Argued October 6, 2015
Jo Anne Sulik, supervisory assistant state’s attorney, with whom, on the brief, were Kevin D. Lawlor, state’s attorney, Erika L. Brookman, assistant state’s attorney, and Mary M. Galvin, former state’s attorney, for the appellant in Docket No. SC 19393 and appellee in Docket No. SC 19394 (respondent).
Adele V. Patterson, senior assistant public defender, for the appellee in Docket No. SC 19393 and appellant in Docket No. SC 19394 (petitioner).
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and DiPentima, Js. [*]
In 2002, the petitioner, Walter Hinds, was convicted of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1) and kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A). Three years after the petitioner’s judgment of conviction was final, this court overruled an interpretation of our kidnapping statutes to which it had adhered in the face of numerous challenges over more than three decades, under which the crime of kidnapping did not require that the restraint used be more than that which was incidental to and necessary for the commission of another crime against the victim. See State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008). Subsequently, this court determined that the holding in Salamon overruling that overly broad interpretation applied retroactively to collateral attacks on final judgments. See Luurtsema v. Commissioner of Correction, 299 Conn. 740, 751, 12 A.3d 817 (2011) (Luurtsema II). The principal issues in the present case are whether the petitioner’s failure to challenge our long-standing interpretation of kidnapping in his criminal proceedings requires him to overcome the bar of procedural default, and what constitutes the proper standard for assessing whether the petitioner is entitled to a new trial on that charge.
Upon our grants of certification, the respondent, the Commissioner of Correction, and the petitioner separately appealed from the Appellate Court’s judgment, which affirmed the judgment of the habeas court granting in part and denying in part the petitioner’s petition for a writ of habeas corpus and ordering a new trial on the kidnapping charge. Hinds v. Commissioner of Correction, 151 Conn.App. 837, 839, 97 A.3d 986 (2014). In his certified appeal, the respondent contends that the Appellate Court applied the wrong cause and prejudice standards in concluding that the petitioner had overcome his procedural default of a challenge to the kidnapping instruction and therefore could prevail on the merits. In the petitioner’s appeal, he contends that the Appellate Court improperly affirmed the habeas court’s judgment insofar as it concluded that a due process claim based on the cumulative effect of trial errors that individually were harmless is not cognizable under Connecticut law.
With respect to the respondent’s appeal, we conclude that Luurtsema II’s retroactivity decision compels the conclusion that challenges to kidnapping instructions in criminal proceedings rendered final before Salamon are not subject to the procedural default rule. We further conclude that the petitioner is entitled to a new trial on the kidnapping charge because the omission of a Salamon instruction was not harmless beyond a reasonable doubt. With respect to the petitioner’s appeal, we conclude that, even assuming we were to recognize cumulative trial error as a basis for a due process violation, the improprieties in the petitioner’s criminal trial would not rise to such a level. Therefore, we affirm the judgment of the Appellate Court.
The jury reasonably could have found the following facts in support of the kidnapping and sexual assault convictions, none of which the petitioner disputed except his identity as the perpetrator. On August 28, 2000, at approximately 9 p.m., sixteen year old K left the Super Stop & Shop supermarket in Milford on foot to head to a friend’s apartment that was approximately five minutes away. En route, K cut through the property of In-Line Plastics Tool Company (In-Line Plastics). As she approached the property, K noticed a pickup truck exit the driveway of In-Line Plastics, but then reenter and come to a stop in the parking area. As she walked past the truck, she turned around and observed that the driver had exited the vehicle and was walking behind her. She continued walking and, upon turning around again, she saw that the driver was right behind her and wearing only underwear and a sleeveless shirt. Although it was nighttime, the lights on the surrounding buildings sufficiently illuminated the area to enable K to see the face of the driver, the petitioner.
At that point, K started to run through the parking lot of In-Line Plastics, in the direction of some trees between the back parking lot and the route to her friend’s apartment. The petitioner ran after K, grabbed her, and put one of his hands around her waist and his other hand over her mouth. He instructed her not to scream or he would kill her. The petitioner then threw K down and dragged her by the legs to a grassy area between the In-Line Plastics parking lot and a small house, behind an overgrown bush where it was darker. The petitioner sat on K’s chest with his legs on the outside of her arms so she could not move and instructed K to open her mouth. He inserted his penis into her mouth and forced her to perform fellatio on him, ejaculating into her mouth. The petitioner then patted her on the cheek and told her she could leave. Too afraid to move, K remained where she was. As the petitioner walked back toward his truck, K pleaded with him not to kill her, telling him that she would not tell anybody what had happened. The petitioner turned around and looked at K, again enabling her to see his face. He then entered his truck and drove away. K’s description of her attacker and his truck eventually led to the petitioner’s identification and arrest.
The record reflects the following procedural history. At trial, the jury was instructed, without objection, on the elements of abduction and restraint in accordance with established law regarding kidnapping. Following his conviction of sexual assault in the first degree and kidnapping in the first degree, the defendant claimed on direct appeal that the trial court had committed four improprieties. See State v. Hinds, 86 Conn.App. 557, 558–59, 861 A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d 372 (2005). None related to the jury instruction on kidnapping. The Appellate Court separately examined each of the claimed improprieties, and concluded that three improprieties had occurred but each was harmless. Id., 563–77. Accordingly, it affirmed the judgment of conviction. Id., 577. This court denied the petitioner’s petition for certification to appeal. See State v. Hinds, 273 Conn. 915, 871 A.2d 372 (2005).
Thereafter, this court issued its decisions in Salamon and Luurtsema II, respectively overruling its overly broad interpretation of our kidnapping statutes and deeming the interpretation pursuant to Salamon to apply retroactively. Following the appointment of habeas counsel, the petitioner filed a second amended petition for a writ of habeas corpus. Therein, he alleged that: (1) there was constitutional error in the kidnapping instruction, pursuant to Salamon and Luurtsema II; and (2) there were cumulative trial errors that violated his right to a fair trial. The respondent asserted procedural default as affirmative defenses to both counts, as well as failure to state a cognizable claim with respect to the second count. The habeas court granted the petition as to the first count, concluding that the petitioner had proved that he was entitled to the Salamon limiting instruction and that it was not clear beyond a reasonable doubt that the verdict on the kidnapping charge would have been the same had the jury been given the instruction. The habeas court rejected the respondent’s procedural default defense, reasoning that Luurtsema II compelled such a result and that good cause existed for trial counsel’s failure to seek a Salamon instruction in any event because firmly established law would have made a request for such an instruction futile. The habeas court denied the petition as to the second count, concluding that a due process claim of cumulative harm had not been recognized in Connecticut.
Both parties appealed from the judgment, and the Appellate Court consolidated the appeals. See Hinds v. Commissioner of Correction, supra, 151 Conn.App. 839 n.1. Although the Appellate Court affirmed the habeas court’s judgment; id., 839; it adopted different reasoning with respect to the kidnapping instruction. It determined that the proper framework for addressing that claim in light of the procedural default defense is the cause and prejudice standard set forth in Wain-wright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), as adopted by this court in Johnson v. Commissioner of Correction, 218 Conn. 403, 409, 589 A.2d 1214 (1991). See Hinds v. Commissioner of Correction, supra, 151 Conn.App. 852–53. The Appellate Court concluded that the cause standard had been met because there was no reasonable basis for the petitioner to have asked for an instruction that had been rejected by controlling decisional law. Id., 855. The Appellate
Court further concluded that, although the habeas court’s decision suggested that it improperly had placed the burden on the respondent toprove that the omission of the Salamon instruction was harmless; id., 855–56; the petitioner had demonstrated the requisite actual and substantial prejudice. Id., 858–59. The court cited the close alignment in time and place of the victim’s restraint and abduction to the sexual assault and the fact that the proper instruction would have required the jury to consider whether the restraint and abduction were merely incidental to the sexual assault. Id., 859. In sum, it concluded that ‘‘[t]he failureto give a Salamon instruction, under the facts presented at trial, substantially deprived the petitioner of his constitutional right to have the jury properly informed of the meaning of the language of the kidnapping charge.’’ Id. The parties’ certified appeals to this court followed.
In our review of the issues raised, we are mindful that, while ‘‘[t]he underlying historical facts found by the habeas court may not be disturbed unless the findings were clearly erroneous . . . [q]uestions of law and mixed questions of law and fact receive plenary review.’’ (Internal quotation marks omitted.) Crawford v. Commissioner of Correction, 294 Conn. 165, 174, 982 A.2d 620 (2009). Because the certified appeals do not involve challenges to facts found, we apply plenary review.
We begin with the respondent’s appeal challenging the Appellate Court’s affirmance of the habeas court’s judgment insofar as it granted the petitioner a new trial on the kidnapping charge. The respondent does not challenge the Appellate Court’s conclusion that the habeas court properly determined that a Salamon limiting instruction would apply under the facts of the present case. Rather, he contends that the Appellate Court did not correctly apply the legal standard for assessing cause and prejudice to overcome procedural default. With respect to cause, he contends that Sala-mon itself disproves the Appellate Court’s determination that the law on kidnapping was settled at the time of the petitioner’s criminal trial. He further contends that, even if the law was settled, futility does not establish cause. At oral argument, the respondent suggested that, if this court were inclined to accept the petitioner’s futility argument, it would be preferable to create a limited exception for Salamon claims rather than to change the law on procedural default. With respect to prejudice, the respondent contends that the prejudice necessary to overcome procedural default can only be established if the petitioner demonstrates that he would not have been convicted had the jury been charged in accordance with Salamon, a burden that the petitioner cannot meet.
In response, the petitioner first contends that the habeas court properly concluded that there had not been a procedural default. The petitioner asserts that the respondent failed to plead and prove that affirmative defense. The petitioner further asserts that the habeas court properly concluded that Luurtsema II compels the conclusion that there had been no default because that decision examined the policies underlying procedural default and found them to be outweighed by the importance of providing a habeas corpus remedy for persons convicted prior to Salamon under the incorrect interpretation of kidnapping. Alternatively, the petitioner contends that the Appellate Court properly concluded that he had established cause and prejudice to excuse any procedural default. We agree with the petitioner that Luurtsema II effectively ...