Argued January 11, 2016
Appeal from Superior Court, judicial district of Tolland, Bright, J.
Mary Boehlert, assigned counsel, for the appellant (petitioner).
Lisa Herskowitz, senior assistant state’s attorney, with whom, on the brief, were Brian Preleski, state’s attorney, Angela R. Macchiarulo, senior assistant state’s attorney, and Michael Proto, assistant state’s attorney, for the appellee (respondent).
Lavine, Sheldon and Mullins, Js.
In this habeas corpus action, the petitioner, John Farmer, challenged his kidnapping conviction on the ground that the trial court had failed to instruct the jury, in accordance with State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), that to find him guilty of kidnapping, it had to find that he intended to restrain the victim to a greater degree than was necessary to commit assault. The habeas court concluded that the trial court’s failure to give this instruction was error, but that the error was harmless. As a result, the habeas court denied the petition for a writ of habeas corpus. We affirm the judgment of the habeas court.
The petitioner was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), and assault in the second degree in violation of General Statutes § 53a-60 (a) (1). After a trial, the jury found the petitioner not guilty of all of the crimes expressly pleaded in the information but found him guilty of the lesser included offenses of kidnapping in the second degree in violation of General Statutes § 53a-94 and assault in the third degree in violation of General Statutes § 53a-61 (a) (1). The trial court sentenced the petitioner on those charges to a total effective term of twenty years imprisonment.
On direct appeal, this court affirmed the petitioner’s conviction. State v. Farmer, 108 Conn.App. 82, 946 A.2d 1262, cert. denied, 288 Conn. 914, 954 A.2d 185 (2008). This court stated that the jury reasonably could have found the following facts: ‘‘The [petitioner] and the [victim] lived together in an apartment in Bristol. Starting in mid-morning on October 19, 2004, they began to drink heavily and continued to do so through the day and evening. After watching a baseball game on television at the home of the [petitioner’s] brother, the [victim] began to drive both of them home. The [petitioner] insisted that he should drive because she was too inebriated to do so. He assaulted her physically to force her to relinquish the driving of the car to him. Instead of driving them home to their apartment, the [petitioner] drove to a desolate dirt road in Burlington where he resumed his physical assault of the [victim], removed her underclothes and engaged in sexual conduct with her. Eventually, the [petitioner] drove the [victim] to his mother’s house in Bristol. The next morning he allowed her to drive herself home. . . .
‘‘[The victim] called the police, whom she accompanied to the dirt road where the [petitioner] had taken her. There they found her ripped underwear on the ground. A subsequent physical examination of the [victim] at Bristol Hospital confirmed that she had been beaten.
‘‘The [petitioner] did not deny striking the [victim] but said that he had done so in self-defense after the [victim] had begun hitting him. He acknowledged that he had engaged in sexual conduct with the [victim] but alleged that their sexual engagement had been consensual. The jury rejected his first defense but accepted the second one.’’ Id., 84–85.
The petitioner thereafter filed an amended petition for a writ of habeas corpus. In his amended petition, he alleged, in count two,  that his kidnapping conviction could not stand because it was obtained under the pre-Salamon interpretation of the kidnapping statute. After a trial, the habeas court denied the petition. In its memorandum of decision, the habeas court concluded that the trial court’s instructional impropriety was harmless. The habeas court then granted the petitioner’s petition for certification to appeal. This appeal followed. Additional facts will be set forth as necessary.
On appeal, the petitioner claims that the habeas court improperly concluded that the trial court’s failure to instruct the jury on the kidnapping charge in accordance with the principles of Salamon was harmless. We disagree.
We first set forth the applicable standards of review and principles of law. ‘‘The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous.’’ (Internal quotation marks omitted.) Anderson v.Commissioner of Correction, 313 Conn. 360, 375, 98 A.3d 23 (2014), cert. denied sub nom. Anderson v.Semple, U.S., 135 S.Ct. 1453, 191 L.Ed.2d 403 (2015). The applicability of Salamon and whether the trial court’s failure to give a Salamon instruction was harmless error are issues of ...