could have concluded that the placing of the three store employees and Feltman in the bathrooms was part of the robberies and that the robberies did not end as soon as the petitioner took the money. Again, we agree with the petitioner.Initially, we address whether the robberies ended as soon as the petitioner took the money. At common law, robbery was defined as "the felonious taking of personal property from the person or custody of another by force or intimidation." State v. Reid , 154 Conn. 37, 39, 221 A.2d 258 (1966). In the present case, the petitioner was convicted of violating § 53a-134 (a) (4), which provides: "A person is guilty of robbery in the first degree when, in the course of the commission of the crime of robbery as defined in section 53a-133 or of immediate flight therefrom , he or another participant in the crime ... (4) displays or threatens the use of what he represents by his words or conduct to be a pistol, revolver, rifle, shotgun, machine gun or other firearm ...." (Emphasis added.) General Statutes § 53a-133, in turn, defines a robbery as follows: "A person commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of: (1) Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or (2) compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny." See also State v. Wallace , 56 Conn. App. 730, 740–41, 745 A.2d 216, cert. denied, 253 Conn. 901, 753 A.2d 939 (2000).
The petitioner continued to display and threaten the use of a firearm after he had used or threatened the use of physical force in the act of committing a larceny at the Newington and Southington stores. In other words, the jury could have determined that the petitioner continued to violate § 53a-134 (a) as he commandeered the three store employees and Feltman into the bathrooms and that the robbery offenses had not concluded with his taking of the money from each store. See also 67 Am. Jur. 2d, Robbery § 4 (2018) ("[r]obbery has been described as a continuing offense, or a continuous transaction, that is ongoing until the robber has won his or her way to a place of temporary safety." [Footnotes omitted.] ); 77 C.J.S., Robbery § 1 (2018) ("[r]obbery is not confined to any fixed locus, but is frequently spread over a considerable distance and varying periods of time. Accordingly, robbery may be characterized as a continuing offense which is not complete until the robbers reach a place of temporary safety." [Footnote omitted.] ).
General Statutes § 53a-119 provides in relevant part that "[a] person commits larceny when, with intent to deprive another of property or to appropriate the same to himself or a third person, he wrongfully takes, obtains or withholds such property from an owner...."
Our determination that the crime of robbery may continue after the taking of the property finds support in our case law. For example, in State v. Ghere , 201 Conn. 289, 290, 513 A.2d 1226 (1986), the defendant challenged his conviction of attempt to commit robbery in the first degree as an accessory on the basis of insufficient evidence. Specifically, the defendant claimed that the state had failed to prove that he had "used or threatened to use force ‘in the course of’ attempting the larceny under ... § 53a-133 and that, as a result, he could not be found guilty of attempted robbery in the first degree." Id., at 296–97, 513 A.2d 1226. In Ghere , the defendant and another man approached the victim in a supermarket parking lot, blocked him from proceeding into the store and asked for money. Id., at 291–92, 513 A.2d 1226. After a brief verbal exchange, the victim refused to give the defendant money. Id., at 292, 513 A.2d 1226. The defendant stepped toward the victim and displayed a blackjack. Id. The defendant then struck the victim in the face with the weapon, and then punched him several times in the stomach. Id. After the victim pretended to be unconscious, the defendant and his companion quickly departed from the parking lot without searching the victim. Id.In rejecting the defendant's insufficiency claim, our Supreme Court stated: "We cannot agree with the defendant's position ... that the use of force was not ‘in the course of’ the attempted robbery because the assault of the victim occurred subsequent to the demand for money. It is well established that, under ... § 53a-133, if the use of force occurs during the continuous sequence of events surrounding the taking or attempted taking, even though some time immediately before or after, it is considered to be ‘in the course of’ the robbery or the attempted robbery within the meaning of the statute .... In the present case, although the defendant could have assaulted the victim for any number of reasons, including frustration, anger, fear or desire to keep the victim from pursuing him, the assault occurred within seconds of the demand for money. The blackjack was also apparently in the defendant's hand while the demand was made. From these facts the jury could reasonably have concluded that the force used ‘was within the sequence of events directly connected with the attempted robbery.’ " (Citations omitted; emphasis added.) Id., at 297–98, 513 A.2d 1226 ; see also State v. Moore , 100 Conn. App. 122, 129–130, 917 A.2d 564 (2007) (well within province of jury to find that defendant's threat was made during continuous sequence of events surrounding theft of property).
We applied this reasoning in State v. Cooke , 89 Conn. App. 530, 874 A.2d 805, cert. denied, 275 Conn. 911, 882 A.2d 677 (2005). In Cooke , the defendant claimed on appeal that, inter alia, there was insufficient evidence to support his conviction of felony murder. Id., at 533, 874 A.2d 805. The defendant, along with two others, conducted an armed robbery of a "garage party" in Bridgeport, taking money, jewelry and other items from the guests. Id., at 533–34, 874 A.2d 805. Police officers arrived and a shootout ensued. Id., at 534, 874 A.2d 805. The victim, a guest at the party, died as a result of a bullet fired from a gun carried by one of the defendant's fellow perpetrators. Id.
On appeal, the defendant argued that by the time the victim had been killed, the robbery had been completed, and therefore there was insufficient evidence for the jury to conclude that "the use of force was within the sequence of events directly connected to the robbery." (Internal quotation marks omitted.) Id., at 535, 874 A.2d 805. In rejecting this argument, we relied on the reasoning in State v. Ghere , supra, 201 Conn. at 297, 513 A.2d 1226, and determined there was evidence for the jury to conclude that use of force, i.e., shooting at the police, was part of an effort to retain the stolen property and elude capture. State v. Cooke , supra, 89 Conn. App. at 536–37, 874 A.2d 805. Additionally, there was evidence before the jury that the victim had made an effort to stop the defendant and his fellow perpetrators, and was shot and killed as a result thereof. Id., at 537, 874 A.2d 805. Thus, there was sufficient evidence that the use of force had occurred during the continuous sequence of events related to the taking of property, even though some time had elapsed after the actual taking, so as to be considered in the course of the robbery. Id., at 536–37, 874 A.2d 805.
For these reasons, we conclude that the habeas court improperly concluded that the movement and confinement of the three store employees and Feltman in both the Newington and Southington stores occurred after the robberies had been committed and could not "conceivably be regarded as coincidental with or necessary to complete the substantive crimes of robbery." We further disagree that it is "crystal clear" that the intent and purpose of the petitioner was to delay the three store employees and Feltman from summoning assistance and reporting his crimes to the police, thereby aiding in the petitioner's escape. The jury reasonably could have determined that the confinement and movement of the three store employees and Feltman after the taking of the money was part of the course of events of the robberies.
We also conclude that the respondent's reliance on our decision in State v. Golder , 127 Conn. App. 181, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011), is misplaced. In that case, the defendant entered the victim's Greenwich home for the purpose of stealing jewelry. Id., at 183–84, 14 A.3d 399. He grabbed the victim, picked her up and asked where he could find the jewelry. Id., at 184, 14 A.3d 399. The defendant grabbed the victim in a "bear hug" and carried her to kitchen, where he seized a bag of jewelry. (Internal quotation marks omitted.) Id. He then told the victim that he would place her in the basement; however, after she informed him of her asthma and claustrophobia, he instead took her to the bedroom and tied her to the bed with her husband's neckties. Id. The defendant then took her car keys and departed. Id. After approximately twenty-five minutes, the victim freed herself and called the police. Id., at 184–185, 14 A.3d 399.
The defendant subsequently was convicted of various kidnapping, larceny and burglary offenses. Id., at 187, 14 A.3d 399. In his direct appeal, the defendant claimed that the failure to provide the jury with a Salamon instruction constituted reversible error. Id., at 187–88, 14 A.3d 399. We disagreed. "Here, the victim was restrained to an extent exceeding that which was necessary to accomplish or to complete the other crime, and restraining [the victim] was not necessary for the defendant to accomplish any crime. Therefore, the holding of Salamon does not control this case." (Footnote omitted.) Id., at 190, 14 A.3d 399. Specifically, we reasoned that the crime of burglary had been completed when he entered the victim's home with the intent to take the jewelry. Id. After the completion of that crime, the defendant then moved the victim to the bedroom and tied her to the bed with her husband's neckties. Id."While this restraint facilitated the defendant's escape, it was not necessary to accomplish the burglary, which already had been completed. We conclude that the restraint that occurred after the defendant took the jewelry from the kitchen closet had its own independent significance." Id., at 190–91, 14 A.3d 399.
Golder is distinguishable from the present case. In the former, we determined that the underlying crime of burglary had been completed, and therefore the subsequent restraint of the victim constituted the independent crime of kidnapping. Furthermore, the restraint in that case lasted for a greater period of time, approximately twenty-five minutes, as compared to the relatively brief time periods in the present case. The defendant in Golder also physically moved the victim among several rooms and tied her to the bed. Id., at 184–85, 14 A.3d 399. This level of restraint stands in marked contrast to the present case, where the petitioner moved the employees from areas near the cash register to bathrooms, from which they easily escaped following the petitioner's departure. Cf. Nogueira v. Commissioner of Correction , supra, 168 Conn. App. at 842, 149 A.3d 983 (petitioner's asportation of victim to window well, essentially a deep hole, limited her escape options and acted as second level of restraint). Because the jury reasonably could conclude that the movement and confinement of the employees were part of the robberies of the two stores, the failure to provide a Salamon instruction constituted harmful error, and the respondent's reliance on Golder is misplaced.
We again are guided by our decision in White v. Commissioner of Correction , supra, 170 Conn. App. at 415, 154 A.3d 1054. In that case, the petitioner, Phillip White III, had been convicted of kidnapping in the second degree with a firearm and burglary in the second degree with a firearm. Id., at 419–20, 154 A.3d 1054. White's conviction stemmed from his actions on June 24, 2003. Id., at 417, 154 A.3d 1054. On that day, White rang the doorbell of a home in Fairfield and told the teenage complainant who answered the door that he was selling magazines to earn money for college. Id. The complainant informed White that her parents were not home and that he should return later. Id. White requested to use the bathroom and entered the home without receiving permission from the complainant. Id. White made a second sales effort, but the complainant again declined to purchase any magazines. Id., at 418, 154 A.3d 1054.
White then closed the front door, placed his hand in his rear pocket, and informed the complainant that he had a gun. Id. After ordering her to sit on the couch, he learned that no one else was present in the home. Id. After a few minutes, White stated that he wanted to go upstairs and placed his hand on the complainant's elbow. Id. Upon this physical contact, the complainant began to cry and scream; in response, White instructed her to be quiet. Id. White also prevented the complainant's attempt to exit the home via the front door. Id. The complainant continued to scream, and White "suddenly stopped and said that he was just playing. [White] then called the complainant a ‘scaredy-ass,’ opened the front door and ran out of the house." Id., at 418–19, 154 A.3d 1054.
The court granted White's motion for summary judgment with respect to his habeas petition, concluding that he was entitled to a Salamon instruction and the absence of that instruction was not harmless. Id., at 422, 154 A.3d 1054. On appeal, we affirmed the summary judgment rendered in favor of the petitioner. Id., at 439, 154 A.3d 1054. In that case, the respondent claimed, with respect to the second Salamon factor, that the burglary had been completed prior to White's conduct that comprised the kidnapping, specifically, that the burglary had been completed once White had entered the home and informed the complainant that he had a gun. Id., at 433, 154 A.3d 1054. According to the respondent, White's subsequent actions, such as compelling the complainant to sit on the couch, telling her to go upstairs and touching her arm, were unnecessary to accomplish the completed crime of burglary. Id.
We did not "find this unduly legalistic line of reasoning persuasive. The respondent's syllogism fail[ed] to recognize that the jury could have viewed [White's] actions ... as a continuous, uninterrupted course of conduct all relating to the burglary offense. " (Emphasis added.) Id. In support, we cited authority that a burglary continues until all parties participating in that crime have left the property. Id., at 434, 154 A.3d 1054. Acknowledging the propriety of the responent's argument that sufficient evidence for the burglary conviction attached at the point when White stated that he had a gun while in the home of the complainant, we nevertheless concluded that "the jury could have deemed the burglary to be in progress for the entirety of the ten minutes in which he was at the residence because he remained on the premises with the intent to commit a crime.... This is especially true under the facts of this case because the underlying crime that formed the basis of [White's] intent for his burglary charge was never completed, and, thus, the jury reasonably could have found that his intent to ‘commit a crime therein’ was ongoing up until the point at which he abruptly left the residence." (Citation omitted; emphasis omitted; footnote omitted.) Id., at 434–35, 154 A.3d 1054. Ultimately, we were unable to conclude that had the jury been given a Salamon instruction, it would have found that White's actions confining or moving the complainant had not occurred during the commission of the burglary. Id., at 435, 154 A.3d 1054 ; see also State v. Flores , supra, 301 Conn. at 87, 17 A.3d 1025 (where victim was restrained on bed for brief time while defendant and accomplices searched bedroom for valuables and was released after perpetrators left house, Supreme Court could not conclude failure to provide jury with Salamon instruction was harmless).
The dissent misreads White v. Commissioner of Correction , supra, 170 Conn. App. at 433–35, 154 A.3d 1054, to suggest that "there cannot be a finding of harmless error so long as the underlying crime is still ongoing and continuing ...." We do not read White so broadly. The discussion in White about the duration of the underlying burglary was in response to the particular arguments raised by the respondent in that case. See id.
Similarly, in the present case, we are unable to conclude that a properly instructed jury would have necessarily determined that the actions of the petitioner moving the three store employees and Feltman to the bathrooms and confining them therein took place after a completed robbery. As we previously noted, the crime of robbery does not necessarily terminate with the taking of another's property. The jury reasonably could have determined that petitioner's actions following his receipt of the money from the cash registers were part of a continuous sequence of events directly connected to the robberies of the Newington and Southington stores. Accordingly, the second Salamon factor supports the petitioner.
Next, we consider the third Salamon factor, that is, whether the restraint was inherent in the nature of the separate offense of robbery. The respondent recognizes that in State v. Fields , supra, 302 Conn. at 247–48, 24 A.3d 1243, our Supreme Court specifically rejected the argument that when restraint is not an element of the underlying crime, a Salamon instruction is not required and instead determined that the jury must decide whether the restraint was merely incidental to the underlying crime or had independent criminal significance. Stated differently, because restraint is not an element of § 53a-134 (a) (4), the proper question is whether the petitioner's restraint of the three employees and Feltman was inherent to the robbery of the stores. See White v. Commissioner of Correction , supra, 170 Conn. App. at 436, 154 A.3d 1054. The respondent argues that the restraint here was not incidental to the robberies, which, in the respondent's view, had been completed. We disagree.
In Fields , our Supreme Court stated: "On the contrary [to the state's argument], restraint may be used in the commission of the underlying offense, including assault, as in the present case, even though it is not an element of that offense. Thus, depending on the facts of the underlying crime, the fact finder reasonably might conclude that the kidnapping was merely incidental to the underlying crime irrespective of whether that crime requires the use of restraint. A Salamon instruction is necessary in such cases to ensure that the defendant is convicted of kidnapping only when the restraint that forms the basis of the kidnapping charge has criminal significance separate and apart from that used in connection with the underlying offense." State v. Fields , supra, 302 Conn. at 248, 24 A.3d 1243.
We previously have rejected the respondent's argument that the robberies at the Newington and Southington stores had been completed at the time of the movement and confinement of the three employees and Feltman. Furthermore, we iterate that the jury could have found that the movement of the three store employees and Feltman from the sales floor to the bathrooms, and confinement therein, was inherent to the nature of the robberies at the two stores. See id., at 435–37, 154 A.3d 1054. In the absence of a Salamon instruction, there was nothing to prevent the jury from finding the petitioner guilty of kidnapping even if it had concluded that the restraint was incidental to the robberies. State v. Fields , supra, 302 Conn. at 252, 24 A.3d 1243. Accordingly, we conclude that the third Salamon factor weighs in favor of the petitioner.
The remaining Salamon factors, whether the restraint prevented the three employees and Feltman from summoning assistance, whether the restraint reduced the risk of detection and whether the restraint created a significant danger or increased the risk of harm to the victim independent of that posed by the robbery, afford the petitioner little, if any, support. See, e.g., White v. Commissioner of Correction , supra, 170 Conn. App. at 437–38, 154 A.3d 1054. We disagree with the statement in the petitioner's brief that the confinement in the bathroom did not prevent the three employees and Feltman from summoning assistance or reduce the risk of detection.
Nevertheless, the significance of the Salamon factors that do weigh in favor of the petitioner, namely, the nature and duration of the movement and confinement of the employees, whether such confinement occurred during the commission of the robbery and whether the restraint was inherent in the nature of the robbery, outweighs the significance of those that support the respondent's claim of harmless error. See White v. Commissioner of Correction , supra, 170 Conn. App. at 437–38, 154 A.3d 1054 (certain Salamon factors cut in favor of respondent, but did not trump significance of others that weighed in favor of petitioner); see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 92–93, 136 A.3d 596 (noting that where confinement or restraint associated with kidnapping occurs in close time frame to other offense, failure to provide Salamon instruction more likely to result in harmful error because of difficulty in determining whether each crime had independent criminal significance).
We emphasize the respondent's considerable burden in this appeal. First, as we previously have explained in some detail, the law of kidnapping has evolved significantly since the time of the petitioner's criminal trial. These developments apply retroactively to his convictions. Following a concession that the petitioner was entitled to a Salamon instruction at the criminal trial, the respondent is required under our law to persuade this court beyond a reasonable doubt that the absence of the instruction did not contribute to the jury verdict regarding the kidnapping counts. State v. Fields , supra, 302 Conn. at 245–46, 24 A.3d 1243 ; State v. Flores , supra, 301 Conn. at 83, 17 A.3d 1025 ; see also Hinds v. Commissioner of Correction , supra, 321 Conn. at 77–78, 136 A.3d 596 (jury instruction that improperly omitted essential element from charge constitutes harmless error only if reviewing court concludes beyond reasonable doubt that omitted element was uncontested and supported by overwhelming evidence such that verdict would have been same absent error). After considering and applying the Salamon factors, and guided by the precedent of our appellate courts, we are not satisfied that the question of the petitioner's intent in the movement and confinement of the three employees and Feltman in the Newington and Southington stores was uncontested or supported by overwhelming evidence.
A jury provided with a Salamon instruction reasonably could determine that the petitioner's movement and confinement of the three employees and Feltman in the bathrooms was done in furtherance of the August 30, 1995 and September 13, 1995 robberies. See, e.g., State v. Flores , supra, 301 Conn. at 87, 17 A.3d 1025 (test is not whether jury would return a guilty verdict if properly instructed, but rather whether it was reasonably possible that jury, instructed in accordance with Salamon might find petitioner's conduct constituted robbery but did not rise to level of kidnapping). Put differently, considering the de minimis movement and confinement of the three employees and Feltman after the petitioner took the money from cash registers, as well as the uncertainty in ascertaining whether the movement and confinement of these individuals in the bathrooms was a continuous, uninterrupted course of conduct related to the robberies or an independent criminal act, we cannot conclude that the respondent satisfied his heavy burden in this case. See Hinds v. Commissioner of Correction , supra, 321 Conn. at 92–93, 136 A.3d 596 (where kidnapping and other offenses occur closer in time to one another, it becomes more difficult to distinguish confinement or restraint associated with kidnapping from other crimes and lack of Salamon instruction more likely to result in harmful error because of difficulty in determining whether each crime had independent criminal significance); Wilcox v. Commissioner of Correction , supra, 162 Conn. App. at 743, 129 A.3d 796 (absence of Salamon instruction is generally more prejudicial in cases where perpetrator's kidnapping related actions were closely aligned in time, place and manner to other criminal acts). Thus, because the respondent has not proven that the absence of a Salamon instruction was harmless beyond a reasonable doubt, the petitioner is entitled to the remedy of the reversal of the kidnapping convictions and a remand for a new trial on those offenses. See State v. DeJesus , supra, 288 Conn. at 434–39, 953 A.2d 45.
The dissent contends that we have expanded "the definition of the word ‘necessary’ to apply to conduct that was unnecessary to complete the robberies, but simply made their completion easier." As we discuss in greater detail in Bell v. Commissioner of Correction , 184 Conn. App. 150, 171–72 n.11, ––– A.3d –––– (2018), the asportation of the victim in Hinds v. Commissioner of Correction , supra, 321 Conn. at 80, 136 A.3d 596, was not necessary for the completion of sexual assault. Nevertheless, our Supreme Court determined that the petitioner in that case was entitled to a new trial based on consideration of the Salamon factors, primarily minimal movement of the victim and the fact that the multiple offenses occurred in a compressed time span. Id., at 93–94, 136 A.3d 596.
Our use of the phrase "de minimis" refers to the brief distance and relatively short period of time between the robbery and the restraint and confinement of the three employees and Feltman by the petitioner, when compared to other cases addressing a conviction for kidnapping and another crime. See, e.g., State v. Hampton , supra, 293 Conn. at 463–64, 988 A.2d 167 (defendant confined victim in car and drove her around for three hours prior to sexual assault). We do not ignore or minimize the increased fear experienced by the four victims in this case at the hands of the petitioner. See Hinds v. Commissioner of Correction , supra, 321 Conn. at 80 n.15, 136 A.3d 596 ; State v. Flores , supra, 301 Conn. at 88, 17 A.3d 1025.
The judgment of the habeas court is reversed and the case is remanded with direction to render judgment granting the petition for a writ of habeas corpus, vacating the petitioner's convictions under § 53a-92 (a) (2) (B) and ordering a new trial on those offenses.
In this opinion PRESCOTT, J., concurred.
I respectfully dissent. I conclude that under the facts and circumstances of this case, as well as the analysis established in our Supreme Court precedent, the absence of the instruction mandated by State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008), was harmless beyond a reasonable doubt. I do not believe there is a reasonable probability that a properly instructed jury would reach a different result based on its required analysis of the factors enunciated in Salamon. Therefore, I would affirm the judgment of the habeas court denying the amended petition for a writ of habeas corpus filed by the petitioner, Mark Banks.
The majority correctly states both the standard of review and the burden of the respondent, the Commissioner of Correction. Thus, I begin with a discussion of the Salamon decision, because I believe the majority strays too far from the rule enunciated therein, which distinguishes a kidnapping from a restraint that is incidental to and necessary for the commission of some other crime against a victim.
At one point, the majority concludes that the jury was free to determine "that the confinement and movement of the [four individuals] after the taking of the money was part of the course of events of the robberies," which is not the standard we are required to apply under State v. Salamon , 287 Conn. 509, 949 A.2d 1092 (2008). I agree completely with Judge Lavine's eloquent dissent in Bell v. Commissioner of Correction , 184 Conn. App. 150, 174, ––– A.3d –––– (2018) (Lavine, J. , dissenting), a case of two robberies that involved stealing money from restaurant safes and the petitioner's ordering the victims into restaurant walk-in refrigerators, closing them inside, and telling them not to leave. Judge Lavine's criticism of the majority's analysis in that case aptly describes the problem I have with the majority's analysis here. The majority expands the definition of the word "necessary" to apply to conduct that was unnecessary to complete the robberies, but simply made their completion easier.
The facts in Salamon involved the defendant being charged with kidnapping in the second degree as a result of the following conduct. "The victim disembarked the train in Stamford and began walking toward a stairwell in the direction of the main concourse. At that time, the victim noticed the defendant, who was watching her from a nearby platform. As the victim approached the stairwell, she observed that the defendant was following her. The defendant continued to follow the victim as she ascended the stairs. Before the victim reached the top of the stairs, the defendant caught up to her and grabbed her on the back of the neck, causing her to fall onto the steps. The victim, who had injured her elbow as a result of the fall, attempted to get up, but the defendant, who had positioned himself on the steps beside her, was holding her down by her hair. The victim screamed at the defendant to let her go. The defendant then punched the victim once in the mouth and attempted to thrust his fingers down her throat as she was screaming. Eventually, the victim was able to free herself from the defendant's grasp, and the defendant fled.... According to the victim, the altercation with the defendant lasted at least five minutes." Id., at 515, 949 A.2d 1092.
The defendant in Salamon also was charged with risk of injury to a child and unlawful restraint in the first degree. Charges of attempted sexual assault in the third degree and three counts of assault in the third degree were withdrawn before trial, but the court concluded that the defendant was entitled to an instruction that he cannot be convicted of kidnapping if the restraint imposed on the victim was merely incidental to an assault, regardless of whether the state tried him for assault because the facts reasonably supported an assault conviction. State v. Salamon , supra, 287 Conn. at 550 n.35, 949 A.2d 1092.
I note that in light of these facts, our Supreme Court concluded that a reasonable jury could find either that the defendant's restraint of the victim was merely incidental to or necessary for his underlying assault, or that his restraint of the victim constituted a kidnapping. It determined that the facts of the case were a close call and ordered a new trial for the defendant on the kidnapping charge. State v. Salamon , supra, 287 Conn. at 549, 949 A.2d 1092. If the actions of the defendant in Salamon could reasonably have constituted a kidnapping, I do not see how the defendant's actions in the present cases could reasonably constitute anything but kidnappings.
In Salamon , our Supreme Court held that "to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." Id., at 542, 949 A.2d 1092. The court noted that the issue in Salamon "directly implicates only a relatively narrow category of criminal cases, that is, kidnapping cases in which the restraint involved is incidental to the commission of another crime." Id., at 523, 949 A.2d 1092.
"First, in order to establish a kidnapping, the state is not required to establish any minimum period of confinement or degree of movement. When that confinement or movement is merely incidental to the commission of another crime, however, the confinement or movement must have exceeded that which was necessary to commit the other crime. [T]he guiding principle is whether the [confinement or movement] was so much the part of another substantive crime that the substantive crime could not have been committed without such acts .... In other words, the test ... to determine whether [the] confinements or movements involved [were] such that kidnapping may also be charged and prosecuted when an offense separate from kidnapping has occurred asks whether the 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....
"Conversely, a defendant may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime. Whether the movement or confinement of the victim is merely incidental to and necessary for another crime will depend on the particular facts and circumstances of each case. Consequently, when the evidence reasonably supports a finding that the restraint was not merely incidental to the commission of some other, separate crime, the ultimate factual determination must be made by the jury...."Second, we do not retreat from the general principle that an accused may be charged with and convicted of more than one crime arising out of the same act or acts, as long as all of the elements of each crime are proven. Indeed, 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. Undoubtedly, many crimes involving restraints already are prosecuted under those provisions." (Citations omitted; emphasis added; footnotes omitted; internal quotation marks omitted.) Id., at 546–48, 949 A.2d 1092. Our Supreme Court noted that the rule of Salamon "is relatively narrow and directly affects only those cases in which the state cannot establish that the restraint involved had independent significance as the predicate conduct for a kidnapping" and would not "force a major shift in prosecutorial decision making." Id., at 548, 949 A.2d 1092.
The Supreme Court also stated that "[f]or purposes of making [the] determination [of whether a criminal defendant's movement or confinement of a victim was necessary or incidental to the commission of another crime] the jury should be instructed to consider the various relevant factors, including [1] the nature and duration of the victim's movement or confinement by the defendant, [2] whether that movement or confinement occurred during the commission of the separate offense, [3] whether the restraint was inherent in the nature of the separate offense, [4] whether the restraint prevented the victim from summoning assistance, [5] whether the restraint reduced the defendant's risk of detection and [6] whether the restraint created a significant danger or increased the victim's risk of harm independent of that posed by the separate offense." Id. I believe an analysis of the Salamon factors, half of which the majority does not analyze in any detail, requires affirmance of the kidnapping convictions in this case.Prior appeals addressing the lack of a Salamon instruction at a criminal trial in which the defendant or habeas petitioner was convicted of both kidnapping and an underlying offense reveal that the determination of whether the absence of such an instruction was harmless beyond a reasonable doubt is highly dependent on the facts and circumstances of each case. "Analyses of Salamon claims have focused on a variety of factors in determining whether a kidnapping conviction can stand, but the timing, location, and manner in which the [petitioner] commits criminal acts against a victim are particularly crucial factors." Wilcox v. Commissioner of Correction , 162 Conn. App. 730, 743, 129 A.3d 796 (2016).
After Salamon , this court and our Supreme Court have concluded that restraining a victim for a brief duration in connection with an underlying offense can still constitute kidnapping. See State v. Ward , 306 Conn. 718, 736–37, 51 A.3d 970 (2012) ; State v. Lewis , 148 Conn. App. 511, 517, 84 A.3d 1238, cert. denied, 311 Conn. 940, 89 A.3d 349, cert. denied, ––– U.S. ––––, 135 S.Ct. 132, 190 L.Ed.2d 101 (2014) ; State v. Ayala , 133 Conn. App. 514, 522–23, 36 A.3d 274, cert. denied, 304 Conn. 913, 40 A.3d 318 (2012).
I note that State v. Ward , supra, 306 Conn. at 718, 51 A.3d 970, State v. Ayala , supra, 133 Conn. App. at 514, 36 A.3d 274, and State v. Lewis , supra, 148 Conn. App. at 511, 84 A.3d 1238, are direct criminal appeals analyzing whether there was sufficient evidence to support a kidnapping conviction. Reliance on these cases can be problematic in habeas appeals because the petitioner only has to demonstrate that the respondent cannot prove that the absence of a Salamon instruction at his underlying criminal trial was harmless beyond a reasonable doubt, a different standard than proving lack of sufficient evidence to convict on direct appeal. See Hinds v. Commissioner of Correction , 321 Conn. 56, 91, 136 A.3d 596 (2016). My reliance on these cases is limited to support the proposition that a reasonable jury, having been instructed in accordance with Salamon , properly may find that confinement of a short duration constitutes kidnapping.
In State v. Ward , supra, 306 Conn. at 741, 51 A.3d 970, our Supreme Court determined that the trial court improperly granted the defendant's motion for a judgment of acquittal on his kidnapping conviction because the jury, provided with a proper Salamon instruction, reasonably could have decided that moving the victim down a hallway and restraining her for ten to fifteen minutes was not incidental to the crime of sexual assault. In State v. Lewis , supra, 148 Conn. App. at 517, 84 A.3d 1238, the evidence was sufficient to support the defendant's kidnapping conviction under the rule of Salamon when, after committing the crime of assault, the defendant dragged the victim across the ground and tried to force her into a car. The victim resisted until plainclothes police officers arrived, forcing the defendant to let go of the victim. Id., at 514, 84 A.3d 1238. Also, in State v. Ayala , supra, 133 Conn. App. at 522–23, 36 A.3d 274, this court found that after the defendant committed the crime of burglary, his actions against the victim amounted to restraint with sufficient independent criminal significance to constitute the crime of kidnapping. The defendant in Ayala forced his way into the victim's apartment and once inside "stuck ... a black handgun into [the victim's] stomach, threatened to kill her and inquired about the whereabouts of his girlfriend. The victim informed the defendant that his girlfriend was not at her residence, at which time the defendant pushed her and demanded that she sit on the couch. The defendant then searched the residence for his girlfriend, and when he was unable to find her, he left ...." (Footnote omitted.) Id., at 516–17, 36 A.3d 274.
This court has observed that the movement and confinement of a victim after the defendant commits the underlying offense is more likely to have independent criminal significance. See White v. Commissioner of Correction , 170 Conn. App. 415, 436, 154 A.3d 1054 (2017) ; see also State v. Golder , 127 Conn. App. 181, 190–91, 14 A.3d 399, cert. denied, 301 Conn. 912, 19 A.3d 180 (2011). In State v. Golder , supra, at 183, 14 A.3d 399, the defendant entered the victim's residence with the intent to steal her jewelry. Upon unexpectedly encountering the victim inside the residence as she walked toward her bedroom, the defendant grabbed her, moved her to the kitchen while holding her in a bear hug, released her, and took a bag of jewelry from the closet. Id., at 184, 14 A.3d 399. At that point, the defendant told the victim that he was going to have to put her in the basement, but changed his mind after the victim told him she was claustrophobic and asthmatic, and moved her instead to the bedroom. Id. The defendant then "asked if she had any rope. [The victim] responded that she did not have any, so the defendant took some neckties ... and ‘hog-tied’ her to the bed. The defendant then asked [the victim] where she kept her car and where the keys for it were located. [The victim] told him the keys were in her pocketbook, and the defendant went into the kitchen. [The victim] attempted to release herself from the bed, and the defendant returned to ask [the victim] if the car had an alarm. When the defendant left for the second time, [the victim] freed herself and called 911. [The victim] was tied to the bed for a total of twenty to twenty-five minutes." Id., at 184–85, 14 A.3d 399. On the basis of these facts, this court concluded that there was no reasonable possibility that the jury was misled by the lack of a Salamon instruction. Id., at 191, 14 A.3d 399.
Faced with a similar issue, this court reached the same result in Nogueira v. Commissioner of Correction , 168 Conn. App. 803, 845, 149 A.3d 983, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016), and concluded that a reasonable fact finder could not find that the petitioner's restraint and confinement of the victim was incidental to and necessary for the completion of his crime of sexual assault. The petitioner in Nogueira was convicted of kidnapping and sexual assault following a trial to the court, but claimed in a subsequent habeas proceeding that the kidnapping conviction did not comply with the principles set forth in Salamon. Id., at 809, 149 A.3d 983. This court disagreed because the petitioner dragged the victim approximately 113 feet to a window well, where he sexually assaulted her for two hours. Id., at 838, 149 A.3d 983. By moving the victim to the window well, the petitioner decreased his risk of detection and increased the risk of harm to the victim because the window well was lined with rocks. Id., at 841–42, 149 A.3d 983. Moreover, the window well served as a secondary form of restraint and hindered the victim's ability to escape. Id., at 842, 149 A.3d 983.
In light of the principles of Salamon and guided by the cases which have applied those principles, I conclude that the respondent in the present case has met the burden of establishing that the lack of a Salamon instruction in the petitioner's underlying criminal trial was harmless beyond a reasonable doubt. On the basis of my review of the record and my cognizance of the dictates of Salamon , I conclude that when presented with the facts of the underlying crime, a reasonable jury could not find the petitioner's restraint of the victims in each of the cases against him to have been incidental to and necessary for the commission of the robberies. I agree with the habeas court's conclusion that the evidence in the record demonstrates that the petitioner's restraint and abduction of the victims were sufficiently distinct from his crimes of robbery to constitute independently significant kidnappings.
The following facts were before the jury when it reached its verdict in the first case. With respect to the earlier of the two robberies, on direct examination, Michael Kozlowski testified that he was working at the Newington Bedding Barn on August 30, 1995, at about 9 p.m. As Kozlowski prepared to close the store, the petitioner entered. Kozlowski testified that he approached the petitioner with the belief that the petitioner was a customer. When Kozlowski showed the petitioner a king-size bed, the petitioner said, "let me count my money," and reached into his bag and produced a gun. Kozlowski testified that the petitioner said, "[d]on't try anything, I'll bust you one, just walk over to the register." The petitioner then told him to get behind the counter and pointed his gun at Kozlowski's chest. Kozlowski testified that, after the petitioner took the money from the cash register and a wallet from his coworker, Howard Silk, "[the petitioner] moved us ... down to the hallway into the bathroom and ... he then put us into the bathroom and put a mop handle or something behind the door." Kozlowski testified that the petitioner, as they walked down the hallway to the bathroom, said, "[d]on't try anything; I'll blow your head off ...." Kozlowski indicated that after the petitioner closed the bathroom door and locked Kozlowski and Silk in there, "we ducked down thinking he was going to shoot through the door because it was only a piece of plywood, basically, and [a] couple of minutes after, we heard a bell, which is on the front door, [which rings whenever someone enters or leaves the store] ... we then ... kicked the door, basically, and went downstairs."
Silk testified that he also was working at the Newington Bedding Barn during the evening of August 30, 1995. Silk stated that, as he was in the process of closing the store, he noticed the petitioner following Kozlowski toward the counter. As the petitioner and Kozlowski approached, Silk realized that the petitioner was pointing a gun at Kozlowski's back. Silk testified that the petitioner told Kozlowski and Silk that he wanted the money, so Kozlowski took the money from the register as the petitioner pointed the gun at Silk's chest. After Silk told the petitioner that there was no safe inside the store, the petitioner led Silk and Kozlowski toward the back of the store at gunpoint. Silk testified that he handed the petitioner the $17 in his wallet and then, the petitioner "proceeded to put us into the bathroom area" and attempted to jam the door with a mop handle. Silk testified that he believed that the petitioner put them in the bathroom so that he could escape and that after less than two minutes, he heard the bell ring that "goes off when [the door] opens and ... [he] hoped that [the bell rung] when [the petitioner] left." After waiting for thirty seconds after hearing the doorbell ring, Silk and Kozlowski were easily able to open the bathroom door. Silk testified that they went downstairs into the basement of the building to the warehouse there to call 911 and wait for the police to arrive in the event that the petitioner was still on the first floor.
In the second case, Kelly Wright testified that she was working at the Southington Bedding Barn on September 13, 1995. She recalled that at 8:55 p.m., five minutes before the store was set to close, while Wright's roommate, Idelle Feltman, was waiting in the store to take her home, the petitioner and an unidentified female entered the store. Wright testified that the petitioner and the female split up and appeared to be shopping for king-size beds. Wright testified that she was sitting behind the store counter when the petitioner arrived and that she rose in order to greet him because it was store policy to do so whenever a potential customer arrived. Before Wright could make it around the counter, however, the petitioner told her to get on the floor. Wright testified that she noticed that the petitioner had a gun in his hand and was holding it out parallel to the floor. The petitioner told Feltman to get the money from the register. Feltman gave the petitioner the money in the register in a bank bag. Wright testified that the petitioner then inquired if there was a basement in the store, and Feltman responded by telling the petitioner that there was no basement, but there was a bathroom. Wright testified that the petitioner led her and Feltman to the bathroom at gunpoint and told them to enter the bathroom, lock the door, and "not to be a hero, let the cops do their jobs." Wright stated that she heard a buzzer go off, which indicated that the door to the store had been opened. She and Feltman waited for a "little bit," unlocked the door, and left the bathroom to call 911. Wright estimated that about five to six minutes elapsed between the time the petitioner entered the store to the time she and Wright were able to contact the police.
Feltman testified that she went to the Southington Bedding Barn to pick up Wright from work because the two planned to go out to dinner. During her testimony, she recalled that two people, the petitioner and a woman, entered the store right before closing and that the pair split up after they entered the store. Feltman testified that the petitioner approached the counter and removed a gun from his bag. He waved the gun and told her to give him the money in the register. Feltman emptied the register, which contained less than $100, and handed the money to the petitioner. Feltman testified that after he obtained the money, the petitioner inquired whether there was a basement in the store, and that Feltman and Wright replied that there was no basement, but there was a bathroom. Feltman stated that the petitioner led her and Wright in a single-file line to the bathroom and then instructed them to enter, while aiming the gun at them and causing them to be scared. Feltman and Wright entered the bathroom and waited a minute or two after they heard the door buzzer that indicated someone had entered or left the store. At this point, the two left the bathroom and found a mattress that had been placed in the narrow hallway leading to the bathroom as a "barricade ...." Feltman testified that she pushed it off to the side and "walked right through."
Feltman, when describing her emotions as the petitioner led her down the hallway, testified: "I was scared. There was something about [his] eyes. I wanted to make sure that he knew that he was in control. I didn't want to ... show him that I was fearful or anything like that. I didn't want him to think that I was going to freak out ...."
The petitioner argues that the habeas court improperly concluded that the lack of a Salamon instruction was harmless beyond a reasonable doubt. On the basis of my review of the record in the present cases, I conclude that the lack of an instruction was harmless because I am persuaded beyond a reasonable doubt that the omission of an instruction on incidental and necessary restraint did not contribute to the verdict. In doing so, I, unlike the majority, set forth an analysis of all of the Salamon factors.
With respect to the first factor, the petitioner asserts that the nature and duration of the victims' movement or confinement supports his claim because the confinement lasted only a few minutes and the victims were moved a short distance. Although the respondent must prove that the petitioner restrained and abducted the victims, proof "of kidnapping does not require proof that the victim was confined for any minimum period of time or moved any minimum distance." State v. Salamon , supra, 287 Conn. at 531–32, 949 A.2d 1092. In order to "to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim's liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime." Id., at 542, 949 A.2d 1092. With respect to the nature of the confinement, the petitioner led the victims to the bathrooms at gunpoint under the threat of deadly force. The explicit threat of death constitutes sufficient control of the victims' liberation to support a kidnapping conviction. See State v. Ayala , supra, 133 Conn. App. at 522–23, 36 A.3d 274 (implicit threat against victim's life constitutes sufficient confinement to prevent victim's liberation). Though the short-term duration of the victims' confinement does support the petitioner's claim that he is entitled to a new trial on the kidnapping charge, the petitioner's conduct, viewed in its entirety, evinces that he intended to frighten the victims, prevent their escapes and restrain them beyond what was necessary to commit the robberies. The short period of restraint does not outweigh the fact that the petitioner confined the victims at gunpoint after his prior activities in the stores had met all the elements of robbery in the first degree in violation of General Statutes § 53a-134 (a) (4). A jury could not reasonably conclude that the nature and manner of confinement of the victims by forcing them into the bathrooms with the threat of deadly force after the petitioner obtained the money was merely incidental to and necessary for the commission of the robberies. Rather than finding that the movement and confinement of the victims at gunpoint was incidental to and necessary to complete the robberies, reasonable jurors would undoubtedly find that a kidnapping also occurred because the defendant needlessly moved and confined the victims at gunpoint in order to further advance, or facilitate, his commission of the robberies.
Like the majority, I would conclude that the second factor weighs in the petitioner's favor. The evidence demonstrates that the petitioner's movement and confinement of the victims occurred during the commission of the robbery. With respect to the third factor, I observe that the petitioner asserts that because the restraint of the victims occurred contemporaneously with the robberies, a reasonable juror could consider that the restraint was merely incidental to the robberies. Restraint, however, is not an element of the crime of robbery; the inquiry is whether the restraint was incidental to and necessary for the commission of the robberies in these particular cases. See White v. Commissioner of Correction , supra, 170 Conn. App. at 436, 154 A.3d 1054. Restraint that occurs after the underlying crime already has been committed supports the conclusion that the lack of a Salamon instruction was harmless error. See State v. Golder , supra, 127 Conn. App. at 190–91, 14 A.3d 399. Once the petitioner obtained the money from the registers at gunpoint, his conduct satisfied all the elements of robbery in the first degree. Although the use of force after taking money can be viewed as part of the continuum of conduct that can constitute the crime of robbery; State v. Ghere , 201 Conn. 289, 297, 513 A.2d 1226 (1986) ; the relevant inquiry under Salamon is not whether the crime of robbery was still ongoing, but whether the use of force "exceed[ed] that which was necessary to accomplish or complete" the robbery. (Emphasis added.) State v. Salamon , supra, 287 Conn. at 547, 949 A.2d 1092. The petitioner "may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime." (Emphasis added.) Id. The analysis does not need to pinpoint a precise moment when the crime of robbery ended because the petitioner's threatened use of force in leading the victims to the bathroom can be considered as occurring during the commission of the simultaneous crimes of robbery and kidnapping, and the prolonged use of force was not necessary to complete the robberies. Once the petitioner obtained the money from the register, he could have left the stores. Instead of leaving immediately, however, the petitioner led the victims to isolated parts of the stores at gunpoint and threatened to use deadly force. Cf. State v. Flores , 301 Conn. 77, 80–83, 17 A.3d 1025 (2011) (defendant entitled to new trial with Salamon instruction when use of force occurred solely in connection with commission of robbery and defendant immediately departed from scene after completing robbery).
In White v. Commissioner of Correction , supra, 170 Conn. App. at 415, 154 A.3d 1054, this court stated: "We next address the second relevant Salamon factor, that is, whether the movement or confinement occurred during the commission of the separate offense. The respondent argues that the absence of a Salamon instruction did not contribute to the kidnapping verdict here because the burglary had been completed prior to the petitioner's conduct comprising the kidnapping. More specifically, he argues that the offense of second degree burglary was complete once there [was] an unlawful entering or remaining in a building with the intent to commit a crime [therein] ... and the petitioner gestured to his back pocket and told the [complainant] he had a gun. Therefore, he argues, any additional action the petitioner took after he represented by his words or conduct that he possessed a firearm—e.g., ordering the [victim] to sit on the couch, instructing her to move upstairs, touching her elbow in an attempt to get her to move faster—was not necessary to accomplish the already concluded offense of burglary. We do not find this unduly legalistic line of reasoning persuasive.
"The respondent's syllogism fails to recognize that the jury could have viewed the petitioner's actions here as a continuous, uninterrupted course of conduct all relating to the burglary offense.... [A]lthough liability for a burglary premised on an unlawful entry attaches upon a defendant crossing the threshold ... authority exists that a burglary, once begun, continues until all parties participating in the burglary have left the property." (Citations omitted; emphasis omitted; internal quotation marks omitted.) Id., at 433–34, 154 A.3d 1054.
I am troubled by the suggestion in White that there cannot be a finding of harmless error so long as the underlying crime is still ongoing and continuing, which contradicts the holding in Salamon that a defendant "may be convicted of both kidnapping and another substantive crime if, at any time prior to, during or after the commission of that other crime, the victim is moved or confined in a way that has independent criminal significance, that is, the victim was restrained to an extent exceeding that which was necessary to accomplish or complete the other crime." (Emphasis added.) State v. Salamon , supra, 287 Conn. at 547, 949 A.2d 1092. A proper analysis does not entail pinpointing a precise moment when the crime of robbery ended so as to confine our consideration of whether a kidnapping occurred during conduct that occurred after the robberies.
Key facts that persuaded our Supreme Court in Flores that the lack of a Salamon instruction in that case could not be considered harmless beyond a reasonable doubt are absent in the present case. Specifically, in Flores , the restraint of the victim occurred at the location the defendant initially found the victim and occurred prior to the taking of any property, while the defendant and his accomplices searched that room for valuables. Additionally, the victim recognized the defendant in Flores , which alleviated her fear, and the victim was released immediately after the defendant and his accomplices had taken possession of the valuables. By contrast, the petitioner in the present case moved the victims, and confined them in a more secluded location and ensured that they did not emerge until after he escaped. Additionally, nothing in the present case alleviated the victims' fear. There is evidence that the petitioner's conduct after acquiring the money actually increased the victims' fear. Although, as our Supreme Court recognized in Flores , whether the use of force is necessary to complete the underlying crime is generally a question of fact for the jury, the factual dissimilarities in the present case when compared to Flores highlight why a reasonable jury would be precluded from finding that the petitioner's conduct did not constitute kidnapping.As previously stated, I do not view the petitioner's restraint of the victims as incidental to and necessary to commit the robberies. Although the petitioner's threatened use of force in moving or confining a victim can be considered as occurring during the commission of the simultaneous crimes of robbery and kidnapping, his prolonged use of that threat of force cannot reasonably be considered as incidental to and necessary for the completion of the robberies. After the petitioner took possession of the money, his decision to move and confine the victims in a more secluded location can be viewed as an inflection point that shifts how a reasonable jury would view the significance of the petitioner's continuing use of the threat of force. As the evidence in the record reveals, the victims believed that the defendant's initial use of force upon entering the stores was to effectuate his goal of taking possession of the money. Once the petitioner possessed the money, the continued threat of deadly force to move the victims to a secluded part of the stores prolonged their fear and facilitated his escape. Viewing the petitioner's conduct in this light is not an unduly legalistic syllogism because the decisions the petitioner made increased the harmful and terrorizing impact on the victims.
Turning my attention to the fourth and fifth factors, I observe that the petitioner also argues that the victims were not prevented from summoning assistance and that the restraint did not make it easier for him to escape. The facts, however, reflect that this assertion is incorrect because the restraint of the victims, which was not incidental to and necessary for completion of the robberies, facilitated the petitioner's escape. After the petitioner obtained the money, the victims were led into the bathrooms at gunpoint. The victims were neither able to call 911 as the petitioner led them to the bathrooms, nor were they able to summon assistance from inside the bathrooms. Moreover, out of fear that the petitioner was still in the stores, the victims remained in the bathrooms even after they heard the doorbells. It was not until the petitioner had escaped that the victims were able to call for help. The petitioner also made it more difficult for the victims to seek assistance by propping a broom or mop handle against the door after forcing the victims into bathroom at the Newington Bedding Barn and partially blocking the hallway leading from the bathroom with a mattress as he departed the Southington Bedding Barn. Even if the victims were able to get past these obstacles without great difficulty, the obstacles increased the amount of time that elapsed before the victims were able to summon assistance. For the same reasons that I conclude that the petitioner's actions facilitated his escape and prevented the victims from seeking assistance, I conclude that the petitioner, by placing the victims in the bathroom, decreased his risk of detection. By hindering the victims' ability to call for help, the petitioner was able to get farther away from the crime scenes before emergency responders were aware of the crimes.
Last, with respect to the sixth factor, the petitioner argues that the victims were not placed at risk of harm independent of that posed by the robberies. The facts in these cases reflect that this assertion is incorrect because the victims were subjected to an additional risk of both physical and emotional harm. In order to lead the victims to the bathrooms, the petitioner kept his gun targeted on them for a greater length of time than was necessary to effectuate the crime of robbery. This was inherently dangerous simply because the gun could have discharged due to a malfunction or an accident at any time. Furthermore, it increased the risk of a catastrophe because the victims, fearing for their lives, may have attempted to flee, resist or overcome the petitioner. The petitioner's actions after he obtained the money caused the victims to suffer additional emotional distress. As the evidence in the record reveals, the petitioner's decision to lead the victims down narrow corridors, to secluded parts of the stores, hidden from public view, caused the victims additional fear. The impact of this additional fear-provoking behavior would not have occurred if the petitioner had just left the stores after he took possession of the money. Under the facts and circumstances of this case, I conclude that a reasonable jury, provided with the proper, current interpretation of our kidnapping law, could not find that the restraint of the victims was incidental to and necessary to complete the commission of the robberies. The evidence presented by the state, considered as a whole, would prevent a reasonable jury from finding that no kidnappings occurred. Thus, the lack of a Salamon instruction in the petitioner's underlying criminal trial was harmless error, and I would affirm the judgment of the habeas court.
I disagree with the majority's assessment that the movement and confinement of the victims was "de minimis ...." The victims' testimony reflects that the movement and confinement at issue, occurring at gunpoint, gave rise to very real feelings of fear. The victims testified that they waited until they believed the defendant had fled before emerging from the bathrooms for fear they would be shot if they again confronted the defendant.
Potential victims of robberies often are advised, if robbed, to hand over their valuables without resistance so that their risk of harm will not be increased. Imagine, then, the thoughts that rush through the mind of a cooperative victim when the perpetrator does not flee after obtaining the valuables sought, but instead, continues to threaten his victim with a weapon and forces him into a more secluded location. What victim at that point would not anxiously contemplate the possibility that he may possibly be murdered?
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