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Nogueira v. Commissioner of Correction

Court of Appeals of Connecticut

October 11, 2016

LEONARDO NOGUEIRA
v.
COMMISSIONER OF CORRECTION

          Argued April 13, 2016

         Appeal from Superior Court, judicial district of Tolland, Cobb, J.

          Sarah 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.

          OPINION

          DiPENTIMA, C. J.

         The 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).[1] We disagree with the conclusion of the habeas court, and, accordingly, reverse the judgment granting the petition for a writ of habeas corpus.

         The 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.

         These 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.[2] We affirmed the judgment of conviction on direct appeal. Id., 826.

         Following 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.[3]

         The 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).[4] 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 (2013).

         The 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.[5] 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 prejudice requirement.

         At the 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 issue.''

         On June 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.

         The 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.''

         The 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.[6] 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.

         After 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.

         In 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.

         In 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.

         The 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 default[7]as 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.

         The 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.

         Before 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.

         Our 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).

         The 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.

         In a 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.

         On 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.

         ‘‘On 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.

         ‘‘At 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 two hours.

         ‘‘Now, 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.

         ‘‘During 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.

         ‘‘Also, 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.

         ‘‘Well, 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.

         ‘‘Michelle 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 assault her.

         ‘‘At 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. . . .

         ‘‘So, 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 my ...


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