Argued September 16, 2015.
Amended petition for a writ of habeas corpus, brought to the Superior Court in the judicial district of Tolland and tried to the court, Oliver, J.; judgment granting the petition, from which the respondent, on the granting of certification, appealed to this court.
The petitioner, who had been convicted of, inter alia, the crimes of kidnapping in the first degree and sexual assault in the first degree, sought a writ of habeas corpus challenging his kidnapping conviction on the ground that the trial court improperly failed to instruct the jury, in accordance with State v. Salamon (287 Conn. 509, 949 A.2d 1092), that in order to find him guilty of kidnapping in the first degree, it had to find beyond a reasonable doubt that his restraint of the victim was not merely incidental to his sexual assault of her. At the petitioner's criminal trial, the trial court did not instruct the jury in accordance with Salamon, which had not been decided at the time of the petitioner's criminal trial and direct appeal. The respondent Commissioner of Correction alleged as a special defense that the petitioner's claim of instructional error was procedurally defaulted. The habeas court granted the petitioner's habeas petition, concluding that the petitioner had demonstrated sufficient cause for his procedural default, and that he had suffered actual prejudice because the evidence in the record failed to show that his restraint of the victim was sufficiently disconnected from his sexual assault of her so as to render the absence of the Salamon instruction harmless. The habeas court vacated the petitioner's kidnapping conviction and remanded the case for a new trial on that charge. Thereafter, on the granting of certification, the respondent appealed to this court, claiming, inter alia, that the habeas court erred in its determination that the petitioner had suffered actual prejudice. Held that the habeas court improperly determined that the petitioner suffered actual prejudice as a result of the trial court's failure to instruct the jury in accordance with Salamon : this court's review of the record clearly revealed that a reasonable jury could not have found beyond a reasonable doubt that the petitioner's restraint of the victim was merely incidental to his sexual assault of her, as the state presented overwhelming evidence that the petitioner had restrained the victim for a substantial period of time, and that the manner and location of his restraint of her demonstrated his intent to restrain her for a longer period of time and to a greater degree than necessary to commit the sexual assault, all of which established that the petitioner's restraint of the victim was sufficiently disconnected from his sexual assault of her so as to render the absence of the Salamon instruction harmless; accordingly, the petitioner's kidnapping conviction did not constitute a fundamental unfairness nor a miscarriage of justice.
Sarah Hanna, assistant state's attorney, with whom, on the brief, were Peter A. McShane, state's attorney, and Jo Anne Sulik, supervisory assistant state's attorney, for the appellant (respondent).
Jennifer B. Smith, assigned counsel, for the appellee (petitioner).
Sheldon, Keller and Harper, Js. KELLER, J. In this opinion the other judges concurred.
[162 Conn.App. 732] The respondent, the Commissioner of Correction, appeals from the judgment of the habeas court granting the amended petition for a writ of habeas corpus filed by the petitioner, Howard Wilcox. On appeal, the respondent claims that the habeas court improperly determined that the petitioner (1) established good cause for failing to raise an instructional error claim at trial or on direct appeal, and (2) established that he suffered actual prejudice from the trial court's jury instructions. We reverse the judgment of the habeas court and remand the case to that court with direction to dismiss the petition.
The following facts and procedural history are relevant to this appeal. In 1997, the petitioner was convicted following a jury trial of one count of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), one count of attempt to commit sexual assault in the first degree in violation of General Statutes § § 53a-49 (a) (2) and 53a-70 (a) (1), one count of assault in the third degree in violation of General Statutes § 53a-61 (a) (1), and one count of falsely reporting a motor vehicle theft in violation of General Statutes § 14-198. The trial court sentenced the petitioner to a total effective sentence of forty years incarceration, execution suspended after thirty-four years, followed by ten years of probation. The defendant appealed his conviction to this court and our Supreme Court transferred the appeal to itself pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.
In 2000, our Supreme Court affirmed the judgment of conviction, at which time it set forth the following [162 Conn.App. 733] facts underlying the crimes: " During the evening of September 16, 1996, the victim walked the short distance from her home in East Haddam to J.R.'s Cafe [J.R.'s] in Moodus. The [petitioner], with whom the victim was not acquainted, already was at the bar when she arrived. The victim remained at J.R.'s for approximately one and one-half to two hours during which time she had several drinks, danced, and conversed with acquaintances. The victim also asked the [petitioner] to dance, tugging his arm to encourage him to join her on the dance floor. After dancing with the victim, the [petitioner] bought the victim a drink and they conversed for a few minutes thereafter.
" At approximately 12:30 a.m. on September 17, 1996, the victim left the bar and started walking home. The [petitioner] exited the bar immediately after the victim. As the victim walked down one of the driveways leading away from J.R.'s, the [petitioner] drove up next to her and offered to drive her home. The victim accepted his offer and voluntarily entered the [petitioner's] vehicle. The victim gave the [petitioner] directions to her home, but he failed to turn onto her road as instructed. The victim attempted to exit the moving car by opening the door, but the [petitioner] grabbed her by the arm and pulled her back into the vehicle.
" The [petitioner] then drove the victim to a remote area of Cockaponset State Forest, where he ...