Evans v. Warden

Full title: James EVANS #111802 v. WARDEN

Court: Superior Court of Connecticut

Date published: Jan 18, 2018

CV164007657S (Conn. Super. Ct. Jan. 18, 2018)

Opinion

CV164007657S

01-18-2018

James EVANS #111802 v. WARDEN

Kwak, J., Superior Court Judge

UNPUBLISHED OPINION

OPINION

Kwak, J., Superior Court Judge

The petitioner initiated the present matter by way of a pro se petition for a writ of habeas corpus filed on November 13, 2015, and amended by assigned counsel on November 29, 2016. The amended petition challenges the petitioner’s convictions for kidnapping in two separate cases. In count one, the petitioner challenges his conviction in docket number CR94-0163159-T, judicial district of New Haven, for kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B) (" 159 case" ). In count two, the petitioner challenges his conviction in docket number CR94-0163160-T, judicial district of New Haven, for kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(B) (" 160 case" ). The petitioner’s claims in both counts allege violations of State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), and its progeny. As relief, the petitioner seeks an order from the habeas court vacating the two kidnapping convictions, as well as such other and further relief as law and justice require. The respondent’s return denies the petitioner’s two kidnapping convictions violate Salamon and that he is not entitled to have them vacated by the habeas court.

On March 3, 2017, both parties filed motions for summary judgment. The petitioner’s motion for summary judgment argues that he is entitled to judgment granting the claims in both counts. The respondent’s motion for summary judgment argues that judgment must enter denying the amended petition’s counts. Both parties filed a memorandum of law in support of their respective motions. The petitioner and the respondent acknowledge that there are no material issues of fact in dispute and that the habeas court only needs to apply the law to the undisputed facts of the case. On September 20, 2017, the parties appeared before the court for a hearing on the cross motions for summary judgment. Copies of relevant criminal trial transcripts were provided in electronic format and were made a court exhibit.

For the reasons articulated more fully below, the petitioner’s motion for summary judgment is granted and the respondent’s motion for summary judgment is denied.

DISCUSSION

I. Summary Judgment Standard

" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." Rogers v. Commissioner of Correction, 143 Conn.App. 206, 210, 70 A.3d 1068 (2013), citing and quoting Bridgeport v. White Eagle’s Society of Brotherly Help, Inc., 140 Conn.App. 663, 667-68, 59 A.3d 859 (2013).

" Although decisional law suggests that a habeas petitioner is entitled to present evidence on new claims; see Mitchell v. Commissioner of Correction, 93 Conn.App. 719, 725-26, 891 A.2d 25, cert. denied, 278 Conn. 902, 896 A.2d 104 (2006)[,] ... that general proposition cannot be interpreted reasonably as meaning that the court must afford a petitioner an evidentiary hearing when the record plainly shows no genuine issue of material fact and the application of the law requires no evidentiary exposition. To conclude otherwise would be to eviscerate Practice Book § 23-37,¹ which, as noted, provides that the habeas court may grant summary judgment upon its determination that no genuine issue of material fact exists so as to entitle the petitioner to a trial ..." (Footnote omitted.) Lawrence v. Commissioner of Correction, 125 Conn.App. 759, 762, 9 A.2d 772 (2010), cert. denied, 300 Conn. 936, 17 A.3d 474 (2011) (affirming granting of summary judgment where petitioner could not show prejudice in a claim of ineffective assistance of counsel).

1 Practice Book § 23-37 provides that: " At any time after the pleadings are closed, any party may move for summary judgment, which shall be rendered if the pleadings, affidavits and any other evidence submitted show that there is no genuine issue of material fact between the parties requiring a trial and the moving party is entitled to judgment as a matter of law."

" A material fact is a fact that will make a difference in the result of the case ... The facts at issue are those alleged in the pleadings ... The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law ... The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ... The test is whether a party would be entitled to a directed verdict on the same facts ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff’s claim and involves no triable issue of fact.’ (Citations omitted; internal quotation marks omitted.) Lunn v. Cummings & Lockwood, 56 Conn.App. 363, 370, 743 A.2d 653 (2000)." Washington v. Blackmore, 119 Conn.App. 218, 220-21, 986 A.2d 356 (2010).

II. Underlying Facts Not in Dispute

The petitioner was charged with various offenses in three different docket numbers. However, only, the kidnapping offenses in the 159 and 160 cases are at issue in the present matter. The petitioner unsuccessfully appealed from the judgments of conviction. State v. Evans, 44 Conn.App. 307, 689 A.2d 494, cert. denied, 240 Conn. 924, 692 A.2d 819 (1997).

" The convictions stemmed from charges arising out of three cases involving different incidents and different victims, which cases were consolidated for trial. Each case related to one set of facts. In the first case [160 case], the jury found the [petitioner] guilty of burglary in the third degree in violation of § 53a-103(a), kidnapping in the first degree in violation of § 53a-92(a)(2)(B), and robbery in the third degree in violation of § 53a-136(a). In the second case [159 case], the jury found the [petitioner] guilty of burglary in the first degree in violation of § 53a-101(a)(2), kidnapping in the first degree in violation of 53a-92(a)(2)(B), assault in the second degree in violation of § 53a-60(a)(2), and robbery in the third degree in violation of § 53a-136(a). In the third case, the jury found the [petitioner] not guilty of burglary in the first degree in violation of § 53a-101(a)(2), but guilty of the lesser included offense of burglary in the third degree and guilty of assault of a victim sixty or older in the second degree in violation of § 53a-60b(a), and robbery in the third degree in violation of § 53a-136(a)." Id., 309.

The Appellate Court’s decision summarizes the facts as reasonably found by the jury. " In the first case [160 case], at about 4:30 p.m. on July 20, 1994, the [petitioner] entered the premises at 5 Mueller Drive in Hamden. The female occupant was upstairs taking a shower and two female guests, Michelle Onofrio and Gina Jurado, were in the downstairs bedroom when the [petitioner] entered the bedroom and demanded money. When both young women denied having any money, the [petitioner] grabbed one of them and forced her to unscrew the wires to the videocassette recorder (VCR) and Nintendo game in the bedroom. The [petitioner] demanded that they accompany him and pushed them upstairs to another bedroom, where he took jewelry. The [petitioner] then went downstairs to the living room where he took another VCR. Finally, the [petitioner] gathered the items he had taken in the kitchen and left the premises with the items. The two women ran to the bathroom and informed the occupant of what had transpired, and the police were notified.

" In the second case [159 case], at about 6 p.m. on August 24, 1994, the victim was alone in her home at 559 Woodin Street in Hamden, when the [petitioner] came to her door and stated that the victim’s husband had hired him to do some work on the premises. Realizing that the story was fictitious, she immediately closed and bolted the door, ran to the kitchen telephone and dialed 911. Meanwhile, the [petitioner] ran around to the kitchen door, kicked it in, entered the home and tried to wrestle the telephone from her hand. When she would not relinquish it, he bit her hand and punched her in the face. While she continued to clutch the receiver, he ripped the telephone base from the wall and hit her in the eye, face and left shoulder with it. He then knocked her to the floor and continued to beat her. As she struggled to get away, he knocked her to the floor again and choked her. She managed to elude him and ran for the telephone in the family room. The [petitioner] threatened her with bodily harm and ordered her to stop screaming. He knocked the telephone to the floor, dragged her back through the kitchen into the living room and out the front door, then released her and ran away with her pocketbook. When the Hamden police arrived, the victim described her assailant, particularly noting that he had distinctive front teeth, which were ‘chipped, almost evenly, so that it looks almost like a triangle.’

" A week after the incident, the victim identified the [petitioner’s] photograph from an array of eight black and white photographs at the Hamden police station. She asked if any color photographs were available and was taken to the New Haven police station, where she was shown four color photographs of the [petitioner] taken at different times. She identified the fourth photograph, but failed to identify the first three. She later identified the [petitioner] in court. The victim still suffers from injuries to her hip and shoulder incurred during the attack by the [petitioner].

" In the third case, at about 11 p.m. on August 1, 1994, the [petitioner] forced his way into the apartment of an eighty-nine-year-old woman. He grabbed her from behind and forced her to walk through her apartment with him, keeping his hand over her mouth while he looked for items to steal. He took five dollars in quarters from a cedar box on her dresser and demanded that she surrender two rings from her fingers, threatening to remove them by force if she did not comply. Although the victim was unable to identify the robber, two fingerprints found on the cedar box matched the [petitioner’s] fingerprints obtained during a previous arrest." Id., 310-11.

On appeal the petitioner " ... claim[ed] that the trial court improperly (1) found sufficient evidence to sustain the conviction for robbery in the third degree in the first case, (2) admitted into evidence the tape recording of the 911 call in the second case, (3) permitted the identification of the color photograph in the second case, (4) infringed upon the defendant’s right against self-incrimination by ordering him to display his teeth in the presence of the jury in the second case, and (5) ordered such display in the second case knowing that the defendant would refuse to comply." Id., 309. The Appellate Court affirmed the judgments of conviction. Id., 323.

III. Salamon & Luurtsema

" [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 ..." State v. Salamon, supra, 287 Conn. 547. " ... Connecticut courts ultimately assess the importance of a Salamon instruction by scrutinizing how a reasonable jury would perceive the defendant’s restraint of the victim, particularly with respect to when, where, and how the defendant confined or moved the victim." Wilcox v. Commissioner of Correction, 162 Conn.App. 730, 745, 129 A.3d 796 (2016).

In Hinds v. Commissioner of Correction, 321 Conn. 56, 136 A.3d 596 (2016), the Supreme Court recently summarized the " extraordinary circumstances preceding and following [its] decision in Salamon. Under our Penal Code, the hallmark of a kidnapping is an abduction, a term that is defined by incorporating and building upon the definition of restraint. ... State v. Salamon, supra, 287 Conn. at 530, 949 A.2d 1092; ... In 1977, this court squarely rejected a claim that, when the abduction and restraint of a victim are merely incidental to some other offense, such as sexual assault, that conduct cannot form the basis of a guilty verdict on a charge of kidnapping. See State v. Chetcuti, 173 Conn. 165, 170-71, 377 A.2d 263 (1977). The court pointed to the fact that our legislature had declined to merge the offense of kidnapping with sexual assault or with any other felony, as well as its clearly manifested intent in the kidnapping statutes not to impose any time requirement for the restraint or any distance requirement for the asportation. Id. On numerous occasions between that decision and the present petitioner’s criminal trial, this court reiterated that position. See, e.g., State v. Wilcox, 254 Conn. 441, 465-66, 758 A.2d 824 (2000); State v. Amarillo, 198 Conn. 285, 304-06, 503 A.2d 146 (1986); State v. Vass, 191 Conn. 604, 614, 469 A.2d 767 (1983); State v. Johnson, 185 Conn. 163, 177-78, 440 A.2d 858 (1981), aff’d, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823 (1983); State v. Briggs, 179 Conn. 328, 338-39, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S.Ct. 3000, 64 L.Ed.2d 862 (1980); State v. DeWitt, 177 Conn. 637, 640-41, 419 A.2d 861 (1979); State v. Lee, 177 Conn. 335, 342-43, 417 A.2d 354 (1979). The court appeared to leave open the possibility that there could be a factual situation in which the asportation or restraint was so miniscule that a conviction of kidnapping would constitute an absurd and unconscionable result that would render the statute unconstitutionally vague as applied. See State v. Troupe, 237 Conn. 284, 315, 677 A.2d 917 (1996); State v. Tweedy, 219 Conn. 489, 503, 594 A.2d 906 (1991). A kidnapping conviction predicated on the movement of the sexual assault victim from one room in her apartment to another, however, was deemed not to constitute such a result. State v. Tweedy, supra, at 503, 594 A.2d 906.

" In State v. Luurtsema, 262 Conn. 179, 203-04, 811 A.2d 223 (2002) (Luurtsema I ), decided a few months after the present petitioner’s criminal trial concluded, this court foreclosed the possibility of an absurd or unconscionable result as a matter of statutory interpretation. In that case, the defendant, Peter Luurtsema, had moved the victim from the couch to the floor, forced the victim’s legs apart, and manually choked her while attempting to perpetrate a sexual assault. Id., at 200, 811 A.2d 223. The defendant was convicted of attempt to commit sexual assault in the first degree, kidnapping in the first degree, and assault in the second degree. This court again rejected the request to interpret our kidnapping statute so as to require that the restraint and abduction to support kidnapping exceed that which is incidental to the commission of another crime. In accordance with the consistent refrain of the decisions that preceded it, the court in Luurtsema I concluded that, in light of the express statutory terms, ‘[t]he defendant’s interpretation of the kidnapping statute is simply not the law in this state.’ (Internal quotation marks omitted.) Id., at 202, 811 A.2d 223.

" Six years later, in Salamon, the court was persuaded to reexamine the broad, literal interpretation to which it had adhered for more than three decades. See State v. Salamon, supra, 287 Conn. at 513-14, 949 A.2d 1092. In concluding that it must overrule its long-standing interpretation, the court went beyond the language of the kidnapping statutes to consider sources that it previously had overlooked. It explained: ‘Upon examination of the common law of kidnapping, the history and circumstances surrounding the promulgation of our current kidnapping statutes and the policy objectives animating those statutes, we now conclude the following: Our legislature, in replacing a single, broadly worded kidnapping provision with a gradated scheme that distinguishes kidnappings from unlawful restraints by the presence of an intent to prevent a victim’s liberation, intended to exclude from the scope of the more serious crime of kidnapping and its accompanying severe penalties those confinements or movements of a victim that are merely incidental to and necessary for the commission of another crime against that victim. Stated otherwise, to commit a kidnapping in conjunction with another crime, a defendant must intend to prevent the victim’s liberation for a longer period of time or to a greater degree than that which is necessary to commit the other crime.’ (Emphasis added.) Id., at 542, 949 A.2d 1092.

" Following that decision, Luurtsema filed a habeas petition seeking to have the holding in Salamon applied retroactively to his case. Luurtsema v. Commissioner of Correction, [ 299 Conn. 740, 743, 12 A.3d 817 (2011) ]. In Luurtsema II, this court concluded as a matter of state common law that policy considerations weighed in favor of retroactive application of Salamon to collateral attacks on judgments rendered final before that decision was issued. In response to a host of arguments advanced by the state against retroactivity, the court concluded: ‘We are not unsympathetic to the legitimate concerns ... relating to the general importance of preserving the finality of criminal convictions ... [H]owever, we are convinced that ... in cases such as this, the interests of finality must give way to the demands of liberty and a proper respect for the intent of the legislative branch.’ Id., at 766, 12 A.3d 817." (Footnotes omitted.) Hinds v. Commissioner of Correction, supra, 321 Conn. 65-69.

IV. Count One- Salamon /Luurtsema Violation in 159 Case

The amended petition in count one, paragraphs 51 and 52, alleges that the " restraint underlying 159 did not reasonably exceed that which was necessary to accomplish or complete burglary in the first degree and/or robbery in the first degree, but was merely incidental to the restraint necessary to commit burglary in the first degree and/or robbery in the first degree. The restraint ... was not sufficient to accomplish or complete kidnapping in the first degree in addition to the aforementioned robbery in the first degree and/or burglary in the first degree charges." The respondent’s return denies these allegations.

The petitioner’s memorandum in support of the motion for summary judgment argues that the facts of the 159 case warrant an instruction that comports with Salamon . The respondent’s memorandum does not address the issue of whether the facts warrant a Salamon instruction.² However, both the petitioner and the respondent agree that no Salamon instruction was given.

2 During oral argument, the respondent argued that the facts of the cases did not warrant a Salamon instruction.

The court’s review of the criminal trial transcripts shows that after the petitioner kicked in the victim’s kitchen door, he entered the home and assaulted her to disrupt and end her telephone call. The petitioner attempted to quiet the victim, who was yelling and screaming, by threatening her with physical harm. A physical struggle ensued. The physical struggle continued and carried over into an adjacent room that the victim was attempting to reach to use another phone. After further threats made by the petitioner, he put the victim in a headlock and dragged her into another room. The victim testified that she was not trying to get to another phone but instead get to the patio doors. The petitioner dragged the victim into yet another room. The petitioner then demanded the victim’s pocketbook, which was in the kitchen, and dragged the victim to the kitchen to obtain her pocketbook. The petitioner took the pocketbook and, while still maintaining the victim in a headlock, went with her to the front door, exited the house, and released the victim from the headlock after they descended the front stairs. The petitioner then fled.

The court concludes that the facts and circumstances of the 159 case clearly would require a kidnapping instruction that comports with Salamon .

The petitioner argues that it was not harmless error that a Salamon instruction was not given to the jury. The petitioner further argues that the petitioner’s restraint of the victim was merely incidental to the other felony offenses (i.e., robbery and/or burglary) and that the jury would not have convicted the petitioner if a proper kidnapping instruction had been given. The respondent argues that the lack of a proper kidnapping instruction was harmless error and that a properly instructed jury would have convicted the petitioner of kidnapping.

The Supreme Court in Hinds " ... underscore[d] that a determination of sufficient evidence to support a kidnapping conviction is not the yardstick by which to assess the likelihood of a different result ..." Hinds v. Commissioner of Correction, supra, 321 Conn. 91. The Supreme Court with approval cited and quoted a trial court decision by Judge Mullins in Mitchell v. Warden, Superior Court, judicial district of Tolland, Docket No. CV-10-4003542-S, 2014 WL 1283215 (February 27, 2014) (57 Conn.L.Rptr. 776). The Mitchell decision, according to the Supreme Court, " reflect[ed] a more nuanced and appropriate comparison of cases with regard to these essential aspects [i.e., the intent to prevent liberation or intent to move/confine; the degree and nature of the restraint of asportation that informs the inference of intent as circumstantially evidenced by the perpetrator’s conduct] of Salamon ." Hinds v. Commissioner of Correction, supra, 321 Conn. 91-92.

The nuanced and appropriate comparison was between a group of cases that demonstrated that " ... multiple offenses are more readily distinguishable- and, consequently, more likely to render the absence of a Salamon instruction harmless- when the offenses are separated by greater time spans, or by more movement or restriction of movement. Conversely, multiple offenses occurring in a much shorter or more compressed time span make the same determination more difficult and, therefore, more likely to necessitate submission to a jury for it to make its factual determinations regarding whether the restraint is merely incidental to another, separate crime. In those scenarios, where kidnapping and multiple offenses occur closer in time to one another, it becomes more difficult to distinguish the confinement or restraint associated with the kidnapping from another substantive crime. The failure to give a proper Salamon instruction in those scenarios is more likely to result in harmful error precisely because the difficulty in determining whether each crime has independent criminal significance." Id., 92-93, citing and quoting from Mitchell v. Warden, supra .

The Supreme Court noted that " [t]his discussion effectively illustrates why the petitioner’s claim [in Hinds ] would succeed ... [in his habeas claims]. The close alignment in time and place of [the victim’s] restraint and abduction to the sexual assault call into serious question whether reasonable jurors would conclude that the petitioner intended to restrain [the victim] for any purpose other than the commission of the sexual assault. Accordingly, there is a substantial likelihood that reasonable jurors would conclude that the state failed to meet its burden of proving beyond a reasonable doubt that the conduct had sufficient independent significance to warrant a conviction of kidnapping in the first degree." Hinds v. Commissioner of Correction, supra, 321 Conn. 93-94.

This court has carefully reviewed the Mitchell decision, in particular, the comparison of cases and the factual scenarios described by the Supreme Court as " nuanced and appropriate." Mitchell, which this court finds to be highly persuasive, concluded that the lack of a Salamon instruction was not harmless error. The Supreme Court’s discussion in Hinds of Mitchell further underscores that decision’s persuasiveness. Additionally, it is noteworthy that the respondent did not appeal from the granting of habeas corpus relief in Mitchell ,³ which also makes that decision even more persuasive.

3 The kidnapping conviction at issue in Mitchell coincidentally occurred in the identical judicial district as the present matter. Judge Mullins granted habeas corpus relief and vacated the kidnapping conviction and resultant sentence. The matter was referred back to the criminal trial court in New Haven for further proceedings in accordance with the law. The respondent did not appeal from that judgment.

The petitioner’s conduct vis-à -vis the victim in the 159 case demonstrates behavior on a continuum. The petitioner saw the victim inside the house, forced his way in, committed an assault and then a robbery. The petitioner’s actions from the moment he entered the victim’s house until he fled show that he sought to disrupt and prevent the victim’s communications. The petitioner ripped out the phone in the kitchen, prevented the victim from using another phone in an adjacent room, and had the victim in a headlock to maintain control over her until he fled. The petitioner both assaulted the victim and committed a robbery while he prevented her from using the telephone and yelling for help.

The movements of the victim may, or may not, have significance distinct from the assault and the robbery. Even the petitioner’s exiting the front door while maintaining a headlock on the victim can be reasonably understood to prevent the victim from again using the phone, at least until the petitioner left. It is also possible that a jury could conclude that there was movement or prevention of movement that had independent significance sufficient to support a kidnapping conviction. Stated somewhat differently, the petitioner’s restraint of the victim over the ongoing course of conduct, during which several offenses occurred close in time, does not demonstrate to this court that a missing Salamon instruction was a harmless error. A properly instructed jury could reasonably conclude that any restraint or movement of the victim was incidental to the robbery or burglary.

Consequently, the court concludes that the petitioner is entitled to summary judgment as to the claim in count one.

V. Count Two- Salamon /Luurtsema Violation in 160 Case

In count two, paragraphs 63 and 64, the petitioner alleges that the " restraint underlying 160 did not reasonably exceed that which was necessary to accomplish or complete burglary in the first degree nor robbery in the first degree, but was merely incidental to the restraint necessary to commit burglary in the first degree and/or robbery in the first degree. The restraint ... was not sufficient to accomplish or complete kidnapping in the first degree in addition to the aforementioned robbery in the first degree and/or burglary in the first degree charges." The respondent’s return denies these allegations.

The petitioner’s memorandum in support of the motion for summary judgment argues that the facts of the 160 case warrant an instruction that comports with Salamon . The respondent’s memorandum does not address the issue of whether the facts warrant a Salamon instruction. However, both the petitioner and the respondent agree that no Salamon instruction was given.

A review of the criminal trial transcript shows that the petitioner moved two individuals around to effectuate a robbery, including having the victims unplug electronic devices that were then taken by the petitioner. The movements included moving from one room to another adjacent room (kitchen to the living room). The petitioner also had the victims move to an upstairs bedroom so that he could steal valuables from a dresser located in the bedroom. The petitioner then had the victims go back downstairs and, after he threatened that he would kill them if they told anyone about the robbery, fled from the house.

The court concludes that the facts and circumstances of the 160 case also clearly would require a kidnapping instruction that comports with Salamon .

The petitioner argues that it was not harmless error that a Salamon instruction was not given to the jury. The petitioner further argues that the petitioner’s restraint of the victim was merely incidental to the other felony offenses (i.e., robbery and/or burglary) and that the jury would not have convicted the petitioner if a proper kidnapping instruction had been given. The respondent argues that the lack of a proper kidnapping instruction was harmless error and that a properly instructed jury would have convicted the petitioner of kidnapping.

The petitioner’s conduct vis-à -vis the victims in the 160 case demonstrates behavior on a continuum. The petitioner effectuated the robbery by compelling the victims to move from room to room, as well as downstairs to upstairs, so he could gather valuables in different locations. The petitioner even compelled the victims to disconnect electronic devices so that he could remove them from the house. For the same reasons articulated above in the analysis of the claim in count one, a properly instructed jury reasonably could conclude that any movement or restraint of the victims in the 160 case was merely incidental to the commission of the burglary or robbery.

The court concludes, therefore, that the petitioner is entitled to summary judgment as to the claim in count two.

CONCLUSION

The petitioner’s motion for summary judgment is granted and the respondent’s motion for summary judgment is denied. Judgment shall enter granting counts one and two of the amended habeas corpus petition. The petitioner’s convictions and sentences for kidnapping in the first degree in docket numbers CR94-163159-T and CR94-163160-T, judicial district of New Haven, are vacated and the matters are referred to the criminal trial court for further proceedings in accordance with the law. The judgment of this court is subject to Rules of Appellate Procedure § 61-11.

It is so ordered.