Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19
MEMORANDUM OF DECISION
Vernon D. Oliver, J.
The petitioner, Phillip White, III, initiated this second petition for a writ of habeas corpus, claiming that his 2004 conviction for kidnapping in the second degree with a firearm should be vacated and that he should receive a new trial because his criminal jury was instructed in accordance with a legal doctrine that has subsequently been found to be a violation of due process rights as set forth in State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). The respondent's return denies that the petitioner is entitled to habeas corpus relief and leaves him to his burden of proof. Thereafter, the petitioner has filed a Motion for Summary Judgment pursuant to Practice Book § 23-27, asserting that there is no genuine issue of material fact, that the issues raised in the pleadings are issues of law and that the petitioner is entitled to judgment in his favor as a matter of law. The respondent filed an objection to the motion for summary judgment, and to which the petitioner filed a reply.
On June 1, 2015, the parties appeared before the court for a hearing on the motion for summary judgment and the objection thereto. By way of a stipulation, the parties agreed to have the court consider the criminal trial transcripts of January 12 and 13, 2004, as full exhibits, as well as that the arguments presented on June 1, 2015, are to be treated by the court as a full habeas trial on the papers. The court accepted the parties' stipulation. For the reasons explained in greater detail below, the petitioner's motion for summary judgment is granted.
The petitioner was the defendant in criminal docket number CR03-190578-T, judicial district of Fairfield at Bridgeport. The state in an amended information charged the petitioner with one count of Kidnapping in the second degree with a firearm in violation of General Statutes § 53a-94a, and one count of Burglary in the second degree with a firearm in violation of General Statutes § 53a-102. A jury returned verdicts of guilty on both of those counts and the petitioner was sentenced by the court, Owens, J., to a total effective sentence of fifteen years of incarceration. The petitioner appealed from the judgment of conviction.
The Appellate Court's decision summarizes the underlying facts as reasonably found by the jury: " On June 24, 2003, the complainant was alone inside her parents' home in the town of Fairfield. At approximately 4 p.m., the [petitioner] approached the front door and rang the doorbell. The complainant answered the door, and the [petitioner] informed her that he was selling magazine subscriptions to earn money for college. The [petitioner] asked the complainant to look at a brochure to determine if she was interested in purchasing any of the magazines. The complainant informed the [petitioner] that she could not purchase anything because her parents were not home. She recommended that he return sometime around 6 p.m. when her parents would be home from work.
" The [petitioner] asked the complainant if he could use the bathroom. The complainant hesitated. The [petitioner] explained that he really had to use the bathroom. Without invitation, the [petitioner] brushed by the complainant, who was standing in the doorway, and walked straight down the hallway of the foyer toward the bathroom located off the kitchen. The [petitioner] remained in the bathroom for approximately thirty seconds. When he emerged from the bathroom, the [petitioner] walked slowly toward the complainant. While the [petitioner] was in the bathroom, the complainant did not hear the bathroom door shut or the water running from the bathroom plumbing. The complainant remained near the front doorway while the [petitioner] was in the bathroom. The [petitioner], again, asked the complainant to look at the magazine brochure. The complainant briefly looked at the brochure, handed it back to the [petitioner] and told him that she had not heard of any of the magazines on the list. The [petitioner] took the brochure, walked toward the door and closed the door. Placing his hand in the rear pocket of his trousers, the [petitioner] told the complainant that he had a gun and ordered her to sit on a couch in the den adjacent to the foyer. The complainant entered the den and sat on the couch closest to the foyer. The [petitioner] asked her what time her parents would arrive home. Though the complainant had told him earlier that her parents would be home at approximately 6 p.m., this time she told the [petitioner] that they would arrive at approximately 5:30 p.m., hoping that he would believe that her parents would arrive sooner. The [petitioner] then asked if anyone else was home, and she told him that no one else was home at the time.
" After approximately three minutes, the [petitioner] told the complainant to stand up because he wanted to go upstairs. Walking sideways facing the complainant, the [petitioner] slowly approached the stairwell just off the den. After taking several slow steps, the [petitioner] placed his hand on the complainant's elbow to hurry her along. As the [petitioner] touched the complainant's arm, she began to scream and cry. The [petitioner] told the complainant to be quiet, and she attempted to leave the house via the front door. The [petitioner] blocked the doorway, as the complainant continued to scream. The [petitioner] suddenly stopped and said that he was just playing. The [petitioner] then called the complainant a 'scaredy-ass, ' opened the front door and ran out of the house. Approximately ten minutes elapsed from the time the [petitioner] first arrived at the home to the time that he departed.
" The complainant closed the door and locked it. She immediately called a friend, who lived up the street, to warn her that the [petitioner] was running in her direction. She was unable to contact her friend. The complainant then unsuccessfully called both of her parents. Finally, she reached her boyfriend by telephone and told him what had happened. She then called the police and gave a brief description of the [petitioner]. Within approximately ten minutes, Officer Joseph Kalson of the Fairfield police department arrived at the home. The complainant again gave a description of the [petitioner], and Kalson broadcast over the police radio that the original description was correct. Officer Christopher Ioli of the Fairfield police department also responded to the call. Ioli observed the [petitioner] jogging on a street. By the time that loli had turned his vehicle around and turned down that street, the [petitioner] was sitting on the front lawn of a house. According to Ioli, the [petitioner] was sweating and appeared slightly nervous. Ioli conducted a patdown search for weapons but found none. The complainant was transported to that location, where she identified the [petitioner], and the [petitioner] was taken into custody." State v. White, 97 Conn.App. 763, 766-68, 906 A.2d 728, cert. denied, 280 Conn. 939, 912 A.2d 476 (2006).
" On appeal, the [petitioner] claim[ed] that (1) there was insufficient evidence to support a conviction for kidnapping in the second degree with a firearm, (2) the trial court improperly instructed the jury on the element of intent for both the kidnapping and burglary charges, (3) the court improperly failed to instruct the jury on criminal trespass in the second degree, as a lesser included offense of burglary in the second degree with a firearm, and (4) the court improperly instructed the jury on the elements of burglary in the second degree, permitting the jury to return a nonunanimous verdict . . ." (Footnote omitted.) Id., 765. The Appellate Court agrees with the third claim and " reverse[d] the judgment of conviction on count two, burglary in the second degree with a firearm, and remand[ed] the case for a new trial on that charge, and . . . affirm[ed] the judgment of conviction on count one, kidnapping in the second degree with a firearm." Id.
The Appellate Court's decision contains the following relevant discussion of the kidnapping conviction and the sufficiency of evidence claim thereto: " To find the [petitioner] guilty of kidnapping in the second degree with a firearm in violation of § 53a-94a(a), it was necessary for the jury to find that the state proved beyond a reasonable doubt that he (1) restrained the complainant, (2) with the intent to prevent her liberation, (3) by using or threatening to use physical force or intimidation and (4) in the commission of such offense, he represented by his words or conduct that he possessed a pistol, revolver, machine gun, shotgun, rifle or other firearm. See General Statutes § § 53a-94a(a), 53a-94(a), 53a-91(2)(B) . . . [K]idnapping in the second degree with a firearm is a specific intent crime.
" 'It is well established that [t]he question of intent is purely a question of fact . . . The state of mind of one accused of a crime is often the most significant and, at the same time, the most elusive element of the crime charged . . . Because it is practically impossible to know what someone is thinking or intending at any given moment, absent an outright declaration of intent, a person's state of mind is usually proven by circumstantial evidence . . . Intent may be and usually is inferred from conduct . . . [W]hether such an inference should be drawn is properly a question for the jury to decide.' (Internal quotation marks omitted.) State v. Watson, 50 Conn.App. 591, 605, 718 A.2d 497, cert. denied, 247 Conn. 939, 723 A.2d 319 (1998), cert. denied, 526 U.S. 1058, 119 S.Ct. 1373, 143 L.Ed.2d 532 (1999), cert. dismissed, 255 Conn. 953, 772 A.2d 153 (2001).
" The jury could have reasonably found that the state proved beyond a reasonable doubt that the [petitioner] intended to cause the result of preventing the complainant's liberation. There was sufficient evidence in the complainant's testimony that the [petitioner] possessed the requisite intent. The complainant testified that the [petitioner] stood between her and the front door and closed the front door. According to the complainant, the [petitioner] placed his hand in the rear pocket of his trousers, informed her he had a gun and told her to go into the den. After approximately three minutes, the [petitioner] ordered the complainant to stand and explained that he wanted to go upstairs. The [petitioner], with one hand remaining in his rear pocket, placed his other hand on the complainant's elbow to hurry her along. As the [petitioner] touched the complainant's arm, she began to scream and cry. The [petitioner] told the complainant to be quiet, and she attempted to leave the house via the front door. The [petitioner] blocked the doorway. On the basis of this evidence, it was reasonable for the jury to infer from the [petitioner's] conduct that he possessed the specific intent to prevent the complainant's liberation. The [petitioner] is not entitled to a judgment of acquittal on the charge of kidnapping in the second degree with a firearm." (Footnote renumbered.) State v. White, supra, 97 Conn.App. 770-71.
After the Appellate Court remanded the case for a new trial on the burglary charge, the state entered a nolle prosequi as to that charge. Consequently, the sole basis for the petitioner's present confinement is the conviction for one count of kidnapping in the second degree with a firearm, now untethered and unconnected to any other offenses. The petitioner's total effective sentence, however, remained unchanged at fifteen years of incarceration.
The petitioner has previously sought habeas corpus relief in a prior petition in which he alleged ineffective assistance of counsel. After a trial, the first habeas court in part denied and in part granted the petition for a writ of habeas corpus. White v. Warden, Superior Court, judicial district of Tolland, docket No. CV04-4000100-S, 2007 Conn. Super. LEXIS 2648 (2007 Ct.Sup. 17084) (A. Santos, J, October 15, 2007). The petitioner's right to sentence review was restored by the first habeas court. The petitioner appealed from the judgment of the first habeas court, and which the Appellate Court affirmed. White v. Commissioner of Correction, 113 Conn.App. 901, 964 A.2d 1261 (per curiam), cert. denied, 293 Conn. 904, 976 A.2d 705 (2009). The petitioner applied for sentence review. A panel of the Sentence Review Division affirmed his sentence. State v. White, Superior Court, judicial district of Fairfield at Bridgeport, docket No. CR02-190578, 2008 Conn. Super. LEXIS 3377 (2009 Ct.Sup. 3263) (Iannotti, J., White, J, Alexander, J., February 2, 2009).
The petitioner then brought this habeas corpus petition on July 28, 2014. The petitioner alleges that his conviction for kidnapping must be vacated because the jury was not ...