April 13, 2016
from Superior Court, judicial district of Tolland, Cobb, J.
Hanna, assistant state's attorney, with whom, on the
brief, were Stephen J. Sedensky III, state's attorney,
and Jo Anne Sulik, supervisory assistant state's
attorney, for the appellant (respondent).
Michael W. Brown, for the appellee (petitioner).
DiPentima, C. J., and Mullins and Flynn, Js.
DiPENTIMA, C. J.
respondent, the Commissioner of Correction, appeals from the
judgment of the habeas court granting the petition for a writ
of habeas corpus filed by the petitioner, Leonardo Nogueira.
On appeal, the issue before this court is whether the habeas
court properly determined that the respondent had failed to
establish, beyond a reasonable doubt, that the result in the
petitioner's 2002 criminal trial for kidnapping in the
first degree would have been the same had the criminal trial
court applied the interpretation of kidnapping subsequently
adopted by our Supreme Court in State v.
Salamon, 287 Conn. 509, 949 A.2d 1092
(2008). We disagree with the conclusion of the
habeas court, and, accordingly, reverse the judgment granting
the petition for a writ of habeas corpus.
following facts and procedural history are relevant to our
discussion. Following a trial to the court, the petitioner
was convicted of kidnapping in the first degree in violation
of General Statutes § 53a-92 (a) (2) (A), sexual assault
in the first degree in violation of General Statutes §
53a-70 (a) (1), attempt to commit sexual assault in the first
degree in violation of General Statutes §§ 53a-70
(a) (1) and 53a-49 (a) (2), assault in the third degree in
violation of General Statutes § 53a-61 (a) (1) and
threatening in violation of General Statutes (Rev. to 1999)
§ 53a-62 (a) (1). State v. Nogueira,
84 Conn.App. 819, 820, 856 A.2d 423 (2004), cert. denied, 273
Conn. 927, 873 A.2d 1000 (2005). Following the
petitioner's conviction, the court, White, J.,
sentenced him to thirty-five years incarceration. Id., 822.
criminal charges stemmed from an incident that occurred on
November 11, 2000, in Danbury when the victim was attacked by
the petitioner at approximately 9 p.m. Id., 821. The
petitioner grabbed the legs of the victim, dragged her along
the sidewalk and forced her into a window well where he
sexually assaulted her for two hours. Id. The victim
escaped from the window well and fled from the petitioner,
who pursued her. Id. She grabbed onto a telephone
pole, but the petitioner strangled her, causing her to loosen
her grip. Id. He then hauled her between two houses,
and kept her in that location for a period of five to ten
minutes. The petitioner absconded upon the arrival of the
police. Id. We affirmed the judgment of conviction on
direct appeal. Id., 826.
his conviction and direct appeal, our Supreme Court
‘‘issued two watershed decisions pertaining to
kidnapping crimes, State v. Salamon,
[supra, 287 Conn. 509], and Luurtsema v.
Commissioner of Correction, 299 Conn. 740, 12 A.3d
817 (2011).'' Wilcox v. Commissioner of
Correction, 162 Conn.App. 730, 736, 129 A.3d 796 (2016).
Stated succinctly, ‘‘[p]ursant to the holdings of
these decisions, a defendant who has been convicted of
kidnapping may collaterally attack his kidnapping conviction
on the ground that the trial court's jury instructions
failed to require that the jury find that the defendant's
confinement or movement of the victim was not merely
incidental to the defendant's commission of some other
crime or crimes.'' Id.
petitioner filed a petition for a writ of habeas corpus
alleging ineffective assistance of both his trial and
appellate counsel. Following a habeas trial, the court,
Nazzaro, J., issued a memorandum of decision denying
the petition. Nogueira v. Warden, Superior
Court, judicial district of Tolland, Docket No.
CV-06-4001062, 2011 WL 3890968 (July 22, 2011). The habeas court
then denied certification to appeal. We subsequently
dismissed the petitioner's appeal. Nogueira v.
Commissioner of Correction, 142 Conn.App. 906, 64
A.3d 1289, cert. denied, 309 Conn.App. 902, 68 A.3d 657
petitioner commenced a second habeas action and filed an
amended petition for a writ of habeas corpus on April 8,
2015. In count one, the petitioner alleged that his
conviction of kidnapping in the first degree violated his
right to due process because there was no specific finding by
Judge White in his criminal trial that he had intended to
prevent the victim's liberation for a longer period of
time than was necessary to commit the crime of sexual assault
in the first degree. In counts two and three, the petitioner
alleged ineffective assistance of his first habeas counsel
and his appellate habeas counsel. The respondent filed an
answer and raised the affirmative defense of procedural
default as to count one. The petitioner filed a response,
arguing that (1) he was not procedurally defaulted and (2) in
the alternative, if count one of the petition was subject to
a procedural default, then he satisfied the cause and
habeas trial on May 27, 2015, the parties agreed that the
court should consider the ‘‘criminal trial
transcripts, direct appeal materials, first habeas trial
transcripts, and pleadings and the habeas appeal materials as
well.'' Additionally, the parties agreed that no
additional testimony was necessary. Counsel for the
petitioner explained that because the petitioner's
conviction occurred in a trial to the court, rather than a
jury, his claim was not a jury instruction issue, but rather
a ‘‘Salamon fact-finding
10, 2015, the court, Cobb, J., issued its memorandum
of decision, concluding that the petitioner's
constitutional right to due process was violated as a result
of the criminal court's failure to apply the
Salamon standard for kidnapping that was made
retroactive to habeas proceedings in Luurtsema v.
Commissioner of Correction, supra, 299
Conn. 740. The habeas court granted the petition for a writ
of habeas corpus, vacated the petitioner's conviction of
kidnapping and remanded the case to the criminal trial court
for a new trial on the kidnapping charge.
habeas court stated the petitioner's claim as follows:
‘‘[H]is rights to due process of law pursuant to
the fourteenth amendment to the United States constitution
and article first, §§ 8 and 9, of the Connecticut
constitution were violated because he was convicted of
kidnapping absent a finding by the fact finder, in this case
the [criminal] trial court, that the victim was restrained to
an extent exceeding that which was necessary to accomplish or
complete the crime of sexual assault, and other crimes, as
now required by State v. Salamon,
supra, 287 Conn. 509.''
habeas court stated that it was undisputed in the present
case that Judge White, in 2002, had not applied the
Salamon standard, which was not part of our law
until 2008, in finding the petitioner guilty of kidnapping in
the first degree. ‘‘In particular, the [criminal]
trial court did not consider whether the petitioner intended
to move or confine the victim in a way that had independent
criminal significance, that is, that the victim was
restrained to an extent exceeding that which was necessary to
accomplish or complete the other crime, in this case the
sexual assaults and other crimes.'' The habeas court,
therefore, concluded that the petitioner had suffered a
violation of his due process rights. It then rejected the
respondent's affirmative defense of procedural
default. For a remedy, it followed Luurtsema
v. Commissioner of Correction, supra,
299 Conn. 740, and ordered that the case be returned to the
criminal trial court for a new trial on the charge of
kidnapping in the first degree. On June 22, 2015, the
respondent filed a petition for certification to appeal,
which the habeas court granted. This appeal followed.
Additional facts will be set forth as necessary.
this court heard oral argument in the present case, our
Supreme Court released its decision in Hinds v.
Commissioner of Correction, 321 Conn. 56, 136 A.3d
596 (2016). That decision contains a historical review of the
changes to our kidnapping law and establishes the proper test
for determining whether the failure to apply the
Salamon standard constituted harmless error.
Accordingly, a detailed review of Hinds will
facilitate our analysis of the respondent's appeal in the
case before us.
Hinds, the court began by noting that the hallmark
of the crime of kidnapping ‘‘is an abduction, a
term that is defined by incorporating and building upon the
definition of restraint.'' Id., 66-67. It
then turned to State v. Chetcuti, 173 Conn.
165, 170-71, 377 A.2d 263 (1977), in which the court had
rejected the claim that if the abduction and restraint of a
victim are merely incidental to another crime, that abduction
and restraint cannot support a conviction of kidnapping.
Hinds v. Commissioner of Correction,
supra, 321 Conn. 67. ‘‘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. Despite a number of
challenges over the years, our Supreme Court consistently
maintained that position with respect to the kidnapping
statute. Id., 67-68.
State v. Salamon, supra, 287 Conn.
509, however, our Supreme Court reexamined its interpretation
of the crime of kidnapping, and reached a conclusion contrary
to three decades of its prior holdings. Hinds v.
Commissioner of Correction, supra, 321
Conn. 68. The court in Salamon 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 in original; internal
quotation marks omitted.) Id., 68-69.
court in Hinds then turned to Luurtsema v.
Commissioner of Correction, supra, 299
Conn. 740, which had 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.'' Hinds v. Commissioner of
Correction, supra, 321 Conn. 69. With those
principles in mind, the court addressed the issue of whether
the petitioner's Salamon claim was subject to
the doctrine of procedural defaultas a result of his failure to
challenge the kidnapping instruction at his criminal trial.
Id., 70. Ultimately, our Supreme Court concluded
that a Salamon claim, as raised by the petitioner,
was not subject to procedural default. Id., 76.
court proceeded to the question of whether the petitioner was
entitled to a new trial as a result of the omission of the
proper instruction on kidnapping pursuant to
Salamon. Id. It determined that the proper
test to apply was the harmless error standard applied on a
direct appeal to a claim that an essential element is absent
from a jury instruction. Id., 76-77.
‘‘On direct appeal, [i]t is well established that
a defect in a jury charge which raises a constitutional
question is reversible error if it is reasonably possible
that, considering the charge as a whole, the jury was misled.
. . . [T]he test for determining whether a constitutional
error is harmless . . . is whether it appears beyond a
reasonable doubt that the error complained of did not
contribute to the verdict obtained. . . . A jury instruction
that improperly omits an essential element from the charge
constitutes harmless error [only] if a reviewing court
concludes beyond a reasonable doubt that the omitted element
was uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the
error . . . . The failure to charge in accordance with
Salamon is viewed as an omission of an essential
element . . . and thus gives rise to constitutional
error.'' (Citations omitted; internal quotation marks
omitted.) Id., 77-78. Following a consideration of
the factors set forth in Salamon as applied to the
facts, the court in Hinds concluded that the
omission of the required instruction was not harmless beyond
a reasonable doubt. Id., 78-81.
considering the present case in light of the controlling
principles set forth in Hinds, we address one
characteristic distinguishing it from the majority of
post-Salamon appellate cases. In this matter, the
petitioner was convicted following a trial to the court,
whereas most of the post-Salamon cases have involved
jury trials. One exception, however, is State v.
Thompson, 118 Conn.App. 140, 983 A.2d 20 (2009),
cert. denied, 294 Conn. 932, 986 A.2d 1057 (2010). In that
case, the defendant was convicted of kidnapping in the first
degree, sexual assault in the first degree and attempt to
commit sexual assault in the first degree. Id.,
142-43. On appeal, he argued, inter alia, that his conviction
of kidnapping in the first degree should be reversed
following the new interpretation of that crime. Id.,
143. In the context of a trial to the court, we stated that
‘‘the court was required to have made a specific
factual finding, if it determined that such a finding was
justified by the evidence, that the defendant . . . must have
intend[ed] to prevent the victim's liberation for a
longer period of time or to a greater degree than that which
[was] necessary to commit the other crime.''
(Internal quotation marks omitted.) Id., 161. We
also described a ‘‘Salamon
finding'' as ‘‘one that, when reasonably
supported by the evidence, the restraint was or was not
merely incidental to some other, separate crime.''
Id., 161 n.10.
task, therefore, is to examine the facts of the present case
through the analytical lens of Hinds v.
Commissioner of Correction, supra, 321
Conn. 56, to determine if the absence of a specific factual
finding as required by Salamon constituted harmless
error. Our standard of review is well established.
‘‘[W]hile [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.) Id., 65; see
also Farmer v. Commissioner of Correction,
165 Conn.App. 455, 459, 139 A.3d 767 (2016) (applicability of
Salamon and whether trial court's failure to
give Salamon instruction was harmless error
constitute issues of law subject to plenary review).
issue of whether the movement or confinement of a victim
merely was incidental to and necessary for another crime,
such as sexual assault, is dependent on the facts and
circumstances of each case. State v.
Salamon, supra, 287 Conn. 547; see also
State v. Hampton, 293 Conn. 435, 460, 988
A.2d 167 (2009); Wilcox v. Commissioner of
Correction, supra, 162 Conn.App. 743; Eric
M. v. Commissioner of Correction, 153 Conn.App.
837, 843-44, 108 A.3d 1128 (2014), cert. denied, 315 Conn.
915, 106 A.3d 308 (2015). Accordingly, we begin with a
detailed recitation of the facts of the present case.
long form information dated October 25, 2001, the state
charged the petitioner with kidnapping in the first degree as
follows: ‘‘In the Superior Court of the State of
Connecticut at Danbury, Warren Murray, Supervisory Assistant
State's Attorney for the Judicial District of Danbury,
accuses [the petitioner] of the crime of Kidnapping in the
First Degree. It is further charged that in the city of
Danbury, Connecticut, on or about the 11th day of November
2000, the said [petitioner], abducted another person, and
restrained the person abducted with the intent to sexually
abuse that person in violation of Connecticut General
Statutes Section 53a-92 (a) (2) (A). This crime occurred in
the vicinity of West and Harmony Streets.'' The state
also charged the petitioner with sexual assault in the first
degree by means of fellatio, attempt to commit sexual assault
in the first degree by means of vaginal penetration, assault
in the third degree and threatening.
April 12, 2002, at the conclusion of the petitioner's
criminal trial, the court issued an oral decision finding him
guilty on all charges. Specifically, the court stated:
‘‘I will indicate that my decision's based on
my review of the entire evidence, the testimony of all the
witnesses, as well as the exhibits, and I will make some
general findings of fact here. And I want to make it clear
that my decision isn't limited to the findings I'm
going to make now, but I will mention some factual findings
specifically, but I've relied on others as well.
or about November 11, 2000, at between 8 p.m. and 9 p.m. in
the evening, on the-on or near the corner of West Avenue and
Harmony Street here in Danbury, the victim . . . was walking
in the direction of the Food Bag store and encountered the
[petitioner] while he was riding on his bicycle.
that time, the [petitioner] attempted to engage the victim in
conversation. The victim indicated that she was not
interested in engaging in a conversation and attempted to
leave. And at that time the [petitioner] got off of his
bicycle, physically grabbed the victim by the legs, dragged
her along the ground for a distance of approximately 113 feet
to a window well adjacent to a nearby church. The
[petitioner] forced the victim into the window well and kept
her there for a period of time between an hour-and-a-half and
during that encounter, the victim was forced to remove her
clothing. She lowered her pants part way, and after she did
that the [petitioner] knocked her to the ground and got on
top of her and tried to insert his penis into her vagina. As
he was doing that, the victim was struggling and screaming,
scratching and clawing, but the [petitioner] use[d] superior
strength to hold her down in this effort to, as I said,
insert his penis into her vagina.
the course of their time in the window well, the [petitioner]
also grabbed the victim by the hair and forced her head down
to his groin area. And on a mini-mum-or at a minimum of three
times, forced her head on-or her mouth onto his penis and
inserted in-his penis was inserted into her mouth.
during the course of the encounter, the victim attempted to
escape, repeatedly, and repeatedly the [petitioner]
physically stopped her from leaving and, in fact, at one
point threatened to kill her and told her that he wasn't
going to let her leave until he was finished.
at some point after, a dark-haired Hispanic male encountered
the [petitioner] and the victim, and engaged the [petitioner]
in some altercations. The victim finally managed to escape,
but was chased by the [petitioner]. And at or about the
corner of West Street and Harmony Street, the victim threw
herself on the hood of a maroon car driven by Michelle
Emmanuel, who was with her boyfriend at the time, and who saw
the [petitioner] chasing after the victim. The victim at the
time was screaming for help.
Emmanuel locked the doors to her car, but continued to watch
what was going on. And she says that the-well, the evidence
establishes that the victim again tried to get away from the
[petitioner]. She ran to a nearby telephone pole or utility
pole and held onto it. The [petitioner] pried her from the
pole, dragged her to a nearby area between a white house and
a detached garage, and appeared to again attempt to sexually
the time of the encounter between the house and the garage,
Ms. Emmanuel was flashing her lights in the
[petitioner's]-in the victim's direction and honking
her horn. [The petitioner] looked at her but continued doing
what he was doing. Ms. Emmanuel called the police who arrived
shortly thereafter. . . .
those are some preliminary findings-or general findings of
facts. As I indicated, I want to make it clear those
aren't the only facts that I'm relying on in making